Cowboy builder

[kenwood]

I'm seriously considering suing a cowboy kitchen fitter for what he has done.

 

I dont want to put too much detail here as there is a chance he will read it, who knows.

He is a cowboy and he knows it.

 

However, I keep hearing there is no point in suing someone if he doesnt have money.

 

If this type of fitter is charging people say £200 per day then there is money coming in.

 

As far as I'm aware he is self employed and the name he trades under is not a limited company.

 

I'm in no doubt whatsoever that I would win the judgement, I have reams of proof and photographic evidence.

 

My only concern is, given how devious he is, he must have a way to hide his income.

 

Surely we do not live in a world where a halfwitted builder can outsmart the legal system?!!

 

How would I overcome this?

 

 

Advice appreciated.

Edited March 13, 2018 by dx100uk
spacing

[honeybee13]

Hello there.

 

As you're talking about court proceedings, I think the legal forum might be a better place for your thread. I'll move it and leave you a short term redirect on this forum.

 

My best HB

[steampowered]

Indeed. If someone does not have any money there is little point suing them.

 

There are ways to get money awarded by the court. You could send bailiffs round (assuming you know his address and he has assets at that address), try for a third party debt order against his bank account (if you know who he banks with), serve a statutory demand followed by bankruptcy petition (if the debt is above £750, this one is difficult to achieve without knowing his address), attachment of earnings order (if you can identify a source he is getting money from and that source is likely to comply with the AOE order), among other things. These all have their plus points and their drawbacks but all require some information about him, an extra court fee and some effort to follow through.

[kenwood]

Thank you steampowered, I have his address and am willing to go through with the above. Bailiffs and bankruptcy petition will do it!

[kenwood]

Hi, i have another question. Is it true that I should leave the faulty work as it is until the case goes to court?

[steampowered]

Hi,

 

I don't think there is. You would normally claim for the cost of putting the work right - i.e. putting you in the position you should be if the work was done properly. Therefore you should, at least, get a few written quotes from other builders for the cost of putting it right.

 

In larger value cases where there is a real dispute about the quality of the work, the court would sometimes order that an expert is asked to visit the property and prepare a report. However this is unlikely to be necessary if you are in small claims track (claim under 10k) and you have very clear evidence... as long as the evidence is there you should feel free to get this sorted immediately and claim the cost from him.

[kenwood]

Thank you

[kenwood]

Hi again, I

sent a letter before action 2 weeks ago to the builder and he sent 2 nasty emails to me with a list of lies and said he would sue me for non-payment.

 

I've never started a court action and am worried about the case being thrown out on a technicality, especially given that it is such an expensive process and the outcome isnt guaranteed.

 

I want to make a claim against this guy on three points relating to wasting time and non-performance whilst charging me weekly, for getting the order wrong and for miscalculating the seriousness of an obstruction if indeed he even noticed it.

 

I've paid the guy around £2,300 and am receiving quotes for about £3900 to redo and complete the work.

 

Furthermore I purchased about £700 of panels that are useless based on his order.

 

Will also need new items and possibly a stud wall to overcome the obstruction he missed.

 

What he has done already is bodged.

 

Can you please advise me as to what procedure I should follow?

 

Having looked at Claims on line, my statement and enclosures are way too long for that method.

 

Also do I really have to try harder to "mediate" with him given that he has gone off with so much money and will not respond to my emails?

 

I'm finding it all a bit daunting but I believe I have a strong claim.

 

Advice appreciated.

Edited March 13, 2018 by dx100uk
spacing

[steampowered]

If you feel you have a good claim and are prepared to put the time and effort in, then I think county court is definitely the way to go. Small claims track (claims under 10k) is designed to be cheap, accessible and low-risk. It is only expensive if you hire a solicitor. There is a court fee but this is pretty small. If you are claiming less than 10k it is very rare for either side to be ordered to pay the other side's legal costs, only where the court thinks one side has acted unreasonably.

 

County court claims rarely get thrown out on a technicality. When people say this happened they usually mean that they missed important deadlines without a good excuse. You avoid this by checking the deadlines and making sure you meet them. Do not be one of those people who constantly leaves things to the last minute.

 

You do not have to mediate. The court expects each side to try and settle the dispute, which is the purpose of the letter before action. It is standard practice to tick the box saying you are willing to consider mediation on the questionnaire which comes after he has filed a Defence, but in reality it rarely happens. If he contests the claim you will need to face him in the court room (usually just the judge's office) in front of the judge - he has the right to defend himself.

 

You are right there is no guarantee of success. Your chances depend on your evidence. If he defends the claim and says the work was fine, you will need to prove your case by providing evidence of the botched work.

 

You can file a claim on moneyclaimonline, which you can find on google. This is a breach of contract claim; you are alleging the builder did not do what he promised and/or that he breached his implied obligation to exercise reasonable skill and care. The law only allows you to claim for financial loss, such as the repair costs of getting another builder in to put things right. You will not be awarded compensation for wasted time spent dealing with this or general stress.

[skintandfat]

Good luck

 

I have had run ins with builders before

One thing that may be useful (it is in Scotland, don't know about the rest of the UK).

If he is a landlord (many builders are) you can go for a rent attachment order. If you have a court decree you can use this. It makes it an offence for a tenant or letting agent to pass on rental income to the landlord without satisfying the debt

[kenwood]

Thank you for your advice.

 

There is a lawyer in my office who is a Corporate lawyer, he keeps telling me to see a Consumer lawyer to assess my case.

Is it really vital to do so?

 

Having spoken to CAB, they say my claim would fall under the terms of Goods and Services Act.

 

Given what you have said above, it's easier for me to work through this on a contractual basis as it is more logical/ black and white. His estimate has been deliberately written in a way to trip up the customer, eg by asking for staged payments.

 

Is there any point is stating in my claim that this is "onerous" or whatever the word is to describe that it deliberately seeks to exploit the customer or is it too late for that?

 

The other issue he keeps going on about is that he has (deliberately) listed ceramic tiles whereas I have bought non-ceramic tiles so he feels I owe him for that.

 

However he hasnt even tiled the walls so why bother to mention it?!!

 

The guy is really a nasty piece of work and there is no depth he wouldnt stoop to!

 

He hasnt even returned my keys.

 

He says he has posted them but they havent arrived.

 

I'm going to add the cost of new locks to my claim.

 

I have received hundreds of items in the post without even one being lost but amazingly his parcel was lost in the post supposedly.

Edited March 13, 2018 by dx100uk
spacing

[kenwood]

Good luck

 

I have had run ins with builders before

One thing that may be useful (it is in Scotland, don't know about the rest of the UK).

If he is a landlord (many builders are) you can go for a rent attachment order. If you have a court decree you can use this. It makes it an offence for a tenant or letting agent to pass on rental income to the landlord without satisfying the debt

 

I doubt that he is that sophisticated and no mention was made but how would I find out if he owns other property?

[steampowered]

The Supply of Goods and Services Act 1982, section 13 says that services provided by a business should be operated with reasonable care and skill. That is what I meant when referring to "implied obligation to exercise reasonable care and skill" in post 9.

 

There is no point claiming that the staged payments were onerous. He is entitled to structure payment in any way he likes. You agreed to that payment plan so it forms part of the contract.

 

I don't understand why the tiles are relevant to be honest. He has to provide the services he contracted to provide, and he has to provide those services with reasonable care and skill. Failure to do so is a breach of contract. Providing a bit extra in one area does not let you breach the contract in other areas.

 

This seems like a very straightforward claim to me. I do not think it is necessary to see a "consumer lawyer". The important thing is to take the time to clearly and fully complete court documents, so that the judge knows what your claim is all about and so that you have the evidence to prove it at trial, and make sure you meet all deadlines and follow court procedures.

[kenwood]

Thank you Steampowered.

 

With the payments at least I can prove I maintained my end of the bargain.

The drivel in his emails was aimed to sidetrack me into thinking he is in a position where he can counter claim.

 

There is a lot of drivel about his "contract" being on the basis that I would order the units from a particular supplier but in his earlier emails he says something like

 

"I've created a plan for you so that you can order the items on line or at any outlet"

but there is absolutely no mention of supplier 'a' in the estimate.

 

Also given that he did do some of the work with the cabinets,

doesnt it imply that it was acceptable to him that I ordered the items from supplier 'b' instead of supplier 'a'?

 

My understanding is that is that if the items were materially different he should not have commenced the work.

 

Another area where I think I can trip him up is in his letter/estimate there is a paragraph saying

"We have priced for a total works therefore any aspect of works not required will be deducted from the overall estimate".

 

My point would be can this be applied retrospectively?

He is placing a lot of emphasis on the things he hasnt done.

 

He didnt even make a start on the second side because he was pretending a door from an oven housing is missing and he could not proceed without it, thereby deliberately wasting time.

 

He only brought this to my attention on Thursday evening saying he needs it for Monday.

 

I chased the supplier and the door was present all the time.

He didnt even turn up on Monday.

 

When I tried to pin him down to do the agreed work for the agreed amount he did not come back because of course he was in a favourable position of having taken about 90% of the money but having performed less than 50% of the work.

 

in that respect the staged payments were not in line with the amount of work he had actually carried out.

Edited March 13, 2018 by dx100uk
spacing

[skintandfat]

Be factual, concise and keep to the point.

 

You need to establish a contract,

detail the works carried out to a suitable standard

detail the shortcomings

work out a cost to put things right

sue for the value

 

It may be an idea to contact a surveyor or an architect to establish a value of the works carried out and a cost to put things right.

Use a surveyor from a recognised professional body - this shows you are not calling in a 'favour from a friend'

Is the builder registered with any regulatory bodies (FMB etc)

 

Contact trading standards- they can take up the complaint on your behalf (for free)

 

Did he ask for cash only?

Is he VAT registered?

[steampowered]

I don't quite follow this supplier stuff. The court will be interested in whether he has breached the contract and what damages you should be awarded to put you in the position you would be in if he did his job properly .... i.e. the cost of putting it right. If you have only paid part of the price this will have to be factored in.

[ukaviator]

Check with your home insurance policy, you may have legal cover for this type of claim. Home insurance can be surprisingly versatile, and your policy may also contain some other goodies that you may not have considered. This can be a cheaper way of protecting yourself in certain situations, such as in this case a legal dispute.

[kenwood]

Hi Steampowered, there are a few twists to this.

 

The fitter was in constant touch with me by email prior to starting work.

He couldnt wait to get his foot in the door.

 

As at 18th I hadnt even placed my order and said something like

"I'm more or less ready to place my order"

 

So he immediately booked himself in to start on the 25th with some story about a last minute cancellation.

 

I didnt place the order till 21st and there were delays in the delivery arriving which ultimately meant he was in my flat for 2 weeks instead of 1 before the kitchen units arrived.

 

In those 2 weeks all they did was lay the floor tiles, and skim the ceiling and the tops of the walls that would be visible and strip just one side of the kitchen.

 

None of the preliminary electrical or plumbing work was done and he left the side where the appliances are till the last minute.

 

He pretended he was doing this so that I would not be left without the use of the appliances but I didnt care, progress was more important than having the use of the appliances.

 

Furthermore, he sent his son to my home most days in those two weeks to make a presence and collect a cheque at the end of the week, while apparently he was fitting out someone else's bathroom.

 

I did switch suppliers because the second one was going to deliver sooner than the first one.

 

He is pretending his contract was based on me ordering the kitchen from the first supplier and now is trying to blame all the shortcomings with the wrong panels etc on the fact that I switched suppliers.

 

The truth is he didnt specify the correct panels.

 

As at 20th I had emailed him asking him to clarify the panels but I didnt even get a response.

 

So that also was a contributory factor in the delay of me ordering the kitchen.

 

I ordered the same brand but from a different supplier.

It's not like I changed from say Poggenpohl to Ikea.

 

He's trying very hard to blame outside factors.

 

at the end of the third week he stated categorically there is a door missing and he cannot proceed.

 

He didnt even bother to come in on Monday but the door was here all along.

 

At that point it really hit home that he is messing me around so I asked him to take a break until the missing doors arrive.

 

The supplier did not send the missing doors so the fitter used that as an excuse not to come back even though he has left me in the lurch like this.

 

He could have finished the kitchen minus a missing door

- that is what we had agreed on but he did 3 no shows in a row and did not come back after that. Hope that makes sense!

 

Thank you - I've tried, there is a clause about not covering work by workmen that has gone wrong.

 

My statement of claim is about 6 pages long - is that too long?

Trading standards have not helped at all.

 

Builder is not registered with any body as far as I'm aware.

 

He is not VAT registered and I paid a combination of cash and cheques which he receipted.

[ukaviator]

Are you able to scan up the claim without your personal information for us to go over?

 

Are you in a union?, you may have some legal cover there.

[steampowered]

6 pages is not necessarily too long. HOWEVER - the length must be justified. The important thing is that your Particulars of Claim is easy to read and that it is clear. It must be immediately obvious to the judge (1) that there was a contract to provide services, (2) what the builder had promised to do as part of that contract, (3) exactly how the contract has been breaached, (4) what loss you have suffered due to the builder's breach of contract.

 

These four points must be absolutely crystal clear. You cannot allow them to get lost underneath masses of detail.

 

Happy to take a quick look if you want to post up the draft POC with personal information removed.

[kenwood]

Wow - that's fantastic thank you! Hope it works. The names used are fictitious

Edited June 11, 2013 by kenwood

[steampowered]

Hi,

I think you have done a great job with this. It tells your story effectively. However I think you would benefit from restructuring this. The legal basis for some of your claims has got a bit lost among the details. Remember you need to persuade the judge you have a legal remedy for breach of contract; persuading the judge that this man is a git is not enough.

 

I would restructure along the lines of the following basic template. The key point is that you need to be very precise about how the things you complain about are a breach of contract and how that breach has caused you loss. This is not always an easy exercise but doing it now will save you a lot of heartache down the line.

 

1. The Defendant is, and at all material times, a tradesman holding himself out as having expertise in fitting kitchens. The Claimant is a consumer.

2. On or around [date], the Defendant provided a written proposal to refurbish the Claimant's kitchen (Appendix 1). On or around [date], the Claimant accepted the Defendant's proposal forming a contract on the basis of that proposal.

3. This is a breach of contract claim resulting from the Defendant's failure to comply with his obligations under the contract.

 

Terms of the contract

4. The written proposal, which formed part of the contract between Claimant and Defendant, contained the following relevant express terms:

4.1 [identify term]

4.2 [repeat as needed]

 

5. Further, pursuant to s13 Supply of Goods and Services Act 1982, it was an implied term that the Defendant would carry out services under the contract with reasonable care and skill. On or around [date] the Defendant orally represented to the Claimant that he had 20 years' experience of fitting for kitchens and had worked for places like Magnets. The standard of care and skill to be expected from the Defendant is the standard of care and skill expected from an experienced tradesman with particular expertise in the area of kitchens.

 

Breach of contract

6. In breach of the terms set out above, the Defendant has failed to adequately furnish the Claimant's kitchen.

 

Particulars of Breach

 

7. In breach of the express term set out at paragraph [4.1] and the implied term set out at paragraph 5, the Defendant failed to [explain].

8. [repeat for each breach of contract]

 

Loss and Damage

9. As a result of the Defendant's breach of contract, the Claimant has suffered loss and damage.

Particulars of Loss

10. As a result of the breach of contract set out at paragraph [x], [set out the item of loss - e.g. the Claimant has to engage someone else to complete [item of work] at an expected cost of [x].]

11. [repeat for each item of loss]

 

12. The Claimant claims interest under Section 35A of the Senior Courts Act 1982 on such sums as are found due to him at such rate and for such period as the court thinks fit.

13. The Claimant has complied with the Practice Direction on Pre-Action Conduct.

 

AND THE CLAIMANT CLAIMS:

(1) Damages.

(2) Interest.

(3) Costs.

 

Some specific points:

- You should not ask the judge to read the Particulars in conjunction with anything else. The POC needs to be free-standing. If you need to refer to another document, you should attach that document to your POC and quote the relevant section. For exampe, where you refer to items 5, 6 and 17 you need to be clear about what those items are.

- This stuff about him not turning up, playing mind games with suppliers, lying about the door etc. does not really trigger a right to compensation because it did not cause you loss. I would leave it out the POC and save it for your witness statement, which comes later.

- Your claim for the stress of all this (e.g. paragraph 11 of your POC) is doomed to fail. In a contract like this you acn only claim for economic loss. However, you could say there was an implied term in the contract that the kitchen would be completed within a reasonable timeframe (say a month), and that due to breach of this term you have suffered economic loss through having to order take-aways ... and then estimate the amount. Same thing applies for food wastage.

- In the POC you should generally not say things like "the supplier said the work was rubbish". Unless you have a written report to back it up, or you plan to call these people as witnesses, it is baseless hearsay. Instead simply say the work was rubbish - not that someone else said it was not rubbish. The evidence for your assertions will come in at trial it is not necessary to have it now.

- Try to get a written quote as to how much it will cost to put things right. If you do not have exact figures, it is OK to estimate (just say that it is an estimate).

- It is unlikely you will be warded costs if this is small claims track (below 10k). Normal practice is to claim costs at trial, people do not usually put a figure for costs in the POC (since you will have to spend more time on this as it goes through the court system).

[kenwood]

Hi Steampowered, thank you so much - this is amazing. It exactly the kind of clarification I was hoping for as I feel a bit lost in the world of litigation! I realise now that I have combined the POC and Witness Statement and of course the POC needs to be more formal and to the point. I will put this to use immediately! I'm feeling a bit paranoid about the possibility that the fitter might look at this site. Would you mind if I take the attachment off?

Thanks again and best wishes.

Edited June 13, 2013 by kenwood

[steampowered]

No worries. Feel free to remove the attachment if you like.

 

To be honest even if the fitter did find this site the advantage he would get is pretty minimal. He will have plenty of time to formally respond to your Particulars of Claim in due course, a few extra days is unlikely to make much of a difference.

[kenwood]

Yes thats true - and of course given his performance so far, he'll just come up with yet more lies! Thank you, I feel like I have my work cut out for me as preparing a formal legal document is alien to me. I will follow your template diligently and maybe post it up again after the weekend!

All the best.