Cowboy builder

[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.

[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.

[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.

[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.

[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.

[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.

[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).

[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.

[steampowered]

You have done most of the work already ... there will be a lot of copy/pasting it is really just putting it into a format that makes things very clear and ensures you have explained the basis for claiming each item of loss.

Edited June 14, 2013 by steampowered

[steampowered]

Hi,

 

Great weekend thanks. You've done a great job with this, well done. Just a few small points:

 

- paragraph 7 - fill in the square brackets or delete the words "On or around [date]"

- paragraph 11 - tell the judge what the total contract price was

- I note that some of the claims raised in your previous version like the metal pipe, replacing keys and tin of ceiling paint have disappeared. Not sure if this is intentional.

[steampowered]

I don't think there is any way to get involved with the other action. Criminal proceedings and civil actions are treated differently. You'd need to get a CCJ and then take your own enforcement action I'm afraid.

[steampowered]

Your evidence doesn't need to be mentioned in the POC.

 

The online feedback would be admissible in small claims; if this is not a small claim then it could be seen as hearsay depending on how it is used and potentially inadmissible unless a hearsay notice has been served.

 

I think everything else you have mentioned in your post is admissible. Mention of criminal proceedings is perfectly fine - although to be honest with you the issue of whether he defrauded elderly people is not particularly relevant to the question of whether he botched your kitchen.

 

You do need to focus on proving what went wrong with the kitchen rather than getting distracted by these tangential issues. Remember that the judge is NOT there to decide whether this person is a nice man or not. He is there to decide whether you have a legal claim against him based on the work he did in your kitchen.

 

What he has done to the google page should be shown to the judge as evidence of unreasonable conduct which could trigger liability for him to pay costs at the litigant in person rate of 18quid per hour for time spent on the case. Bring a schedule of costs to the hearing.

 

How has he asked for the hearing to be adjourned? I would object, even if the bundle did arrive a few days late he presumably had time to review it before the hearing.

[steampowered]

Yes, you should definitely turn up at the hearing and try to get judgment. Never ever assume that a hearing has been adjourned unless the court has actually confirmed it. Good luck for the hearing!

 

I personally would show the google page incident to the judge and try to use as evidence of unreasonable conduct to get an additional award of costs on top of the claim amount (prepare a brief schedule of costs with an estimate of the time you have spent on the case at 18quid an hour if there is time).

 

I doubt the judge will be particularly interested in the exact date on which the bundle was delivered in a small claims case.

[steampowered]

Sorry to hear about that.

 

 

This is not uncommon. Building negligence cases are very difficult to adjudicate factually because it is very hard for someone who isn't a builder to tell from a courtroom whether or not a piece of building work was done properly. It is often very difficult to tell whether the work is as bad as the claimant says or whether the claimant is being unreasonable. The burden of proof is on you, as the claimant. If the judge is not totally convinced by the evidence you have provided he would often side with the Defendant. You might have achieved a better result with a solicitor, but then again you would not have been able to recover your legal fees - don't beat yourself up about it.

 

 

At least you did get something. To be honest it would be pointless for either of you to appeal - you can only appeal on the basis that the judge got the law wrong; not because you think the judge misunderstood the facts. The appeal courts don't re-hear any factual evidence. Either of you would need to get permission to launch an appeal and I would be very surprised if the cowboy manages to get permission.

 

 

I don't know what the alleged impropriety is but it sounds like nonsense. If he doesn't pay simply proceed to instruct bailiffs.

[steampowered]

On the letters, there is really no point getting into a mud-slinging match with him - trying to point out why he is lying or wrong will simply put him into a defensive frame of mind and make him even more obstinate. I would respond with a very short, factual statement saying that you do not accept the accusations and intend to proceed with enforcement of the order; briefly summarising the likely consequences for him.

 

Do be aware that applying for bankruptcy is not cheap. You need to double check but I think the cost for a creditor's petition is currently £920, which includes a £700 deposit for the official receiver's costs. You should get that back if the official receiver can identify assets but obviously that is not guaranteed. It may be cheaper and easier to hand the debt to a HCEO.