Everlasting Boilers Claimform - ***Claim Struck Out ***Now a 3rd and 4th Claim

[Leakie]

As Martin2006 has already stated

Get Gas Safe to check it out,

If it is a problem and unsafe then this will help your cause,

not only that if deemed to be unsafe and bad workmanship, then Gas safe will come down hard on the company and installer.

[leerob695]

Well just had the mediation phonecall

the woman doing the mediating says because they dicontinued the last case (a judge didnt strike it out ) they can issue a new claim anytime they like

told them i want an independant gas safe engineer to look at it before they lay a finger on the problems but seems they just want to keep in in house !

[AndyOrch]

CPR 38.7 says otherwise. But if you wish to take the word of court staff with no legal training:wink:

[leerob695]

Update

 

After having the mediation phone call it is now being transfered over to my local court

 

as above the woman on the phone says they are OK to put new claim in because a judge didnt strike it out so appreciate your comment

 

They have offered to come and put some floorboarding around the boiler in my loft and put a fixed light in

(This should of been done before the boiler went in my loft to conform with regulations)

 

By them saying this to me they are admitting its not finished

 

I Said i would prefer to get a full Gas safe report on the boiler before they came and undertook any further work so that the boiler will have all works to a conforming standard and then to get it checked once finished

 

The reason i asked this is because they have already done shoddy none conforming work and told me all is ok ...............They refused

 

Off to court we go

 

How do i bring to the courts notice the CPR 38.7?

 

Thank Andy for all your help

[AndyOrch]

Yes ..I wouldn't allow any work to be carried out by the defendants whilst this is a matter of a court claim.

 

You bring CPR 38.7 to the courts attention when it gets to trial..if it gets to trial..plenty of time yet for them to discontinue again

[leerob695]

UPDATE

 

I had Gas safe come out last week for an inspection on the Boiler fitting and although it came up with only 2 "defects" it is enough to show that the boiler fitting hasnt been finished

 

Also a couple of things that showed up such as A shade greener supplying me with a certificate for "Buldings regulations Compliance"

when the work carried out is not been done to the relavant standard regarding boarding loft light etc

so I was quite happy looking forward to my day in court

 

Today I have had a letter from my local county court stating that

 

IT IS ORDERED THAT

 

1. Claim is stayed pending an aplication under CPR 38.7

2 This order is made by the court of its own Initiative without hearing the parties or givin gthem an opportunity to make representations.

Any Party Affected by this order may apply to have it set asside, Varied or Stayed within 7 days of service uon them of this order

Dated 5th Spetember 2016

Is that an end to it now or is it just the start yet again?

 

Thanks In advance

[AndyOrch]

Unusual Order...the claim is only stayed and the order is made by the court of its own Initiative...pending a further application by the claimant to discontinue its claim...which looks inevitable...so almost there Leerob:wink:

 

Andy

[leerob695]

Here we go again.....

 

On 14th September I received the stayed claim pending application under CPR 38.7 to which irve still heard nothing from the court

I have looked online on the money claim website and it still only says that it was transfered to my local court on 17/8/16

 

Today I've received a letter from everlasting boilers asking for me to get 3 quotations for works to be carried out to to put this boiler to current standards

after they have received the report from Gas safe (the report said they had until the 23/9/16 to put it right .....today is the 26/10/16)

 

I have told them on the phone while ever there is after pending court action I will not allow them to carry out any works to put it all right (I tried to sort out with mediation but they refused at that time expecting to win in court)

 

What do I do now because we seem to be on a roundabout

 

How long to they have to put this CPR 38.7 claim in Is there anything I can do to have this put to bed and for all

 

Thanks again in advance

[martin2006]

38.7 A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if –

(a) he discontinued the claim after the defendant filed a defence; and

(b) the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.

 

MCOL will not be updated further now its been passed to your local court.

 

Personally i would be reporting back to gas safe that they have not remedied the issues by the date given.

The work however still needs to be done so you must get the quotes done, diesnt mean everlasting will be doing the work, just paying for it.

[leerob695]

The Stayed order came from my local court

 

My Dilema is that the findings on the gas safe report was my evidence to the court of my defence

IF i let them carry out the work then this will change my defence this then leaves me wide open to the current claim to which i will then have no defence if that makes sense

I was wondering why they are writing to me direct

[martin2006]

In your very first post leerob, you state that the agreement says payments do not start until the work is completed.

If the work is completed and they attempt to continue with the claim, the worst case should then be that payments commence as per the agreement, not in a lump sum. That would become your argument.

 

The claim is stayed so that will be why they are writing to you directly.

Edited October 26, 2016 by martin2006

[leerob695]

The payments didnt start until the job was finished is correct but dont forget that built into these monthly payments were servicing and callouts for 14 years

 

They are trying to take me to court for the cost of the boiler the Maintenance side of things is not included

 

It is only now i have had gas safe involved that they have been interested in putting there wrongs right

 

Its not as simple as just paying X for a boiler it was a maintenance contract as well so other costs would of been built in

 

They were offered in mediation to come put it right and then start taling money from me for the original contract BUT they refused and they wanted the full amount for the boiler and wouldnt honour the original contract if X per month including servicing and Maintenance call outs etc

[martin2006]

I hardly think you would for one moment allow them to service and maintain the boiler after the experience youve had with them.

 

The claim is stayed anyway so you are in quite a strong position to negotiate before it gets back to court,

which they will have to pay a fee to do. And no doubt have some explaining to do before his honour.

 

I would imagine that the maintenance contract and the cost of the boiler plus the installation costs are 2 separate things.

 

The boiler was installed toward the end of 2014 if memory serves me correctly so if they have not been to service it then they have breached that side of things anyway.

Have you a cooy of the agreement/s you could redact and scan please?

[AndyOrch]

The claim is stayed...allowing you and the claimant to sort it out and for them to put it right..at their cost.Once thats done to your satisfaction the claim will be discontinued.

[leerob695]

I really want this to go to court as ive previously said

 

They were offered to put it right in mediation but they refused

I then got gas safe to come out for the report and found it is not to standard so obviously im even unhappier than before

 

My point is do i let them do the work while there is impending court action?

Because if i do and then they decide to go to court after they have fixed the issues with gas safe (This is the problem as i see it now they are tying to keep Gas safe happy NOT me the customer) I then have to find nearly £5000 instead of paying the Monthy agreed AFFORDABLE instalments and on top of that i have a CCJ as well

Or am i within my right to say if you stop the court action you can fix it on the condition that the original deal stands?

 

The Payments state £45.69 followed by 144 payments of £47.27

I will have access to a scanner at weekend so will upload it then

 

Thanks for helping

[martin2006]

Ok well if you go to court what outcome would you be looking for?

And dont forget, they are the claimant and as advised, may well discontinue the claim as its stayed at present.

The payments i assume include the service and maintenance which you clearly dont want from them.

This is all negotiable at present.

Alternative maintenance plans are available which wouldnt cost too much.

[leerob695]

Back again im afraid

 

I have just received a letter from the court titled "Notice of allocation to the small claims Track (Hearing)"

 

District Judge ***** has considered the statements and directions questionarre filed and allocated it to the smalls claims track

 

 

I wish i could afford legal help with this but i cannot

First the claim is discontinued (Different claim form) then they try to take me to court again then then it is Set aside

 

There has been nothing from a shade greener just this random letter dropping on the door mat today

They havnt even been back in touch regarding the flaws that the Gas safe inspector found

 

Im presuming this letter yet again means that it all starts again ?

Please help i feel like im banging my head against a wall with them again now

 

What do i do now?

[AndyOrch]

No ..not starting again...simply progressing from the stayed status of Oct 16...

 

Andy

[leerob695]

So this is the judge giving permission for them to go to court again on a claim that they have already discontinued once before?

[AndyOrch]

No ..its already in court and stayed whilst they were suppose to mediate and given opportunity to correct the issues...has this happened ?

[leerob695]

Interesting....a letter came today from a shade greener with a fabricated timetable of events inluding letters sent by recorded delivery that dont exist (put number in royal mail and says its been returned so ive certanly never had it)

 

whats interesting is that in this timetable they say that on 29/8/2014 they passed it on to a high court enforcment officer (How can they of done this when its never been to court)

 

Also it shows that they withdrew from previous court with advice from someone

 

It looks like im gonna have a battle on my hands with them telling porkies

 

Hopefully with my letter from gas safe saying the faults of fitting and the pictures of the mess etc i will be OK

 

Question IF they do get a judgment will they still need to put the flaws right?

[BazzaS]

letters sent by recorded delivery that dont exist (put number in royal mail and says its been returned so ive certanly never had it)

 

They don't seem to appreciate the significance of that.

 

Under the Interpretation Act 1978 s.7, if they had sent those letters first class mail, and you didn't have proof you didn't get them, they would have been deemed sent and received.

http://www.legislation.gov.uk/ukpga/1978/30/section/7

Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

 

yet, the fact that the letter(s) can be tracked, and shown not to have been delivered allows the "unless the contrary is proved" to kick in.

You ask them "So, when was service effected"?. Ordinary post it would have been when a first class letter should have been delivered, as the contrary can't be proven.

Failed Recorded Delivery ... show it was returned to sender, and service was never effected.....

[leerob695]

No ..its already in court and stayed whilst they were suppose to mediate and given opportunity to correct the issues...has this happened ?

 

Sorry Andy i didnt see this reply

 

NO nothing has happened

[leerob695]

Im mid way thru putting my documnetation together including my witness statment and its reading like a long story would it be ok to either post it on here or for you ta have a once over of it

Im trying to keep it to a minimum but its still seems rather long reading

 

Ive nearly got my day in court but dont want to send something thats gonna make me look daft

 

Thanks in advance

[AndyOrch]

Sure..post it here leerob

 

Andy