Recived a counterclaim

[lee6370]

Hi,

 

I'll try and keep this short and hope someone can offer advise.

 

My son was a sub-contractor (plumber) on a large block of flats, the main contractor decided to remove all plumbers and appoint one company rather than several subbies.

 

My son submitted his last invoice and should have been paid after 14 days, when he wasn't paid he tried phoning, then emailing and then texting the main contractor, all these were ignored, so eventually started a small claims against them for £1289. (he followed the correct process in issues letters, etc)

 

The contractor has now submitted a counter claim for £2650, stating that the work was substandard and they would be seeking the cover the money.

 

I phoned their head office (my son at this point was out the country and asked me to deal with it) I spoke to there commercial manger, who had signed the counter claim.

 

Now my point is that the main contractors PM on site, had dismissed all plumbers but had asked my son to stay on because he knew his work was of a high standard, (all work was QA by the site PM) and also asked my son to look after the site apprentice, but 2 weeks later when the new plumbing subcontractors arrived the main office overruled the site PM and my son had to leave site. So I argued that the site PM, who was in the best position to know who was working to what standard clearly didn't feel that my son's work was substandard and if he did why ask him to look after the apprentice?

 

I was also concerned that the counterclaim was the first he had heard that his work was substandard, and he had made numerous attempts to contact them but they had not taken any of these opportunities to reply and inform him of the issues. Its standard practise to get trades to return and do snagging

 

I also asked if the were looking to recover money from all the plumbers, which he said they were, so I said ok, which ones, because me son is in contract with all of them....he then said well they will but haven't yet, he then offered to drop the counterclaim if my son dropped his claim.

 

So it's clear that the counterclaim is only being used to bully my son into dropping his claim.

 

The commercial manager was not aware my son had remained on site and been asked to look after the apprentice, so asked if he could check and then phone me back.

 

When he phoned back he said the site PM denied that what I had said was true, so I offered to give him the apprentices number and he could phone and ask himself who he worked under, as I knew it was my son at the direction of the site PM, he refused to take the number but said he would offer to drop the counterclaim and give my son £289 to drop his claim.

 

I wanted the offer in an email which he did, after I emailed back to turn down the offer he increased it to £500.....is this now an admission of guilt? I haven't put the defence in for the counterclaim yet and I'm tempted to point out that it seems its an abuse of the system and being used to bully my son...but not sure if this would be wise.

 

I've also asked for the report that detailed the work was substandard or failing that a breakdown of how they arrived at the £2650, but they are unwilling or unable to provide this.

[AndyOrch]

Any counter claim would have to be substantiated and quantified...hold your nerve.

 

Andy

[lee6370]

Thanks, I did think that they are going to have to prove that the work was substandard and whilst I know I'm biased I have questioned my son and he is adamant that, bar a small bit of snagging the work was of a high standard.

 

Just not sure how I reply to the counterclaim, its clearly just be put in to get my son to drop his and its difficult to know what to write on the form

[AndyOrch]

Have they submitted a defence and counterclaim?

[lee6370]

Their defence is that the work was substandard, its the same as their counterclaim.

[AndyOrch]

The claimant is ordinarily not required to file a reply to defence, and the claimant is not taken to have admitted the case of the defendant by not filing a reply, or not dealing with an particular allegation made in the reply. A reply will be required where it wishes to raise any particular matter which must be pleaded, such as misrepresentation, fraud or illegality.

 

In all but the every simplest cases, it is beneficial for both of the parties that the claimant does so however, as the reply serves to (1) narrow the issues in dispute between the parties, and (2) bring to bear the issues which must be dealt with at the trial.

 

If the claimant wishes to file a reply, it must do so when it files its directions questionnaire, and serve it simultaneously.

 

You have 14 days to reply to the Part 20 counter claim...you can also include this with your DQ.

 

In form the court you wish to proceed...

[lee6370]

thought I'd post a quick update.

 

Phoned the company owing the money, and cut a long story short it was basically we have a report detailing the substandard work along with photos, I did raise a few issues he wasn't aware of and asked if he could phone me back.

 

On phoning back, he says that nothing has changed but in order to reach a settlement he was prepared to drop the counterclaim and pay £289 (£1,000 less then was owed). I asked for the offer in an email, which he then sent.

 

I made a counter offer, but only if he forwarded on a copy of the report and the photos, so my son could see the substandard he was being accused of.

 

They then increased the offer to £500, which I accepted providing they supplied the report they claimed to have and claimed they had used to calculated the counterclaim amount. He has simply said the offer is without condition, take it or leave it.

 

Is the above an admission of guilt? it seems strange to claim someone owes you £2650, but your then prepared to pay them £500 to go away!!

[lee6370]

OK, just looking through the emails and the offer to drop counter claim and pay £289 and the 2nd email to raise offer to £500, did not contain the wording "without prejudice" however after accepting the offer subject to the report they claim to have, the 3rd email stated "as per our without prejudice offer in our last email we will not accept any condiditons".

 

The first two emails defiantly do not contain the "without prejudice" wording, can this be applied retrospectively?

 

Doing a bit of research, it seems that the offers wont necessarily be taken as an admission of guilt, but it does make it hard for them to continue their counterclaim for £2650 since they have already admitted they would be prepared to drop it and pay £500 and it would be hard to justify now wanting more.

[AndyOrch]

I personally would ignore it and proceed...he owes £1289....plus interest...not £500...forget the counter claim...its immaterial and fantasy...concentrate on your claim.

 

Andy

[lee6370]

cheers