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disillusion'd

Being charged for unusable crooked sliding gate track/ broken contract

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Hello fellow forum members:

 

I’ve just received a Country Court Claim form : I’m a complete novice at this, I’ve never been to Court before - or posted on here before. I hope someone can give me some advice.

 

The claim is from a gate installation company who have done part of a (verbal) contract made 18 April 2016 to make and install an automated sliding gate, around £5,600. I haven’t received any paperwork from the company (Contract, T&Cs, design, safety and compliance etc), nor have I signed anything.

 

They laid the track for the gate in concrete on 01 June 2016. The ground works were done by a freelance carpenter. My builder who was present raised concerns with him about how the work was being carried out, and was told ‘this is how we do it’. There was no quality control during the installation and no supervisor visited the site during or after the installation.

 

The owner told me they were very busy, I’d have to wait for the gate. My husband agreed “as long as it’s in before winter”.

 

15 July 2016 I received a new quote by email for the gate and installation for a 28.5% price increase. I did not agree to a new price. If I had known they intended to change the price part way through the contract I would not have agreed to proceed.

 

03 Aug I got a statement for just under £918.00, no invoice. I queried it (nicely), saying I had not received an invoice, what was the charge for. I was told it was for some work which I had commissioned my builder to do ie they did not do this work. I wrote to them. They then said the charge was “for site visits and a track ordered but did not go ahead”. I had asked only for a sample of the track. This is not an order. They said they had sent an invoice 27 July (not received by me).

 

I wrote a nice letter back disagreeing, but suggesting we just continue with the work and contract as originally agreed. They wrote back to say they would take this amount off the final price on completion. However if I paid this I think it would mean that I had accepted their new higher price.

 

16 Sept 2016 email - the owner changed their description of the work they were charging for again: now it was for the installation of the track and wiring. Still no invoice. I asked them to forward the invoice. They did so 27 Sept . It’s now 2 months since the date they claimed it had been sent. The construction of the header (date, time of sending, subject etc.) of the forwarded email does not match any other forwarded emails and additionally shows the last (Sept) description, not the one given us in July when it was supposedly sent. So it seems the invoice was never sent, and that this 'forwarded' email is a fraudulent document.

 

I was still waiting for a response from the owner to the letters I had sent.

 

25 Oct I received another threat of county court action. I wrote back 06 Nov, acknowledging the threat and telling them we had lost confidence in the company and would not continue with them.

 

15 Nov I received an invoice for 10% ‘late charge’ i.e 10% of their invoice +VAT. I wrote back 16 Nov confirming that the charge was in dispute and I would come back to them in a few days.

 

18 Nov received County Court claim dated 16 Nov.

 

They have ignored all the questions and points raised with them, and have just continued to stick with the new price quoted after starting the contract, and this later demand for payment. They haven’t started making our gate, it’s well into winter.

 

We called in another gate company to quote, they have told us the track laid is not straight and not flat and will have to be removed and replaced.

 

I sent photos to the Gate Safe, an independent charity/training/industry oversight body. They agreed the track had to be removed. The job is difficult and complicated and may require removal of newly constructed landscaping and may affect the foundations of a wall. It will be highly disruptive. Gate Safe has safety concerns about the claimant’s work, as do we.

 

I wrote to the claimant 17 Nov 2016. The claimant has offered to have “an independent company’ assess the track” (23 Nov) and say they ‘will put right anything that is incorrect’ if necessary. We have no confidence in the claimant’s ability to do the work, or their contact’s independence. We would like to get the track removed and go to someone reputable. If the claimant relays the track we won’t get a warranty from any gate manufacturer/installer as they won’t have laid it.

 

They really have put us in a difficult position in addition to holding up our landscaping works still further.

 

What am I reqd to do? Have I got grounds for a defence and maybe a counterclaim? Any advice or help would be gratefully received.

I’ve looked at the Consumer rights Act 2015, is this the (only) legislation to quote?

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The first thing you should do is acknowledge the claim and say that you intend to defend everything. This will extend the return date from 14 days to 28 days from the date of service.

 

Please let us know what date you received the claim – and the date of it.

 

Please also post up the claim in PDF format. We don't need to see all the admission forms et cetera. We only need to see the claim part which is probably the first page.

 

Do I understand that all the work including the initial laying of the track and also the work by the freelance carpenter were all commissioned by the claimant? Can you confirm that you haven't had any of the work carried out by yourself.


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Hi BankFodder,

 

The Claim form was submitted online, and was dated 16 Nov. I received it by post on 18th Nov 2106. It says that date of service is 5 days after date on the form (ie, 21 Nov)and that I have a further 14 days to send in an acknowledgement form.

 

Yes, you're right. the carpenter was sent by the claimant to do the groundworks. The installation was all done by the carpenter. The claimant sent one of his metalworkers down later ion the day to man the concrete mixer. My builder was on site but apart from greeting the carpenter and watching what was happening, he did nothing on the installation.

 

There was a concrete strip in place for a gate installation, laid by us a few months previously at a cost of circa £2000. The claimant said he wasn't prepared to use it and it had to be removed. The cost to us of this was a further £800 or so. the removal was done by our builder. he also made ready the area for the installation under instruction from the claimant. Photos were sent to the claimant before installation to ensure that he was satisfied that the area was ready for the installation We were later told by another gate installer that it was perfectly usable and need not have been removed.

 

We are wondering if we should counterclaim. There will be quite high costs to remove the track, with potential damage to the landscaping and the foundations of a wall directly adjacent. I have a quote of £2200 from a gate installer to remove the track and replace it, but he has said there could be collateral damage. So we're not sure how much this will cost. I think we will end up paying for it all. When I write to them, shall i tell them we are counterclaiming - even if we decide later not to, for any reason?

 

I'm afraid the posting of the PDF has defeated me. There are links for inserting URLs for webpages and videos, nowhere for posting a PDF. All there is on the front is the figure and the description that they are claiming for the installation and wiring. incidentally, our electrician had to remove and reinstall the wiring installed by their carpenter as it wasn't correct. I think also a carpenter isn't qualified to install electrics.

-d-

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Don't worry, you will be counterclaiming.

 

I can't remember how to upload a PDF but it is relatively straightforward. Keep on hunting around.

 

You need to click the button which says go advanced and then there should be something to do with attachments. You are trying to upload an attachment.

 

Send the acknowledgement now. We work out the defence and counterclaim later.

 

Make sure you take photographs of everything. Make sure you assemble all the documents you have – and if you think that there is anyone else involved who can provide you with a statement, then get the statement now.

 

In particular,

I suggest that you get a couple of independent opinions on the quality of the work done so far.

 

If you have to pay for this then you should be able to recover in your counterclaim

– assuming you win.

 

From what you say, your chance of success are better than 85%.

 

I have to say, I wonder why they are so confident that they have issued a claim against you. When we see the claim in PDF format, we can start to understand.

 

Also, you should get quotes for repairing/making good the work that they have done so far.

 

If there is any benefit at all to you in the work they have done so far then you will have to take that into account as well and make an appropriate deduction.

 

It all needs to be itemised – properly set out – and moderate.

 

If it is the case that they undid work that was perfectly good and which would have served you, then that means that that work is money thrown away and you should think about including that in the counterclaim as well. However, once again, you will need to get independent written evidence of that.

 

Well done on posting up the PDFs, but you have managed to leave all your personal details in. This is unwise.

 

I've suppressed the PDFs that you have put up and I would recommend that you redacted so that your identifiers are concealed – and then post them up again.


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Thank you BankFodder, and I feel hugely encouraged.

One never knows how these things will go,

and of course we have only our side of the story.

 

I don't really know what theirs is.

 

In spite of our suggesting several time in emails that we find a way forward that we are both happy with, there have been no suggestions from them and no effort to sort this out. We have finally given up trying.

 

I'm not sure why they have taken this path, as you say.

I've been thinking about that.

They were very quick to start threatening very early on.

Not very good customer relations.

 

I have all the emails,

the original quote,

a quote from a gate company,

my builder is preparing a witness statement.

 

I also have the 'forwarded email invoice,

the statements and the threats of court action and the reply to my email with photographs from gate safe saying the track has to be rectified prior to any automation equipment being fitted.

 

Gate Safe have offered to inspect and write a report,

but the cost is quite high,

they're a long way away

- as they've said it's quicker for them to get to France than to get to ours.

I'm going to try another gate installer for a second opinion.

 

The issue is also around safety.

 

The claimant makes no mention of safety on their website and no information on safety was supplied by them

 

we have understood by talking to people who know what they're doing that the claimant was going to install a gate without proper supports

ie a tall metal post which prevents the gate from falling inwards and provides support at the middle and the top. The claimant was not going to supply this.

 

An accidental bump by a car, or damage to the fairly insubstantial guides could lead to the gate falling over, either across the public footpath outside or into our back garden.

 

If we keep the track and use it, the stresses on the motor will apparently lead to early failure.

If someone gets hurt we will surely be liable as we will have operated the gate in the knowledge that it didn't meet with the requirements of the Machinery Act and didn't have a Declaration of Conformity.

 

We have not enjoyed any benefit from the track. It hasn't been in use because there has been no gate installed.

claim form.pdf

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Thank you, was there a written quotation for the work?

 

It will be helpful if you would put up the written quotation in PDF format, then also list up the items which have been quoted in a left-hand column and in a right-hand column put your comments about each item.

 

You will find that this is a useful exercise when the matter goes to court – as it surely seems to be doing.

 

Have you sent off the acknowledgement?


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Hi BankFodder,

 

I've just discovered I have to log off and log on again to see your posts.

 

I was registering with MCOL to send the acknowledgment, but wanted to check something first: the claim is issued under a slightly incorrect surname. Is this significant, or do I just go ahead and send the acknowledgment even if the name on the claim isn't quite right?

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wont be an issue

 

 

ack [aos] the claim on mcol website

defend all

leave jurisdiction unticked

click thru to the end

confirm and exit mcol

 

 

dx


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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ive sorted the PDF for you

you cant sit on the thread and await replies

either monitor your emails

or hit F5 key and the page will refresh with any replies.

 

 

dx


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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Yes, as advised above, the error in the name is merely a technicality. You can get it corrected at a later stage.

 

I must say I didn't know about using the F5 key to refresh the page, but I've tried it and it works. You learn something everyday!

 

Even though they appear not to be responding to your messages, I should still keep on writing to them because the more you try to engage, and the less they respond, the better it looks for you in the event that you might lose the case and any issue of costs come up. Also, a judge is more likely to be impressed by somebody who is going to strenuous lengths to resolve the matter and to avoid the litigation.

 

I'm interested by the fact that you say that you have no contract but on the other hand, you say that you have a series of correspondence. It isn't necessary to have a contractual document. This kind of contract can be done simply by verbal agreement – although in my view that would be extremely unwise. If you wanted a look at our Consumer Survival Handbook available on Amazon, you will find that we refer to the importance of rendering these kinds of agreements into some kind of writing for the avoidance of doubt. Also, there is quite a lot of information about starting a County Court claim – or about defending one. All of this information is available on this website, of course but in the Handbook, it is all in one place.

As you apparently have a series of exchanges, presumably all referring to aspects of the proposed installation, then these can be taken in sum to represent many of the elements of the contract. Therefore, the correspondence you have is essential and I think that it will be useful to distil their contents into a single document which you can say amounts to the main part of your contractual agreement.

 

Although we are in a position to put in some kind of defence immediately, as you have acknowledged the claim, we can relax and approach it a bit more methodically.

 

I think it would be helpful if you would bring out all of your emails and other correspondence and list them out for us.

 

Once again, you will have to do this when the matter goes to court. You will have to provide a bundle of documents properly sorted and properly listed.

 

I suggest that you open up a spreadsheet and then list the documents by date and then identify what they are – email from X to Y – and then a brief summary of what it says – hundred and 40 characters. You can see an example in the Handbook but if you don't want to buy that, then you will find that it is quite easy to do anyway.

 

If you could provide the list here so we can get an idea of what your contract is all about. You can then also make comments on each aspect of the contract to say whether it was fulfilled, or not fulfilled or other things that you have to say.

 

I'm also interested in the fact that there was a very substantial price increase proposed by the other side and you need to explain the circumstances of this. Was the original price in writing? Was the price increase proposed in writing? Had the work started? Also, have you paid any down payments or instalments in advance or as the work progressed? What was the agreement for payment?


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its typically f5 key or else whatever key is the refresh key in your browser


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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Falling behind a little.

 

I've sent off the acknowledgement online and got the receipt

 

I've attached the quotes and have done a breakdown of the quote as suggested. Now I see the benefit of doing that exercise.

 

The verbal agreement was 18 April 16

The date for track installation was given to me 13 May 16

Tools and track delivered 31 May 16

Installation of track 01 June 16

New quote 15 July 2016

Statement (no invoice) sent 03 August. Queried by us

Second statement and threat

 

Unfortunately the correspondence doesn't flag up the details of the job, except some from our side as we had not got to the stage of even having drawings of the gate we were supposed to get. I have pointed that out in the correspondence.

 

All the correspondence is after the new quote. The owner has chosen to manipulate facts. We've written back to correct.

 

The owner has said in the correspondence, 3.5 months after installing the track, that he had agreed a year ago to keep to the rpice, but there had been "many many delays" and he could no longer afford to keep to that price. This is untrue. the first time I accepted his quoted price was in April 2016, after which he came to lay the track. He has done nothing further on the order.

 

His quote says that there must be an agreement in writing, but no documentation for the agreement has been supplied by Maxfab.

 

How shall I prepare the correspondence for the court? I have printouts, shall I use highlighter/ number/other?

 

If distilling the contents into one document, it would potentially be a series of claims and denials. I have drawn up a draft timeline. I'll work on it and tighten it up. I'll do as you say with a spreadsheet (i'st quite a job)

Maxfab quote Oct 2014 redacted0001.pdf

Maxfab PDF quote breakdown and comment.pdf

Maxfab new quote jul 2016 redacted0001.pdf

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Sorry, but you are using the term "owner". Who is that?


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We haven't made any payments at this stage.

 

The quote says 50% up front is required. This was not asked for, and the owner has said in his correspondence that this was waived for us. We didn't ask them to.

 

There was no agreement about payment or terms.We haven't signed anything, including payment terms as nothing has been supplied.

 

We were happy to put down a deposit but it wasn't asked for. We always pay in full on completion of a job, so we were intending to do that.

 

We didn't pay the statement they sent as there was no invoice. On querying, we were told by the claimant that the charge was for work which we had had done by our builder. Then they changed their minds and it was for site visits and a track ( not supplied, only sample supplied). Later they changed their minds again and it was now for the track installation and wiring. The price for all these different descriptions remained the same: £918 incl VAT.

 

A late payment invoice was sent while we were waiting for a reply from the owner for 10% of the £918. This is included in their claim. They are asking for a % interest on £918 + their late payment fee. I am advised by a credit controller this is not to be paid.

 

No terms and conditions have been supplied.

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Hang on, I'm now reading a document which you have supplied and which is headed "quotation" and which is dated October 2014. I haven't noticed anything in your account so far which takes us that far back.

 

I'm starting to feel that we don't have the whole story here.

 

I think that you need to set out a bullet pointed chronology, please starting at the beginning – the very beginning


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Apologies. I need to be clearer.

 

The owner is Simon Yaxley. He is the person I spoke to on 18 April 16 who said he would keep to the original quote. I agreed with him on that date that we would go ahead on that basis ie that he kept to the original quote.

 

Richard Dallimore who wrote out the quote left the company early in 2015 I understand.

 

Simon Yaxley took over our job. Our site visits/instructions ae have been with Mr Yaxley. His Office Manager Allison Geal has acted as go-between, interpreting his instructions to us in emails. Mr Yaxley has written back to us once although our correspondence has been directed to him.

 

It is Allison Geal's name on the County Court Claim form.

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Is there any evidence of this? It's a long time to keep the same quote open from 2014.


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It is quite a long story, Bank Fodder. I tried to condense so as not to bore everyone to death. I have done a timeline, but with long notes. I should tighten this up and send it to you, I think.

 

In essence, Maxfab visited in Oct 2014 and quoted. Simon Yaxley and Richard Dallimore returned to do a survey. They said the concrete strip was had had laid was not suitable for them and it had to be removed. We thanked them and did not proceed.

 

In June I engaged the builder who had laid the strip to do major building works. We had understood that concrete strip was not correct so we would have to remove it regardless of who installed the sliding gate. The builder agreed to remove it. He asked for a sample of a track. I called Mr Yaxley to ask if they had a track sample they could let us have, and whether it was readily available. Mr Yaxley said it had to be ordered and that delivery was quite quick. He told me that he would keep to the original price if we decided to go ahead. He brought a sample piece of track to the house. I did not accept his offer or place an order to commence with the gate installation. We were not ready on site as we had not removed the concrete strip, and we were not ready to make that commitment.

 

The builder completed his works and did not remove the concrete strip as we had not engaged a gate installer.

 

We carried out landscaping. When landscaping was almost complete it was clear that we would have to remove the concrete strip and install a new track if that was required, before we could complete the landscaping. The construction work required was very close to the location of the track. I called the Maxfab to discuss this. Mr Yaxley told me once again that he would keep to the original price. I asked if he was sure. He confirmed he was sure. We then discussed various aspects of the project, visits to the property and other details. My phone accounts shows multiple calls to Maxfab on 18th as we discussed the project, and a call to my husband to confirm he was happy to go ahead on the basis of the discussions I had had with Mr Yaxley. I called Mr Yaxley and said that we would go ahead at the original price as offered by Mr Yaxley, and according to our discussions by telephone that day.

 

Sorry to be so long-winded, but my bullet-point timeline will take awhile to get down onto paper. I hope this info is what you were asking

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you shouldn't be post up documents with names and numbers on it that can identify you

attachments removed

please follow the upload guide.


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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Unfortunately there is no evidence. We hadn't ordered a gate from Maxfab so there was no need for any evidence at that stage. The only order we placed with them was in April 2016. This is when a verbal agreement was made.

 

The only written quote we had at the date of ordering was the Oct 2014 quote.

 

I agree it is a long time, but that was Mr Yaxley's offer, which I accepted.

 

I relied on this when placing the order and would not have agreed to go forward with the order unless I had a price agreed. Likewise I would not have gone forward with the order had I known that Mr Yaxley would change the price after he had commenced with the order

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I hope you won't mind me saying that your attempts to keep a long story short of actually making it much longer and more difficult and it's becoming a bit like pulling teeth.

 

I think would appreciate a very brief bullet pointed chronology starting in

2014 – got a quote for certain work

decided not to go ahead

2015, June blah blah blah

2015 September blah blah blah

2016 January blah blah blah

 

Et cetera. I think you have to imagine that if you were paying thousands of pounds to a solicitor, you'd be anxious to get the whole story over in one go in order to save money. I think you should treat us the same way please


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Apologies dx100uk. I thought I'd done that I'll check again and rescan.

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Oh dear.

I am falling into the trap of answering to try not keeping you waiting. I'll get the timeline done and send it to you.

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That would be helpful. Thank you.

 

Their claim form is very sparse and I think it might be worth sending them a request for further information. We have a template on the forum – CPR 31.14 http://www.consumeractiongroup.co.uk/forum/showthread.php?387484-LEGAL-CPR-31.14-Request-Request-for-information-when-a-Claim-has-been-issued.

 

I think that you should use this as a basis and send it off to them as quickly as you can – recorded delivery.

 

A lot of the template you won't use because it's not relevant to you. However, where the template says

 

and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

I suggest you put "a legible copy of the contractual document or else any documents you might have including emails, notes of conversations and other correspondence which you believe contains the elements of any contractual agreement between us".

 

Send that off straight away – doublechecking to make sure that everything you include it is relevant and none of the other irrelevant stuff in the template is included – so that it won't look too silly!

 

Maybe that will produce a bit more information and will see what happens.

 

Please confirm that you have sent this off and keep us appraised of any responses you receive.


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Hi BankFodder,

 

Thank you for the above. I've just returned from posting it: signed for and recorded delivery, guaranteed for tomorrow.

 

I'm going through my timeline to ensure all facts correct, and that I'm not putting in emotional responses.

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