Everest no consumer rights? ***Won*** judgment against Everest

[Mondaynottuesday]

Dear BF, the time has come to raise the claim, I apologize for not returning sooner as we've had other personal matters to deal with. I have sent the letter before claim giving 14 days, extended by a further 7 days due to an error myside.

Needless to say, I get a response post allocated time which dismisses any claim on my part of course.

Over the past few weeks, I have drawn up all the particulars of the claim, it's along list so how would you prefer I post for your insight and guidance?

In the meantime here's the money claim particulars coming in below 850 characters, your thoughts most welcome on suitability. Please note I'm not after the interest as it's negligible.

Quote

By a contract dated 06/05/2018, the defendants agreed to supply and install windows and doors into the claimant's property. The work began 6th August 2018 but quickly stalled and no more work was carried out after 8th August 2018. The work which was carried out was defective in terms of the quality of installation and the quality of supply parts. The claimant has tried repeatedly to persuade the defendant to u address the problems and has been ignored, received promises which have been repeatedly broken even though the defendant on three separate occasions confirmed quality is not up to standard. The defendants breach is fundamental and has terminated the contract. The claimant seeks the return of their deposit of £1262 plus incurred ancillary expenses approximately £570. The claimant claims damages not exceeding £2000 pounds.

 

[BankFodder]

I can't really remember where we are on this. I'm afraid that things been so hectic dealing with this upgrade – as well as the delay in this thread. I'm afraid that's what happens when things don't move along.

However, looking at your draft particulars of claim – it looks okay but you will have to tick the box somewhere in the money claim website indicating that you will send a fuller particulars of claim.

I suggest that you draft that out as well.

Make sure that it is with numbered paragraphs and you want a little more detail – but not too much narrative.

In particular I think you will have to explain why the breach is fundamental and also I think you will have to particularise your losses – including the ancillary expenses and also the basis upon which you are claiming damages of up to £2000.

[Mondaynottuesday]

Thanks BF,  yeah sorry for the delay it's been a continuation of a very bad year for us. To bring you up to speed, yes we have submitted the claim and have 13 remaining days to send the detailed particulars which I have already drafted.

Very long and far too many points currently but everything is down on paper ready for a tidy up. I'm working this currently and if ok will post in chunks for your comments. I believe I've covered the breach and costs claimed but again, any comments most welcome.

 new site looks great, so much better. 

[Mondaynottuesday]

Hello BF, here's the full list that I know you will shout at me for but would like guidance on what isn't required and any missing detail. If you prefer smaller chunks let me know, again your help, guidance is most welcome.Everest_Claim_Detail_Final (Edit).pdf

[BankFodder]

I converted it to Microsoft Word and made some edits.

I'm afraid that I've destroyed the appearance of it. The edits I have made are quite minor although I have changed

Numbering so that it runs from the beginning to the end of the document in one series. This is important if the court is to refer to individual paragraphs easily.

It's really too long – and it contains too much narrative. You should attempt to plead the facts and reserve the evidence later on.

The less information you can given your particulars of claim, then the fewer hooks they have to hang their defence on.

You really ought to try and plead blandly – the bare facts – and let them commit themselves in their defence. In a way you're giving them too many clues. I'm afraid that it's a game of strategy right from the beginning.

I'm sure you could probably reduce it by half. The chronology is good. It explains everything – but in a way there is too much he says – she says. You have some time, I would suggest that you work through it.

It is certainly a very useful resume for when you eventually provide any further information or skeleton argument in your bundle. But frankly it's a bit too early to go into this kind of detail. However, if you want to send it that way then do. It won't do you any harm but it would be better if you reduced it. Make it a little more scant

Everest_Claim_Detail_Final (Edit).docx

[Mondaynottuesday]

Thanks BF I agree. I wasn't sure if the detail upfront would help them decide not to pursue but I'm sure it would not make any difference. Their argument will be the fact they have not been given the opportunity to rectify the situation, so I'm kind of thinking detail shouldn't matter.

 

But yes, wanted you to view the full facts and cast opinion.

 

If I knew you would have been ok with Word, I would have sent the source file so apologies, appreciate you taking the time to convert and amend.

 

Question though, you deleted the type of breach I'm seeking, does this not need to be called out at all or is it obvious to all involved?

 

The rest looks good, although I removed the interest option for ease so I'll leave that off.

[BankFodder]

PDF files would be preferable please

[Mondaynottuesday]

No problem, I'll be sure to stick to PDF in the future.

 

Question from previous...

 

You deleted the type of breach I'm seeking, does this not need to be called out at all or is it obvious to all involved?

[Mondaynottuesday]

Hello BF, how's this shortened version as per your guidance.

Could you also answer the above question please, just for my own sanity.

Everest_Claim_Detail (Short BF).pdf

[BankFodder]

Doesn't your paragraph number 26 do this?

Could you please remind me of what it was I suggested should be taken out in respect of describing the breach.

[Mondaynottuesday]

I was calling out the specific CRA Chapter / Sections their breach applied to. So no nothing calls it out specifically, only alludes these areas. You deleted it, I assume as it was not required hence my concern someone may turn round and say "what breach am I calling out here"

[BankFodder]

My preference is to plead the facts but not to plead too specifically. If you identified a particular section or subsection of a particular piece of legislation as providing authority for your claim – and then you turned out to be wrong then theoretically it could undermine your case.

I suppose it's just a question of personal style – but I prefer to plead facts and not to get too hung up on the law. Don't forget that you are litigant in person so there's no point in strutting too much.

[Mondaynottuesday]

Understand and thanks, do you think the shortened version is good to go or still some work?

[BankFodder]

I think it's fine. Even when it was longer there was nothing critically wrong with it.

I think the important thing is to get the papers in. Once you have issued it make sure you send a copy to the finance company as a courtesy – and I would suggest that you keep them copied into everything for the same reason.

[Mondaynottuesday]

Excellent, and will do even though they are aware and we have no obligations with them unless Everest decline any attempt to pay outstanding balance, which they cannot. All they would be able to do is remove the discount applied due to taking that option.

 

Once posted, I assume it's an initial waiting game to see their response and if they wish to defend, counter then a court date would be set automatically. This is my understanding.

 

Really appreciate your help thus far, however this turns out.

[BankFodder]

You better read up about this. There is lots of information about bringing a small claim in the County Court on this forum – and also elsewhere.

Briefly though, if they defend then you will receive a questionnaire asking you about your view about aspects of the management of the case. At some point you will be asked to pay a hearing fee.

By the way I forgot to say – have you actually identified a maximum figure for the damages for inconvenience? This is essential. You can't just leave it open ended. You must let the other side know how much you are after. You need to come up with a figure so you would say – damages for inconvenience not exceeding £XXX.

Make sure that you can justify it. You might win in court but then there will be a discussion in the court about whether what you are claiming is reasonable. You should remain moderate in your claim and make sure that everything you claim for can either be demonstrated by bills or that you have itemised inconvenience sufficiently well and in sufficient detail that the judge has persuaded that this is what you deserve.

[Mondaynottuesday]

Thanks BF, I am reading up as I go along just coming back for clarity questions to make sure I understood. Most is obvious but you do uncover conflicting or differing information which just needs confirming.

 

As for the inconvenience figure, no I'm not asking for anything in addition to the actual costs we have or will incur due to their incompetence. The figure you see in the claim is all I want, I'd be happy with just the deposit back to be honest just so we can move on with someone else.

 

I'll continue reading, come back here for more advice for sure.

[BankFodder]

I'm sorry to say that this should all have been done and dusted by now. One doesn't start sending letters before claim around and allowing the deadline to expire without knowing exactly what one is going to do and have it all prepared.

I'm not going to go back through the thread again but the whole business of recovering damages for inconvenience was part of what you are interested in – I thought. Forgive me if I misunderstood.

The way that you presented your claim suggest very strongly that you are also seeking damages for inconvenience. All of this should have been understood and prepared for some time ago .

[Mondaynottuesday]

Morning BF

No, we were told we couldn't claim for inconvenience unless you can prove taking time off from work, but nothing for stress, additional personal time trying to address the issues and so on.

 

This has always been about terminating the contract and getting our deposit back, covering additional redecorating and heating cost caused by their incompetence.

 

l'm sorry you feel otherwise, it comes across as if we are wasting your time which I can assure you we are not. We have come this far because of you, personal circumstances and work commitments could not allow for it to be done any quicker, believe me I wish it could've.

 

I hope your view has not soured the intention to help, I'll be submitting the particulars of claim today. If you feel you've exhausted your support, I understand we are all very busy people. You have guided us this far, I have read many pages to understand the process and feel prepared for next steps.

 

I will post back updates, please do not feel obliged to respond.

[BankFodder]

Who is it who told you that you can only claim for inconvenience if you can prove taking time off from work? I hope you didn't hear that here

[Mondaynottuesday]

No, not from here, from the solicitor we engaged initially, they basically said we could only recover costs incurred.

 

Quote "You will not be able to claim for undue tress and personal time checking each window above. If you had to take time off work due tot he issues, we may be able to claim for this but we would need specific evidence."

 

Does this cover inconvenience, I'm sure it does in some part at least and hence we always sought to recover costs.

[BankFodder]

Well I think the solicitor is wrong and being overcautious.

It is certainly the case that the courts themselves are very cautious about making awards for claims of stress and inconvenience. These heads of damage should not be used as a money grab.

However, if you were involved in a contract for a substantial amount of money for work which should have been completed in August and has still not yet be completed then it seems to me that that in itself is very persuasive that there is some inconvenience.

If you have had to make appointments to meet people for you have had to deal with an unsightly home or you had to put up with cold and draughts et cetera then I don't see any reason why you shouldn't come up with a figure for this and put in your claim. The judge can always say no. Your problem is, of course that you may increase your court fee. However, if you follow this post here:-

then you will see that there is an approach to this whereby you can maximise your claim and minimise your risk of court fees loss in the event that you don't succeed.

It's absolutely right that if you are going to claim for inconvenience, then you are going to have to spell it out very carefully and justify the amount of money you are looking for.

As I have said – it's not a money grab and you need to be quite skilful about the way you express the inconvenience you have suffered and stress.

However, your contract, properly executed, entitles you not to have to suffer inconvenience or stress and so therefore there should be a figure for that.

On a final note, if you include a figure for inconvenience then it gives you a better negotiating hand. If Everest want to come back to you and say well they will pay some of your claim as a gesture of goodwill – then you have something in hand to give back to them – the money that you are claiming for stress and inconvenience.

If you don't ask you don't get.

[Mondaynottuesday]

Shame I wasn't fully aware of that and maybe the case, however the court fees have already been paid and claim amount entered within the claim form submitted. I read the link but it seems to imply incurred costs due to the inconvenience of not having a car. I have covered this with the heating costs along with the additional decorating costs. 

 

These are the only physical costs incurred (decorating still to be confirmed), so to the point of being skilled then yes if I had you representing me then absolutely I would request damages sort for the situation they created but alas we'll go with what we have as we shouldn't be out of pocket at least.

 

As you say, we have never tried to use this as a money grab, far from it, we just wanted to move on with minimal fuss. I'll note it for the next time although I hope there isn't one, not a pleasant experience for anyone to have to go through.

[Mondaynottuesday]

Ok, they've decided to defend all of the claim.

 

Before I send the full particulars, can you just confirm the differences between the cert of service in the top question vs. N215 below? Where is the top one if different and where do I send it as I can't see anything within the online portal.

 

Q. If I check that box, when do I send detailed POC?

A. You must send the full POC within 14 days of the claim having been served. You send it to the defendant directly. You must then file a certificate of service with the court within a further 14 days.

 

Q. Doesn’t the court get a copy?

Send a copy of the full POC to the court once a defence has been filed and the case has been transferred to your local court. Then send it to your local court.You must also file a N215 Certificate of Service within 14 days of the claim being issued.

[BankFodder]

I'm afraid that you need to check this out. They could be in error. Something the back of my mind tells me that you simply need to complete the certificate of service and have it available. However, maybe you do need to file it with the court – which makes more sense.

If you have a search through the note on the County Court's website, you should find the answer. Let us know