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HI, and thanks for letting me join.

 

Just a quick question if I may. Not sure if this is in the correct forum.

 

When doing a counterclaim as a defendant in a small claim, can I claim interest in the same way that the claimant does. I cannot when searching find anything that clarifies this situation.

 

Thanks for helping.

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Yes you can.

However, before you start putting in a counterclaim, why don't you settle down and tell us the whole story and also if you have received the claim form, then maybe you could post up a copy of that in PDF format. Redact it for identifiers, of course

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be careful about counterclaiming, it exposes you to additional costs for p'haps little gain.

 

tell us the full story please

 

dx

 

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

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Posted (edited)

Hi and thank you for your very quick response.

 

It is for my mum who is very unwell and has just received a County Court claim from a builder she had dealings with about 18 months ago.

 

In respect of uploading the claim form. Impossible at the moment as I am at home on furlough and I don't have a scanner/printer at home.

 

I can tell you the basis of the claim. Builder started building a new conservatory. He left before it was finished demanding full payment and stated he was finished and to get someone else to finish the jobs he had not. There was a lot unfinished and in short the job was botched.

 

Mum is very elderly and lives alone and this guy became very intimidating to the point the police were called who escorted him off the premises along with all his tools and told him not to return.

 

Mum then got in another company who then had to rectify and finish the job. They had to call in a specialist conservatory roof designer/manufactuer to design a new roof, and when they took down the existing roof found that he had rested a heavy glass roof on 2 x2 batterns which were attached to rotten roof soffits? and would have collapsed at any given moment. He had also not  set the side of the roof into the existing building but left with no support and filled in with bathroom sealant. The list is massive.

 

Anyway, he is claiming just under £6000 plus interest. It cost her roughly..still adding up the invoices, £5900 to finish and put it right.

 

Mum started writing to him letter after letter with no response, until last February she started getting threatening solicitors letters. Despite trying to reason with the solicitor over what it had cost her to finish and put right the job, and hearing nothing more from them, 11 months on he is now taking her to court for the £6000 and around £500 in interest.

 

She does not have the money to pay twice for the job. She got a bank loan to do the work in the first place. She has no savings so even if he won, she has nothing to pay him with.

 

The new company who put the work right will supply statements outlining the poor/shoddy/ dangerous workmanship..which incidentally caused her to fall..twice causing severe injuries to an arm and a leg..arm put in plaster. Mum disabled considerably.Along with other conditions she has MS - builder new, but built the door access so high she fell over it, when he had been instructed to do disabled level access. Anyway, different situation.

 

Sorry for the ramble, but she has no alternative but to issue a counterclaim which brings me back to the original question regarding can she apply for interest. You have confirmed she can.

 

Thanks

 

Edited by Lilliboo
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Posted (edited)

Another point, not sure if it is relevant, but this guy came and invoiced her as a company and the claim form is in his personal name. Does this make a difference?

Edited by Lilliboo
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What date was the claim issued and have you sent off an acknowledgement with intention to defend?

Please can you tell us the name of the builder you are dealing with. The personal name that he traded under and also the company name that he is now invoicing you under.

What was the original value of the contract?

Has she paid him anything at all? Normally you would expect some kind of deposit or downpayment to be paid.

I understand that he is claim for £6000 but in fact your mother has spent £5900 putting the matter right.

I'm not too sure why you would need a counterclaim here because if you have a successful defence against his claim on the basis of his breach of contract and expense to which you put putting the matter right, that should suffice.

However, we need to know the figures.

Also, I hear what you say that you don't have a scanner et cetera. Normally we don't like to have photographs of documents – but in this case if that is all you can produce, then please would you post up a photograph of the actual claim – good quality, in focus et cetera and then we can convert it to PDF to start off with.

Also, you need to make sure that your mother has got in place precise and detailed statements of everything that has happened – including the police visit. They should all be done separately. This means there should be a statement concerning how the builders services were procured and how the contract was arrived at. Is there a copy of the contract? Is a copy of quotation?

Then how the contractual work proceeded – with a rough view of the dates and times and whether was being completed on time or whether it was late.

Then the events which led to the breach of contract – the builder walking off.

Then the engagement with the new builder to carry out repairs – and what was discovered.

You will also need to get statement from the new builder outlining exactly what they were asked to do and what they discovered and how they have remedied the situation.

Are you able to put this lot together?

Most importantly though, what is the date of the claim and has there been an acknowledgement?

Was the claim issued on the court service money claim website? If it was then there shouldn't be any problem getting hold of a copy of the claim simply by downloading it from the website.

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A may have to go through this bit by bit incase I leave something out.

 

The claim form was received this morning. Not issued online. Dated as served on the 9th January 2021.

 

I will be sending back the acknowledgment of service today to give me 28 days to respond.

 

There was no contract provided. Just a piece of paper with the amount of £8000 on it and a rough drawing. Shuddering.

 

It is clear he has taken advantage of my mum but I doubt this will have any bearing on the issue. I will just outline what happened as best I can.

 

Mum had an old conservatory. Not very nice looking but nothing wrong with it either. The sliding doors to the conservatory jammed and she could not open them to get out. (this is all without me knowing anything about it at the time or I would have stopped her).

 

She found this 'competent workman through MyBuilder to repair the door. He said it is beyond repair and would need new French doors. He then said why don't I change the whole front of the conservatory with new doors and new glass - it is only a 2 sided unit.

 

He then returned with a price but said, 'the roof could need renewing, but you know what, it would not cost a lot more to do the whole thing' and looking at what he wrote it appears he had inflated the cost of the new doors and one side of the conservatory.

to encourage her to have a whole new unit. So she went ahead and asked the bank for a loan which they gave her which is surprising as she is on state pension with pension credit top up.

 

Not sure what you need in relation to copies of the claim form but apart from more or less stating that mum owes him money, the solicitor has attached a 10 pages of 'particulars of claim' which she has to answer which amount to 44  separate points. Is it these that you want to see? He has also attached every letter mum sent to the builder to try and get the builder to deal with the situation. None from the builder as he didn't respond.

 

There is no way I can photo these and upload. I don't know if this is a bullying tactic to scare her, but is has scared me and I have to deal with it.

 

This solicitor that this builder has engaged appears to enjoy writing because the first letter that mum received was 11 pages long! Each additional letter went on and one as well. The builder  must have one hell of a solicitors bill to deal with and the claim form states solicitors cost to be advised. I am under the impression that as it is small claims that the builder cannot claim back his solicitors costs only a nominal sum for completing claim? Is this correct.

 

 So, she does not have a proper contract from this builder, just a scrap of paper with a children's type drawing of a stick house and the cost, plus a couple of more figures to add to the work. Half an A4 sheet with no name. I can see from her phone that she texted him several times - glad the texts are still there, asking him to provide proper contract/quote and his reply was I will bring it when I start. He didn't with excuse that he forgot, but by this time he had started work.

 

She has proper paperwork from the replacement builder, detailed work and costs etc.

 

I know mum is so unwell she cannot now deal with this herself but at least she documented everything that went on

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Should have added, want to do a counter claim as there is are no guarantees that the judge will see it mums way.

 

She cannot afford a solicitor and if I don't word the defence correctly she will have no chance against a smooth talking solicitor and builder. 

 

Is it detrimental to counterclaim?

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Making a counterclaim will make no difference as to whether the judge sees it your way or not.

We can help you a great deal here and give you a lot of confidence – but you will have to get the documents to us. You will have to find some way – and maybe she will have to post them to you.

Also, you could get hold of the claim number and phone the court or the issuing authority may be the business centre and ask them for an email copy. They might help you.
Don't worry about smooth talking solicitors or anything else. You have returned and acknowledgements so you have 28 days. That's lots of time to get things going so don't be in a hurry and let's do things carefully, but you will need to find a way of getting the documents to us – and any further documents that she receives should be sent to you as well.

I think you would be a good idea if she informs the core of a change of address and has all documents addressed to her but at your home. That will allow you to take control of things because clearly your mother is not in a position to do so.

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Also, I notice that you have avoided telling us the name of the builder. Please tell us the name of the builder.

Also, you haven't responded to my suggestions about setting it out in statements. Can this be done?

Also, you haven't responded my suggestion that you get a statement from the new builder who carried out the remedial work.

I'm afraid that if you want us to help you then you have to respond to points of questions which are put.

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Topic moved to General Legal Issues Forum.

 

 

.

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I have not told you the name of the builder as I don't think I it is appropriate to name and shame before this reaches it's conclusion. I have no idea if this person also uses this forum and it has no bearing on any advice being given as he is not a large company. I do know from mum that he has stopped outside her house at times making her anxious.

 

I did state initially - I think? that, the new builder is going to prepare a witness statement along with what the parts of the build that he could use would have costed.

 

Yes, it can all be put into the relevant statements.

 

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@Lilliboo it seems that my colleague @Andyorch has found a thread about exactly this problem which it seems was being conducted by your mother.

Please can you confirm if this is the one?

I'm afraid that we were asking questions in that thread which weren't answered and it also seems that the discussion broke off after your mother had this very frightening and distressing and threatening visit.

Presumably this is the visit to which you have referred above where the builder was removed by the police.

We still don't know the identity of the builder – and you should certainly tell us. Other people might be affected by this person and it will be better that the name is out in the open and it will allow us also to do a few background checks to see what other information we can find.

It's obviously a very nasty situation and you have our full attention and we will do what we can to help you – but I think that we will need to see the documents, we will need to know the name of the builder.

I think you should make some arrangements with the court to register a change of address. You don't need to explain to the courts that you are dealing with it on behalf of your mother – I think that would make it more complicated. I think you should simply notify a change of address so that as far as they're concerned your mother is living at your address. This means that you will get all the documents immediately and you won't need to play Chinese whispers relaying information or not having access to the documents.

It's essential that we help you draft a proper defence. We need to see it and come up with responses point by point. We will find it much easier to do then you will

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well I think you're quite wrong not to let us know the name of the builder. You should start trusting us because you have come to us for advice and we may be the best people to help you take control of the situation.

Can you try to make arrangements to register a change of address with the courts and have documents sent directly to you.

Is there some way that you can obtain a copy of the claim form. I understand from the previous thread that you only live a couple of miles away from your mother.

Let me point out that you are really being overcautious. Your mother was overcautious as well. Not only would she not tell us the name of the builder – but at one point early in the thread she was even reluctant to tell us about the amount of money involved because she thought it wasn't relevant.

It's all relevant and you are coming to us for legal advice and you should try to follow our lead. If you try to go this alone then you will find that you have great difficulty, that you will find it highly stressful – and you may even lose the case – although on the basis of what you have told us, I think it's unlikely

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HI, not sure what you are referring to? This is the first time I have been on this forum and although I have not yet read the strange post above it certainly is not me and without reading it, not sure it would even have been my mother - but will let you know in a bit.

 

Your advice about change of address is a good one particularly as I live in a flat with no access to my car park without a remote.

 

I do have legal Lasting Power of Attorney for my mother now for financial affairs. Not sure if this is relevant with the court?

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Maybe my colleague @Andyorch will be able to answer you about the power of attorney.

Even though you don't recognise the thread which has been posted, it has all the facts and the same time line as your own case. Maybe your mother posted it at some point – or somebody else acting on her behalf. It will be quite incredible to find such a similar set of facts from two different people.

Does your mother have a mobile phone? Can she take pictures of the claim form?

How did you manage to send off the acknowledgement?

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Quote

I do have legal Lasting Power of Attorney for my mother now for financial affairs. Not sure if this is relevant with the court?

 

It entitles you to sign legal documents.....not sure if it would allow you to respond as defendant in a court claim...will have to check.

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If it would help you, maybe you could send us an email to our admin email address with the name of the builder and any other confidential information and we can do some private research. All information we receive is in confidence – we never ever betray a confidence.

 

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Under Part 21 of the CPR any person who is found to lack mental capacity, defined as a protected party, cannot be involved in proceedings without the appointment of a litigation friend. This rule applies whether the protected party is the claimant or the defendant in the proceedings.

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part21/pd_part21

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Thank you for the information relating to the trader you are dealing with.

In terms of your question as to whether or not it makes any difference that this person is representing themselves on one hand as an individual and on the other hand as a company, on the basis of the information you supplied and also the information available on the Internet, they are not functioning as a limited liability company. The second name is simply a trading name and so to all intents and purposes, there is no difference between the person who is billing you as an individual and the use of a trading name as a claimant.

I would still urge you to name this firm or individual – because the kind of behaviour you are referring to which includes having visited your house from time to time and also having been removed from your property by the police a year or so ago is the kind of behaviour that should be made public as quickly as possible for the protection of all concerned.

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After speaking to my mother and getting her permission she is happy for you to name him. My concern is more that if he is aware of this website and manages to get into this post/topic, any advice you give me may give him an advantage as he will know what I am going to do and how I am going to do it. One would then assume it will be relayed back to his solicitor and there would be no surprise element.

 

It appears from the letters that were sent to him and then given to his solicitor, he has lied about and twisted every point, though it does not appear that even his solicitor is clued up on several issue which he is disputing, eg, building regs is one. According to his solicitor building reg are wrong. My council has sent me a print out showing the solicitor is talking out of his errm rear end.

 

Fensa registration is another when he claimed he was registered: Fensa state he did not apply for Fensa until after he did the work and my mother asked him for a cert. His solicitor states, it does not matter that he lied about this but he is now registered and he registered as a favour to my mother at a cost of £150. No matter that he has done work before that required this.

 

You are correct, it appears my mother did have communication with you at that time. She also contacted MyBuilder and told them about his work and behaviour and they suspended him for lying about his qualifications which he could not produce for my builder. Having removed his claims they then reinstated him.

 

There were several emails back and to between him and MyBuilder which in themselves are particularly revealing as he has contradicted himself with what he has told his solicitor and Mybuilder. So, he had one story for MyBuilder and one for his solicitor. They do not match. Thankfully my mother still had presence of mind to print them off.

 

Unfortunately a stroke has made her speech very bad, hearing deteriorating and this is going to make it very difficult for her to attend court although at the moment she is exempt being in the extremely clinically vulnerable group. She has letters from NHS to back this up if necessary.

 

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Thank you.

I don't think there's much we can do at the moment until we see the claim document. I think you are going to have to find a way to get this to us. Try to get it from your mother somehow or other but also get the claim number and there will be a help telephone number on the form somewhere. Phone them and ask them how you change the address because your mother has moved and also how to get an email copy of the document. Give them your email address

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Yes, we won't be able to do very much without sight of the claim including all of the particulars

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  • 2 months later...

Hi again, hopefully a final question. Update as follows. Managed to submit a defence and counterclaim. 
 

It appears that after the claimants solicitor received copies of the same that either the solicitor dropped his client or claimant dropped solicitor, not sure which but claimant now acting for himself.

 

Claimant has refused mediation and also failed to respond to counterclaim. Have been told by email can now apply for default judgement on counterclaim but no instructions on how to do this. Can anyone advise please?

 

I can only see a form N225 but this appears to be a default of defendant failing to respond to claim.

 

In the case of a failed response to a counterclaim does the claimant now become the defendant and defendant (mum) now become the claimant? Or is there another way to request default judgment. Thanks

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