Tarmac Driveway done by Tom Diggins Stockport Driveways, judgment plus costs - ***WON***

[BankFodder]

You don't give us any information as to the value of your claim.

Also, you say that you have had a report done. Has there been an assessment of the cost of putting the driveway into the position that it should have been if the job had been properly completed? This includes removing the existing tarmac – if necessary and replacing it. Or else, making good the poor workmanship on the tarmac which has just been laid.

You say that you have made a partial payment but there is money outstanding. You need to give us more details about this. Is Tom Diggins chasing you for that money? Has he written to you?

On the basis of what you say, you have a very excellent chance of success. However, it seems to me that you haven't really properly assess the value of your claim – and also, as you don't really know where he lives or what assets he has, you may have difficulty, first of all commencing the claim – and secondly enforcing a judgement.

It's a bit worrying that you have leapt into action with an issue day apparently of 11 April – and yet you really aren't sure of the steps you are going to take and some of the most essential aspects of bringing a legal action against anyone.

If there is any question over his address, then this could affect the issue of the claim right from the beginning.

If you have only just served your letter of claim on his new address, then the 14 days minimum notice period for a legal action certainly won't expire by 11 April.

I think you should take a breath and give us more information and be prepared to get everything in order before you proceed.

 

[BankFodder]

Please note that I have restructured your rather long post to make it more accessible.

Firstly, on the basis of what you say, you should be suing him for the £5000 – not simply a refund of the money that you have already paid him.
Your objective is to produce a result where you have the surface that you paid for and that it hasn't cost you anything more than the price that you agreed to pay to Tom Diggins.

Whether you sue him for £5000 or £3000, the difficulties are all the same. You will win your case but you will have difficulty enforcing the judgement unless you prepare very carefully.

If you don't make the issue of enforcement an integral part of your litigation plan, then you will have obtained a judgement in your favour, but which will remain unpaid and will mean that you are also out-of-pocket in respect of the court fees that you will have paid.

If you sue him at his mother's address and obtain a judgement there and then later on he objects to the judgement on the basis that he didn't know about the action because you didn't communicate with him at the correct address, then he will apply for a set-aside to the judgement and he will probably succeed – and you will probably have to begin again and incur further fees – or amend your claim – and incur further fees.

I expect that you have familiarised yourself with the business of bringing a small claim in the County Court – but have you given attention to the problem of enforcement? Unless you are simply suing to assuage your anger or because you consider that it's a point of principle, then there is a real danger that you would walk away empty-handed and in fact worse off than you started.

Did you know that you can check the ownership of the property on the land registry website? There is a fee for this but it could be a good place to start

[BankFodder]

Who has told you that you need to list extra costs separately as "mitigating losses"?

I think you should stop completely.

I think you should ascertain his address. If he owns the new property then you should certainly be dealing with that address and you should send a new letter of claim to that address.

You should be suing to get the whole £5000. You can always reduce the amount you are seeking later on but you won't be able to increase it. The difficulties of enforcing £3000 or £5000 will be the same and when you do get a judgement – as you surely will – you shouldn't be instructing bailiffs, you should be instructing the sheriffs – High Court Enforcement Officers.

You are apparently receiving advice from elsewhere. Where?

[BankFodder]

Good.

Let me point out that this is exactly the kind of information that Citizens Advice should have given to you in the first place.

I don't want it to sound as if we are being territorial – but citizens advice are very worthy and no doubt they are good at some things – but I'm afraid that litigation against slippery defendants is not one of the things that they are good at.

I suggest that you take your advice from us because we are assertive and we will help you all the way.

As I've already suggested, now that you have discovered what his address is and that he owns the property – so that it amounts to an asset against which you can enforce judgement, you are in a much better position.

However, you should start again in order to make sure that you don't leave any weaknesses in your position which he could then fasten onto, for instance by claiming that you haven't certified the pre-action protocol.

You have talked about some "mitigating losses", what are these? What on earth was CA talking about when they refer to these? I can tell you that we have never heard of them.

[BankFodder]

I think it's reasonable to enclose copies of the report that you have had and the quotation. Does the quotation refer to making good or repairing or undoing his work and then re-establishing the surface? In other words is a quotation for the £5000?

[BankFodder]

The whole objective to litigating on a contract is to come out with exactly what you expected to receive if the contract had been performed correctly.

He promised to resurface your drive for £6186. This means that at the end of a successful litigation, you should have the value of a resurface driveway and be out of pocket only to the tune of £6186 which is the price that you agree to pay Tom Diggins.

So in addition to recovering your £3186, you need to sue him for a further £5000 to pay for the damage which he has caused. Is this correct?

If this is right then I don't understand why you were only going to sue him for £3186 and potentially leave yourself out of pocket to the tune of £5000.

Also I've asked you twice now what is meant by "mitigating losses" and you haven't told me. Is there a reason for that?

 

[BankFodder]

Post up your original letter of claim.

I'm not aware of any ADR process you could get into with him. Presumably he is not part of any professional body or scheme. In any event, that would just delay things and there is no way that he could be forced to pay if a decision was made against him.

The only thing to do is to take rapid court action. Don't hang around. You can indicate that you are prepared to go to mediation if you want – I don't really see a lot of point but I suppose it would be a good gesture at a time when courts resources are stretched. I can imagine that you should be prepared for him to counterclaim on the balance of the money that you agree to pay him.

You shouldn't worry about a counterclaim from him and in fact it would probably be good news because it would mean that he is engaging in litigation.

It may well be that he has got no assets to satisfy a debt of that size – but you could certainly put the sheriffs in any way. It won't cost you anything other than a £66 transfer up fee. You would have to pay £50 anyway to put the bailiffs in.

Ultimately you may need to put a charge on his property and although that won't get you your money back immediately, it will put some pressure on and at least reserve your position.

How old is this guy?

Maybe you could list out all his different business names and websites. That will at least help other people.

You should also start making sure that there are reviews on Google and trust pilot et cetera to reflect what is happening.

[BankFodder]

We are still waiting for you to post up your original letter of claim

[BankFodder]

Okay. If you can retrieve it tomorrow then it would be interesting to have it posted up here.

In the meantime, if you want to draft a new letter of claim and post it up here then we could start to work through it.

Presumably as you were expecting to issue the claim in the next six days, you have already registered on the County Court moneyclaim website and have started drafting your claim including producing a particulars of claim.

Please could you post that draft particulars of claim here as well

[BankFodder]

The identifiers are fully visible underneath your redaction. I've deleted the file

[BankFodder]

 

 

Quote

                                                                                                            

 

                                                                                                                    5^th April 2021

Mr Tom Diggins

13 Cottage Gardens

Bredbury

Stockport

SK6 2BW

RE:  Installation of tarmac driveway at xxxxxxxxxxxx -  LETTER BEFORE COURT ACTION

Dear Tom,

We wrote to you on 29^th March 2021 at 3 College Close, Heaviley, Stockport, SK2 6TJ.

Since that date, we have obtained evidence that in December 2020 you purchased and are now living at 13 Cottage Gardens, Bredbury, SK6 2BW .

On Saturday 3^rd April 2021, we hand delivered copies of previous correspondence regarding this matter to 13 Cottage Gardens, Bredbury, SK6 2BW that had previously been signed for by “Diggins” at 3 College Close, Heaviley, SK2 6TJ.

For court purposes, we are re-issuing our letter before court action to you at your confirmed address and will extend the response date to Wednesday 14^th April 2021.

From you, we are claiming £8236.00, this being £3186.00 we have paid you to date and £5050.00, this being the additional amount it will cost to put right the work you have done.

If you do not agree with our claim, please send a detailed response by return, with any supporting documentation.

If you are a member of an ADR Scheme, please send the details.

We refer you to the Practice Direction on Pre-Court Action conduct under the Civil Procedure Rules, in particular to paragraph 13-16 which sets out the sanctions the court may impose if you fail to comply with the Practice Direction.

If we do not hear from you by Wednesday 14^th April 2021, we will begin court proceedings without further notice.

We look forward to hearing from you.

Yours Faithfully

 

 

 

xxxxxxxxxxxxxxxxxxxxxxx

 

I think there is a lot of work to do.

Also, you should have registered with money claim online already and you should be well underway and your basic particulars of claim should have been drafted by now. If you want to do this – then you have to do it and not muck around

[BankFodder]

Please have a look at the proposed draft below. Let us know what you think about it – whether it is correct – whether you would be prepared to sign it off. Whether you think there is anything missing

 

 

Quote

Dear Tom

Letter of claim

 

As you know on the XXX date we contracted with you to resurface our driveway. You quoted a figure of £6186.
So far we have paid you £3186. In principle there is a figure of £3000 which is outstanding.

Although you have apparently completed the work, in fact it is clear that the resurfacing is of extremely poor quality and unacceptable.

We have tried to deal with you about this and you have refused to cooperate and you are adamant that the work is of a satisfactory standard.

As you know, we have obtained assessments as to the quality of the work and also quotations for putting the matter right.
A number of assessments taken independently have all concluded that your workmanship is so poor that there is no possibility that the resurfacing can simply be put right.
The assessments are unanimous that the material that you have laid down on the driveway has to be removed and replaced from scratch.

As you can imagine, this means that there is extra work to carry out resulting in extra expense.

You have already been provided with the information and you have been fully appraised as to the results of the various reports and quotations.
The cheapest quotation for remedying the situation comes to £11,000.

You have refused to return the £3186 which we originally paid to you. In addition to that, there is a further figure of £4814 which apparently is the cost of removing the material that you have installed and returning the surface to a condition which will allow the installation of a tarmacadam surface to a proper standard.
This means that in order to recover the situation, we require a payment from you of our initial payment of £3186 and which you have already refused to pay over to us plus the figure for remedial works of £4814 which totals £8000.

For the avoidance of doubt, we have lost confidence in your ability to complete the work to a satisfactory standard and also in your readiness to undertake all necessary works with any goodwill.
Because of that, there are no circumstances in which we would be prepared to consider allowing you back onto our property to carry out the resurfacing.

We have already supplied you with copies of reports and quotations, but once again and for the avoidance of doubt, this letter of claim is accompanied with further copies of all relevant documentation and photographs.

If you do not pay us the £8000 which we have detailed above within 14 days then we will start a legal action against you to recover this plus interest plus costs and without any further notice.

Yours sincerely

 

[BankFodder]

I've just noticed that I haven't got the figures completely right. Please amend

[BankFodder]

No, your contract was with him in person. By the way do you have any written evidence of the contract or any written agreement?

Also, we will want to see your particulars of claim before you send it off.

Also, we want to see your fully corrected and finalised letter of claim before you send that off as well.

[BankFodder]

Also, did you pay by cash? Did you get a proper receipt and a VAT receipt?

[BankFodder]

Well read what we have to say about what happens when people pay by bank transfer to these kinds of tradesmen or they pay by cash

[BankFodder]

Okay that's fine – although you should revisit your maths in the second paragraph.

Go ahead and send it and then let's get ready with the particulars of claim

[BankFodder]

It is a very sensible question.

Was he using a trading name?

[BankFodder]

Incidentally, do you have the means to be able to have the work done now before getting a judgement?

There will be much better being able to show that you have spent the money rather than claiming "in advance" as it were.

[BankFodder]

I think it would be very advantageous to you to put the clearing up work in hand and then plan to undertake the resurfacing later on after you have obtained your judgement and enforced it.
I'm assuming that you will eventually be able to enforce the judgement because you've identified an important asset.

Does he have a business address where he stores tools or machinery or materials?

I would be suing him as – Tom Diggins – trading inter-alia as Stockport Driveways 

[BankFodder]

There is no disadvantage to you to having his name prominently displayed. His name and his business names are on the thread anyway so they will still come up in Google.

If he does see it, don't worry. It will just increase the pressure on him and that's no bad thing.

 

[BankFodder]

No. I don't think he's waived the 14 days notice.

However what he is saying is useful to you. What have you to say about his assertion that you said you were pleased about some of the work?

Also, I thought you had already supplied him with copies of the assessments/inspections which have been carried out

[BankFodder]

So in other words he hasn't even received the letter of claim until today? So this response is not a response to the letter of claim so why would you think that the 14 days had been waived?

[BankFodder]

Well you should certainly stick by the deadline which you have set out in your letter of claim.

However, as his letter is a response to a different letter from you, I think you should establish a paper trail by pointing out that at no time did you express any satisfaction with any part of the job which have been done and that in fact you have copies of a series of messages which you sent to him which show in fact that you were always unhappy and you told him about that.
Remind him that the clock is still ticking and that you will be disclosing all documents to the court.

Tell him that if he wants to have his own independent assessment carried out then he is welcome to do so – by appointment with you – and you will be very happy for him to allow his own independent inspectors to carry out their own report and provide their conclusions to you and also to submit a copy to the court.

[BankFodder]

Just post it up