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

[smithy49]

Evening,

 

Response just received via email. Although it says his defence is attached, it wasnt:

 

Without prejudice save as to costs

 

I attach a copy of the defence which I have today filed with the court.

 

I had never wanted the dispute between us to escalate to court proceedings but you have refused to allow me to come back to the property to inspect the work that is necessary. Once we can agree the work that is necessary I am happy to complete such works and will only request the balance of the £3000 contract price once the work has been undertaken to your satisfaction.

 

You have suggested that it would cost £5050 to have the work done. I believe that the people who have quoted is this figure to you are trying to take advantage of the situation and you will be aware that you can not aim to gain profit from the current situation. You will also be aware the court will only compensate you for the loss and not to profit from the situation. That loss includes cutting out/ scraping back tarmac and relaying the tarmac. That cost is considerably less than the £3200. 

 

You are under a duty to mitigate your loss. The most appropriate course is for you to allow me to do the work. The works should not cost a contractor any more than £3200 so the total price you should pay will not exceed £6200 and you will have suffered no loss because that is the contract price to which you agreed

 

The correct remedy and the remedy which the court will suggest is for me to come back to complete the contract. The quality of the work was not sufficient to enable you to rescind the contract.

 

I have taken advice from a solicitor who tells me I have good prospects of successfully defending the claim. That having been said I have no wish to become embroiled in the cost and time of litigation and so I am prepared to offer to repay you the £3000 which you have paid to me in full and final settlement of the claim.

 

Even though this matter is being dealt with in the Small Claims Court I reserve the right to draw this letter to the attention of the Court on the question of costs because it is unreasonable for you to proceed I n the light of this offer.

 

[BankFodder]

Maybe you like to let us have a few comments about this letter.

He says that you haven't given them any opportunity to carry out his own inspection.

[smithy49]

He says that but we tried to talk to him face to face on the drive initially and he wouldnt engage, we have a photo of him on the drive with another person looking at the work and we have numerous emails/texts etc initially offering to bring in the tarmac supplier (they offered to come and inspect) at a time when the defendant could be present too.

 

He never took us up on that.

 

We have since offered him the opportunity to have his own independent inspection done but he hasnt done so.

 

 

Also, we will not profit in any way from the claim. 

[BankFodder]

Okay. Now you see the value of keeping a paper trail and making sure that you refer to him every step you are taking so he is fully informed before anything is done.

He doesn't say that his letter is accompanied by the defence. He says he has filed a defence – so I expect that you will receive that soon.

However, I think you should respond to his letter and point out that he is quite wrong that you haven't tried to consult with him and given him an opportunity to inspect.

Then point out the various times and dates that you have tried to do this – including the circumstances.

Point out to him also the dates on which you have tried to communicate with him about this and the fact that he hasn't responded. List out hese dates.

Then end up saying that for the avoidance of doubt you are including copies of the emails/messages – and also a photograph of him at your premises where the matter has been discussed.

Tell him that if that is the advice he has received from his solicitor then he has misled the solicitor.

Tell him also that because he is not telling the truth in his letter, he has vitiated his without prejudice protection and his letter and your rebuttal will be shown to the court.

Please draft this letter and post it here for us to check it over.

[smithy49]

He didnt send this by letter, it came via email and he says he has attached a copy of his defence. Do you think the body of his email is the defence he is talking about?

 

 

[dx100uk]

thats not a CPR compliant defence its a without pred letter to you.

[smithy49]

He seems to be all over the place with it.

 

I wasnt going to respond until I received his formal defence via Money Claim but I am going to go and type up all the dates atc as per advised in previous post

[dx100uk]

thats not his defence

[smithy49]

15 minutes ago, dx100uk said:

thats not his defence

I understand that. I was meaning I was going to wait until I receive a copy of his actual defence submitted to Money Claim rather than respond to this latest email. 

[BankFodder]

Respond to his without prejudice letter now in the way that I suggested. Post a draft here.

If he has attached a copy of his defence then you may as well show it here – although it won't be official until you have received the file copy through moneyclaim

[smithy49]

He didnt attach a copy of his defence.

 

I am typing up  my response, I'll post it shortly, thanks

 

[dx100uk]

hidden please save as PDF or simply copy and paste the text here in a msg box

docx  has everything in file/info like your pers name etc.

[smithy49]

I write in response to your email dated 21^st May 2021.

 

I have not refused to allow you back to my property to inspect the work and would refer you to the following communication for proof of this:

 

12.3.21 Text message sent to Thomas Diggins pointing out faults with the work.

12.3.21  face to face conversation between Hayden Bailey and Thomas Diggins on the driveway of 207 Dialstone Lane where concerns regarding the standard of work were pointed out to Thomas Diggins. Thomas Diggins did not engage, refused to accept there was an issue and did not offer a solution. He said “ it’s a quality job, it just just needs to bed in”.

12.3.21 email to Thomas Diggins asking him to arrange a visit from Cemex (tarmac supplier) to inspect the driveway with both parties present.

14.4.21 Whats app message to Thomas Diggins asking him to email his consent to arrange an inspection by Cemex.

15.3.21 Email to Thomas Diggins containing request to arrange a site visit from Cemex.

16.3.21 Thomas Diggins plus another were captured on a security camera on our driveway at 11.26am. They were inspecting the driveway.

7.4.21 Letter to Thomas Diggins containing an offer for him to arrange his own independent assessment of the driveway

 

As I am able to provide copies of all of the above, it is clear that you have been untruthful in your email to me and have, therefore, vitiated your without prejudice protection and your email plus my response will be shown to the court.

 

You have chosen to discredit the inspection report and costings I gained independently yet have failed to take up my repeated offer to gain access to my property to have your own independent inspection carried out.

 

I would also point out that, if your Solicitor has suggested your defence is likely to be a success you have clearly misled them with your facts.

[BankFodder]

7 hours ago, smithy49 said:

I write in response to your email dated 21^st May 2021.

 

I have not refused to allow you back to my property to inspect the work and would refer you to the following communication as evidence of this:

 

12.3.21 Text message sent to Thomas Diggins pointing out faults with the work.

12.3.21  face to face conversation between Hayden Bailey and Thomas Diggins on the driveway of 207 Dialstone Lane where concerns regarding the standard of work were pointed out to Thomas Diggins. Thomas Diggins did not engage, refused to accept there was an issue and did not offer a solution. He said “ it’s a quality job, it just just needs to bed in”.

12.3.21 email to Thomas Diggins asking him to arrange a visit from Cemex (tarmac supplier) to inspect the driveway with both parties present.

14.4.21 Whats app message to Thomas Diggins asking him to email his consent to arrange an inspection by Cemex.

15.3.21 Email to Thomas Diggins containing request to arrange a site visit from Cemex.

16.3.21 Thomas Diggins plus another were captured on a security camera on our driveway at 11.26am. They were inspecting the driveway.

7.4.21 Letter to Thomas Diggins containing an offer for him to arrange his own independent assessment of the driveway

 

I have copies of all the above communications and will be including them in my court bundle when time comes for disclosure of documents before the hearing.
It is clear that you have not given the whole story to the solicitor whose advice you have taken and because you have concealed these facts, you have vitiated your without prejudice protection and your email plus my response will be shown to the court.

 

You have chosen to discredit the inspection report and costings I gained independently yet have failed to take up my repeated offer to gain access to my property to have your own independent inspection carried out.

 

I'm afraid that the quality of the work that you carried out on my driveway plus your refusal to join in in any kind of engagement to resolve the problem until I was eventually obliged to issue legal action – plus your apparent lack of candour in dealing with your own solicitor and also with me has undermined my confidence completely to the point where there are no circumstances under which I would allow you back onto my property to complete or remedy the work.

I do not believe that you are able to produce a piece of work of sufficient quality – and certainly the kind of quality which was contemplated in our contract when you first agreed to undertake the task.

 

You are still more than welcome to have the driveway inspected by your own independent inspector with a view to producing a report for the purposes of defending the court action against you – but this must be done by appointment with me and I will need to know the identity of the expert that you will be proposing to carry out the inspection.

Yours sincerely

 

I've made a few edits which you will see in red in order to highlight where in your letter they are contained.

Very nice touch that you have obtained footage of him in your security camera. Well done.

 

[smithy49]

Thank you, as always, for your help with this. 

 

I will email him now and if I receive a response I will post it on here

[smithy49]

Just one more question...

 

44 minutes ago, BankFodder said:

I do not believe that you are able to produce a piece of work of sufficient quality – and certainly the kind of quality which was contemplated in our contract when you first agreed to undertake the task.

  Would it be a good or bad idea at this point to mention that we have screenshots of his website showing false advertising in the form of logos of reputable paving suppliers showing him as an approved installer? We also have screenshots of fake google reviews that he has written himself and some written by his family members

 

The logos have now been removed after the companies contacted him to say they would be reporting him for false advertising.

 

The reason I ask is that the fake reviews and info on his website were one of the factors of us engaging in his services

[BankFodder]

That's very useful. You've been very diligent about gathering the dirt on this guy.

No I would keep it under wraps for the moment.

[BankFodder]

In fact, I wish we had known about this before you started the action. This sounds like fraudulent misrepresentation to me – is quite serious and could certainly up the amount of compensation you are seeking.
Wait until he puts in his defence and then we'll have a look. Maybe we will think about amending your claim.

 

[smithy49]

Ok, thank you

[BankFodder]

Anything else we don't know about?

[smithy49]

Not sure if this is relevant but he uses false addresses (his Mum's neighbour's house numbers and other addresses) on his various websites and the van that he used during the time he was working at our property,and continues to use, has no MOT

[BankFodder]

Okay. Store it all up. This is useful information to undermine any credibility he might have – but the false advertising is extremely serious and that is actually the cause of action on its own.
Had we known, then we would have included it in the claim straightaway. I'm afraid that it is slightly more complicated now that you have only told us about this because we will have to amend the claim at some point – but it is certainly worth doing because we will be able to increase the amount of damages you are claiming to include a punitive award.

We will have to outline the inconvenience to which you have been put and that had you known the truth, you would not have entered into a contract with him and you would have not suffered in this way.

We need to keep the claim to less than £10,000. How much you claiming at the moment? Is it about 8000?

[smithy49]

Yes, the exact amount is £8694.30.

 

Im a bit gutted I didnt bring this to your attention earlier. I contacted all of the companies when all the trouble started and have copies of my emails and their replies

[BankFodder]

You should start putting together a detailed note of all the time you have taken – and will continue to take learning about, preparing for and conducting this case.

You should also start putting together a retrospective diary of all the time you have put in finding contractors – may be taking time off work et cetera to be on hand.

Any additional expenses/losses to which you have been put.

Start keeping tabs on everything – because we will need to show that you have incurred losses – either in terms of actual expenditure or in terms of lost valuable time in order to make a case for an enhanced award of damages.

We may also eventually think about asking the judge to exercise discretion and to award you litigant in person costs.

Keep tight notes of everything. An Excel spreadsheet will probably the best

[smithy49]

Ok, thank you. I will set up a spreadsheet and add all the detail and will keep a log going forward