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

[BankFodder]

Get screenshots but probably might as well keep it quiet because you have already got evidence and correspondence with other companies. So that is probably fine for the moment

[smithy49]

Hi Bank Fodder,

 

I hope you are well?

 

I have received an email today with a date for the mediation call, 22nd June. It does say that if I am not open to compromise and reaching a settlement then the mediation shouldnt go ahead.

 

My instinct tells me that I shouldnt have to compromise and settle for anything less than the claim I have input but am unsure whether it will go against me when it reaches court if I haven't given it a go.

 

Do you have any advice on this please?

Thank you

[BankFodder]

I quite agree that you have no reason for compromising on anything.

Mediation is meant to be about compromise that actually this means that you should consider giving up some of your rights.

I would recommend that you go onto the mediation that you simply stand your ground. The mediator might try to put pressure on you to reach some compromise and this would be improper – but you can simply say that your compromise is that the defendant will be spared the expense of having to go to court and losing and getting a judgement against them and having to pay interest. That's your compromise. That's the advantage to the defendant in settling straightaway.

If you look at the postal deliveries sub- forum here you will find several excellent mediation summaries from people who have sued Hermes. Although it's a completely different industry, the mediation story will be broadly the same and it will give you a good idea of what to expect.

 

During the mediation take lots of notes. Make sure that you have got the basics of your case reduced to a number of bullet points and also the basics of his defence reduced to a number of bullet points and don't get diverted

[smithy49]

Sorry, I thought I had replied to this the other day.

 

I have received an email today to say the defendant is unavailable on the 22nd for mediation and they will be in touch when he has provided dates he is available. It doesnt give a time limit on this.

 

I had predicted this would happen as a delay tactic. I have emailed them back to say I had arranged time off work for it and that out of all the unavailable dates he put down on his defence submission, the 22nd wasnt one of them. I have asked whether it is an option to decline the mediation now and go straight to court

[smithy49]

Hi,

 

Just an update, I have just received notification that our case has been transferred to the local County Court.

 

If we decide to go ahead with the amended claim to take into account false mis-representation, is this the time to do it?

 

Thank you

 

 

[BankFodder]

Yes you could do it now. I'm just trying to cast my mind back over this thread to understand what particular advantage it would bring and the thread is too long for me to go all the way through it.

Maybe you could explain what I said about this previously. Evidentially, of course, it will be extremely helpful but did I suggest that it should be added as a new cause or an additional cause of action? Did I suggest that you could increase the damages that you are seeking as a result of this?

 

Don't forget that to add this is an additional cause of action would require a fee of about £250 and also the defendant would get additional time to file a defence against new allegations. Maybe I didn't make this clear before

[smithy49]

Thank you for your reply.

 

Yes, you suggested that by his false advertising he had effectively lured us into the contract with him which has lead us to where we are now. You suggested increasing the claim.

 

To be honest though, the claim is already quite close to the maximum limit and that, coupled with the additional fee to make the amendment is veering me towards sticking with what I have already submitted.

 

If the additional info was likely to seal the deal I would go for it but the evidence we have is already very damning.

[BankFodder]

Thank you. I recall now that you only revealed the misrepresentation after the claimant been issued.

I agree that if you are close to the small claims limit anyway, then there doesn't seem much point. However, you definitely have to exploit this misrepresentation because it is quite damning.

I think it might be an idea to produce a witness statement about it

 

Quote

1. Your search for suitable builders
2. the discovery of Tom Diggins website/advertisements et cetera
3. the references in those advertisements to particular professional bodies et cetera
4. you are impressed by these
5. as a result you chose Tom Diggins over other competing builders
6. your disappointment and alarm at the quality of the work carried out by Tom Diggins
7. your discovery that Tom Diggins representations were false
8. how you discovered this
9. evidence of Tom Diggins being forced to remove certain advertising
10. your discovery that he trades under different business names using different websites
11. your discovery that these various websites are also carrying misleading information
12. your discovery that despite being required to remove misleading information you find that he is continuing on other websites to carry the same trade associations
13. had Tom Diggins not trumpeted an association with the various trade organisations, you would not have entered into a contract with him

statement of truth

 

I suggest that you use above scheme as a model. Don't include too much narrative. Simply make your points in a clear and effective way. Numbered paragraphs. One point

Use a Microsoft Word document. Upload it here when you're done and we can polish it off.

 

[smithy49]

Thanks very much for this advice, its really is appreciated.  I will put something together and upload. 

[BankFodder]

Each time you refer to a website for which you have a screenshot or some other reference to something else for which you have evidence, refer briefly to the evidence – give it a number – appendix 1, appendix 2 et cetera and then you will attach those appendices to the witness statement.

So,
 

Quote

The defendant, Tom Diggins owned a website – address, which made various claims as to the quality of his work and included claims that he was associated with XXX professional body (appendix 1)
or
the website displayed the logos of XXX Association XXX company, which clearly were intended to give the impression that the defendant had been authorised by those bodies or had been validated by them (appendix 2)

Blah blah

 

[smithy49]

Great, thank you. 

 

Have a good evening 

 

 

[BankFodder]

Any update on this please?

[smithy49]

Hi, You must have a sixth sense as we received out court hearing date in the post yesterday...4th November 2021.

 

We have been asked to send 3 x CVs of Chartered Surveyors to the defendant by 4pm on 26th July and he has to choose one and notify us by 4pm on 29th July. 

 

We are to go halves on the cost.

 

I spent yesterday afternoon ringing Chartered Surveyors but with little success. A few are supposed to be calling me back today.

 

I rang the court yesterday to ask how the payment works...as in, do we get invoiced half of the cost and the defendant the other half but the guy I spoke to didnt know the answer.

 

All in all, not ideal

 

[BankFodder]

I have to go very quickly so just a quick note –

Don't get hung up on the invoicing and don't start relying on the other side for this. Take control of it and keep control. This means, that you provide him with the details that are required. Make sure that this is all in writing and that you have a letter in writing. He makes a choice then if it comes to it you pay 100% and if he refuses to reimburse you then you simply point that out to the court.

If he doesn't make his choice then start following up with regular messages at five day intervals making it clear that you have provided him with the information and you don't know why you haven't heard from him because this needs to move along.

At some point you may need simply to let him know that if you don't hear from him within a certain amount of time, that you will put the survey in hand yourself having chosen one of the three. Once again make sure everything is in writing so that the court can see that you have bent over backwards to accommodate this guy and that he has made things difficult.

Don't forget, every mistake he makes or every piece of non-cooperation is good for you.

 

I don't know if I suggested that you keep a good log of all the effort/time that you spend on this right from the very beginning. If you can point to his unreasonable behaviour in the litigation then you have got a good basis for asking the court to exercise its exceptional discretion to award you costs on the litigant in person rate which is about £18 per hour.

Keep a tight schedule. Keep it in an Excel spreadsheet.
Please keep us updated.

[smithy49]

Thanks for your advice.

 

The court letter says that if we dont receive a response from him by 4pm on 29th July we can instruct the surveyor of our choice. 

 

We have to instruct a Surveyor by 4pm on 2nd August and send them copies of the court letter, our claim and the defendants response. 

 

We have the details of a groundwork expert who is highly regarded in his field. He has said he can do it but I am unsure if we can use him with him not being a Chartered Surveyor. He is qualified to act as an expert witness.

 

If we are unable to get 3 x CVs before 26th July then it might be our only choice to put him forward. 

[BankFodder]

Do your very best and keep a paper trail of the effort you have gone to. If the other side doesn't cooperate then you will have to go it alone. I think you would be entitled to say to the court that you don't have any expertise in this matter and that if the other side had contributed to the effort, he would have been in a better position to identify suitable experts to carry out the survey.

Make sure every step you take is fully documented in terms of a letter to him – even if he is not responding. You need to show the court a complete file of the people you contacted, the responses that you got, the attempts you made to contact the other side about this and asked for an opinion on who to go for, and why you eventually settled for the expert that you did.

If you do all that and have got it fully documented then I can't see that a court would criticise you – especially with evidence of non-cooperation from the other side.

I suggest that you pull all those documents together in one file and have a cover sheet outlining a bullet pointed the steps that you took with references to each document, treating each one as an appendix.

Have a look at our advice on preparing your court bundle for an idea as to style about how to prepare the index sheet

[smithy49]

Thank you, I really appreciate your advice, as always.

 

Although its stressful and a hassle I could do without, I feel like I am on it and in control. I am keeping a list of all the companies I am contacting and their responses and will be able to demonstrate the efforts I have gone to on this.

 

I'll keep you updated!

[smithy49]

Hi there,

 

Quick update: we sent the CVs of three expert witnesses to the Defendant and he was supposed to choose one and respond by 4pm on 29th July.

 

He emailed late last night (30th) to say he had been away and was catching up with emails. (We have also been abroad this week but managed to uphold our side of things whilst we were away). He has offered to pay us £3200 by the end of the weekend (this is the amount we initially laid out to him).We aren't going to accept that.

 

We have to instruct an expert witness by 4pm on 2nd August which we are prepped and ready to do.

 

We are prepared to take this all the way but we are also contemplating trying to settle out of court and have a minimum figure in mind of what we would accept.

 

We are going to respond to the defendant and decline his offer of £3200. My question is, if we go back to him and say "We are prepared to accept X amount in full and final settlement" does this jeopardise our position or is it acceptable in the eyes of the court?

 

We are in no doubt that the expert witness report will not be favourable for the defendant

 

Thank you in advance for any advice you can offer 

[BazzaS]

You can make an offer (giving a sum you would accept, to avoid the hassle of the case continuing), and, if made “without prejudice save as to costs” he can’t use it to influence the judgment, only the issue of costs once the case is concluded.

[smithy49]

Ok, I understand...thank you.

 

 

[BankFodder]

If you decide to make an offer of settlement then I suggest that it should only be done by means of a Tomlin order. Look that up – but it is the only way that you can secure your position.

Frankly I think it's too early to offer to settle and I think you should push it all the way.

The way things are going I don't even see that he is going to particularly engage with the process and I think it is beyond doubt that you will get a judgement in your favour.

Even if he agrees some kind of settlement it may still be some kind of delaying tactic so that eventually will still have to go to court. A Tomlin order will make it easier – but frankly why bother compromise now.

Get your judgement and then if you really think there is going to be any problem enforcing it then suggest that you might settle if he stops causing trouble.

[BankFodder]

If he has fallen behind on deadlines, then you should write to him about it so that you have got it in a letter and also make sure that it is included in the documents that you supply to the court so the court those as well.

Every time he makes a mistake, every time he misses the deadline, it plays to your advantage and you should exploit it as hard as you can.

At the end of the day if he litigates unreasonably then you should make a request the court to exercise its exceptional discretion to award you litigant in person costs. These are currently £18 an hour and it would be a good idea if you started putting together a spreadsheet and try to itemise all the time you have spent preparing and dealing with the action so that you have got a solid well presented property calculated claim for costs. It's all got to look reasonable and not like a money grab – but you may as well compile it all on.

At the end of the day the enforcement problem is going to be exactly the same. If you can add a load of costs then that is something to give away to him if he is prepared to settle quickly and not cause any problem with enforcement.

[smithy49]

Thank you Bank Fodder.

 

We feel that we are in a good position if we proceed and the expert witness report is unlikely to be favourable for the defendant based on the current condition of the driveway. We were just contemplating a settlement as its more preferable than going to court. I doubt he would pay us the amount we would have suggested anyway.

 

I am going to email him and decline his offer anyway and will instruct the expert witness by Monday

 

The witness report has to be with the court by 31st August. Just out of interest, is there ever a scenario where the evidence is so damning to one party that a Judge would make a judgment without a hearing? Or does everyone get their day in court so to speak?

[BankFodder]

There is an application for summary judgement which you might make on the basis that there is no triable issue but I think that it has gone too far for that.

The best thing to do is gather all your information and let things take their course. As the information stacks up against him he might be minded to increase the settlement offer but I would certainly take it all the way till at least the hearing day.

When he sees copies of the reports he may decide to increase his offer.

I think the time to showing showing flexibility is after you've got the judgement.

In the meantime, you need to be researching and making sure that when you get the judgement that you will be able to enforce it which means that you have got to make sure that you have properly identified his assets.

Izzy aware that you have got all this material about his false advertising?

 

[smithy49]

Thank you, I have sent an email to him declining his offer and making it clear that I managed to meet the deadlines despite being on holiday myself.

 

He isnt aware that I have all the info on his false advertising. I was going to submit that in my witness statement which has to be in by 16th august. Would you still suggest I do that?