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    • My WS as I intend to send it... any problems anyone can spot?         In the county court at Middlesbrough Claim No:  Between Vehicle Control Services Limited (Claimant) V   (Defendant) Witness Statement Introduction It is admitted that the Defendant is the registered keeper of XXnn XXX   Locus standi/bye-laws and Relevant land Schedule 4 of the Protection of Freedom Act 2012 (PoFA) allows recovery of unpaid parking charges from the keeper of the vehicle. However, the first paragraph 1 (1) (a) states that it only applies “in respect of parking of the vehicle on relevant land:”. The definition of “relevant land” is given in paragraph 3 (1) where subsection (c) excludes “any land ... on which the parking of a vehicle is subject to statutory control”.  The bus stop is not on relevant land because the public road on which that stand is on is covered by the Road Traffic Act.  Notwithstanding that the claimant claims that " the claimant has given the Defendant its contractual licence to enter the site", the claimant has not given any contractual licence whatsoever. This is a road leading to/from the airport which is covered by the Road Traffic Act.  A list of highways on the Highways act 1980 does not even exist. The defendant brings the attention of the court that VCS is using this non existent document issue as a deliberate strategy to debunk the fact that this road is not relevant land. VCS are put to strict proof that it is relevant land not covered by the Road Traffic Act nor by Byelaws. While it is true that landowners can bring in their own terms, it is also true that whatever terms they bring  cannot overrule Byelaws and the Road Traffic Act. If Bye Laws are involved then the bus stop is not relevant land and neither is the specious argument about First Great Western Ltd. Is the claimant ignorant of the Protection of Freedoms Act 2012? The road outside of Doncaster Sheffield Airport is not relevant land and is not covered by the Protection of Freedoms Act. That makes the charge against the claimant tantamount to fraud or extortion. The claimant mentions a couple occasions where they have won such cases. It is brought to the attention of the court that none of those cited cases were on airport land. VCS actually has also lost a lot more cases than they have won using their prohibitive signs.  Airport land is covered by Bye Laws and hence the claim by VCS is not applicable in this instance. The remit of VCS ends in the car park and does not extend to the bus stops on public roads or land which they have no jurisdiction over. All classes of people go to the airport. This includes travellers, taxis, fuel bowsers, airport staff, companies delivering food and drink for each aircraft, air traffic controllers and buses with passengers. It is therefore absolutely ridiculous to attribute VCS with any sort of permissions. The defendant submits that VCS should not confuse a major thoroughfare with a car park and presume to act as land owners and usurp the control of any land which is not relevant to them.   Protection of Freedoms Act The clearest point on section 4.1 of the Protection of Freedoms act is that “The provisions in Schedule 4 are intended to apply only on private land in England and Wales. Public highways are excluded as well as any parking places on public land which are either provided or controlled by a local authority (or other government body). Any land which already has statutory controls in relation to the parking of vehicles (such as byelaws applying to airports, ports and some railway station car parks) is also excluded.” Therefore, as this case pertains to an airport, the claimant unlawfully obtained the registered keeper’s details against the defendant’s vehicle. Thus, on this basis alone, the defendant implores the court to throw out this case. Notwithstanding the above point, if perchance Schedule 4 of the Protection of Freedoms act 2012 were to apply, the claimant is put to strict proof that they complied with the requirements of section 7 stating, “(1)A notice which is to be relied on as a notice to driver for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met. The notice must — (a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;” Without such proof the court must of necessity throw out this case forthwith.   Deceit, Intimidation and Extortion The Claimant’s Particulars of Claim include £50 legal costs, yet in the letter dated  03/06/2021, the Claimant stated that they were no longer represented by Elms Legal and all further correspondence should be sent to the VCS in-house litigation department. Why should the Claimant be asking the Defendant to contribute to their employee’s salary?  Furthermore, as per another letter dated 30th July 2021, the Claimant wrote, ‘Should you fail to accept our offer of settlement then we will proceed to Trial and bring this letter to the Court’s attention upon question of costs in order seek further costs of £220 incurred in having to instruct a local Solicitor to attend the hearing in conjunction with the amount claimed on the Claim Form.’ I find this an extraordinary statement given the Claimant knows legal costs are capped at £50 in Small Claims Court. I cannot think of any reason why the Claimant would write this letter other than to intimidate the opposing party with the threat of an extortionate sum of money, hoping they would be able to take advantage of someone not knowing the Small Claims Court rules. Given that this letter came from the Claimant’s in-house litigation department, clearly well-versed in the law, this cannot be anything but deceitful and disingenuous behaviour which the court should never tolerate.    Contractual costs / debt recovery charge  In addition to the £50 legal costs, the Claimant is seeking recovery of the original £100 parking charge plus an additional £60 which is described as ‘debt collection costs’. In the Vehicle Control Service v Claim Number: 18 on 4th September 2019, District Judge Jones-Evans stated, ‘Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates […] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law. It is hereby declared […] the claim be struck out and declared to be wholly without merit and an abuse of process.’  In Claim number F0DP806M and F0DP201T, Britannia v Crosby went further in a landmark judgement in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes GC, the Designated Civil Judge for Dorset, Hampshire, Isle of White & Wiltshire. District Judge Taylor echoed the earlier General Judgement or Orders of District Judge Grand stating, ‘It is ordered that the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedom Acts 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998…’ Vehicle Control Service v Claim Number: 19 51. Moreover, the addition of costs not specified on signage are also in breach of the Consumer Rights Act 2015, Schedule 2, specifically paras 6, 10 and 14.  It is the Defendant’s position that the Claimant in this case has knowingly submitted inflated costs and thus the entire claim should be similarly struck out in accordance with Civil Procedure Rule 3.3(4).  The Defendant is of the view that the Claimant knew, or should have known, that to claim in excess of £100 for a parking charge on private lands is disallowed under the Civil Procedure Rules, the Beavis Case, the Protection of Freedom Act 2012 and Consumer Rights Act 2015, and that relief from sanctions should be refused.   Alleged contract The court should consider if there is any contract to start with and if the alleged offence is on relevant land. The consideration will inevitably lead the court to conclude that there is no contract.  Also the court should note that there is no valid contract that exists between VCS and Peel. Under the Companies Act, a contract should be signed by the directors of both companies and witnessed by two independent individuals. This alleged contract, which makes no mention of pursuing registered keepers of vehicles to court, makes its first appearance as a Witness Statement. Thus the alleged contract is null and void.  The Beavis case referred to by the claimant is about parking in a car park. The claimant is here attempting to equate that case to stopping, not parking, in a bus stop and on a road that is covered by the Road Traffic Act. The defendant submits that there can be no contract as there is no offer but there is only a prohibition. Again, it is not relevant land and VCS has absolutely no rights over it. Further, the defendant would like to point out that motorists NEVER accept any contract just by entering the land. First they must read it and understand it and then, and only then can they realise that "No stopping" is prohibitive and cannot offer a contract.   Bus stop signage The signs around the bus stop do not mention who issued the “No Stopping” signs so it could not have been issued by VCS since the IPC CoP states that their signs should include the IPC logo and that the creditor should be identified. Nothing on the signs around the bus stop that says “NO Stopping” mentions VCS or Peel Investments who are now purporting to be the land owners of a public road. As the signage should identify the creditor, since it does not, this is a breach of the CoP.   The Traffic Signs Regulations and General Directions 2016 does not prohibit stopping in a restricted bus stop or stand, it prohibits stopping in a clearway. The defendant would like to ask the court to consider if any clause of the Traffic Signs Regulations and General Directions 2016 that the claimant alleges has been violated by the defendant. There is no mention of permits on the signage. If there were, would it mean that Permit holders were allowed to stop on “No Stopping” roads? Notwithstanding what the claimant calls it, the mentioned signage is NOT a contractual clause. A “No stopping” sign is not an offer of parking terms.  Since the signage around the bus stop is prohibitive, it is as such is incapable of forming a contract. Further, the defendant would like to point out that the prohibitive sign is not actually at the bus stop but a few metres before the stand itself. There is no mention of a £100 charge for breaching the “No stopping” request, or if there is one then it is far too small to read, even for a pedestrian. As already stated, a Witness Statement between VCS and Peel Investments is not a valid document. It will need more than the Claimants feather to outweigh the case against the Defendant regardless of who was driving. There is no law of agency involved. This is not a case of employer/employee relationship. VCS cannot transfer the driver's liability to the registered keeper. There can be no comparison between a railway station and an airport. This is a totally fatuous analogy which cannot be applied to this case.  As stated in the defence, it is denied the Claimant is entitled to the recovery or any recovery at all. The nefarious parking charge notice given for a vehicle on a public road bus stop was ill advised to start with.   Conclusions:   VCS has failed to present ANY reasonable and valid cause to apply to the DVLA for the Defendants details. VCS has failed to provide ANY valid  contract with the landowners. “No stopping” is prohibitive therefore cannot form a contract the event happened on a bus stop over which VCS has no jurisdiction the signage either does not show that there was a charge of £100 for stopping, or the font size was too small for any motorist to be able to read it  the signage does not show the Creditor which fails the IPC CoP and hence the signage is not valid the WS contract does not authorise VCS to pursue motorists to Court Given all these factors it seems that VCS have breached the GDPR of the Defendant quite substantially and it would appear right that an exemplary award is made against VCS in the hope that they will drop all further cases at Doncaster airport where they are pursuing motorists on non relevant land. The Defendant wishes to bring to the attention of the court that the Claimant cites an irrelevant case of a car park and tries to apply its merits to a bus stop. That in itself invalidates the entire fallacious claim. Accordingly, this case is totally without merit. Some statements are pretty close to perjury and others are designed to mislead or misdirect. None of the analogies seem appropriate or relevant. All the false information presented as a statement of truth could have been stated using half the words and without all the repetition which appears to be trying to build a strong case where there is none at all. One particularly bad example of misdirection is in the photographs. The Clearway sign shown near the bus stop is very unclear unlike the Clearway sign two photos before it which may well include terms and conditions. The one by the bus stop is totally different.   47. Lastly I wish to bring to the attention of the court, a systematic pattern of the Claimant’s court action behaviour in several of their cases. They tend to have a VCS paralegal writing a Witness Statement, then mentioning in the last paragraph of the Witness Statement that they may be unable to attend court and subsequently the paralegals never turn up to be cross examined. In the event that Mohammed Wali is unable to attend court to be asked about his claims, then I would like to know why he is not able to attend when the hearing has been scheduled months in advance, is during working hours and as a result of covid, is online, meaning there is no travel involved. Ambreen Arshad, the other paralegal employed by VCS, does exactly the same. 
    • Hang on. don't panic!   You sent the snotty letter which has told the fleecers to put up or shut up.  So far they've haven't taken you to court.  This might change, but so far you're in the driving seat.  You don't have to deal with them any more.  It's up to them if they have the gonads to start court action or not.   Regarding DCBL, they are not representing their client in the normal way that a solicitor represents a client, because the sums of money involved are too low for that.  They are just chucked a few quid to send a couple of "threatening" letters.  There is no point in dealing with them.   If you want the original PCN send a SAR to UKPCM only.  For the SAR letter simply click on "SAR".   However, the SAR has nothing to do with the 30 days, you've already dealt with that with the snotty letter.  You need to read lots of similar threads and familiarise yourself with the legal process.  CAG is a superb free library.    
    • Hi again, so I will send a SAR to UKPC because I don't remember seeing the  NTK.  Then should I let DCBL know otherwise they will probably issue the court papers but they might hold off if i tell them about the SAR?   what do you think?  I need to do it this weekend or it will be beyond the 30 days.  Otherwise to let it run will definitely lead to a court case perhaps??   Can I get a copy of a SAR letter on here? thanks
    • 👍   One thing, write "unlawful", not "illegal".   Sorry to be pernickety, but "illegal" = "a crime".   "unlawful" = "not in accordance with the law".    They've lied to the DVLA but that's not actually a crime, it's misuse of your personal data which is a civil matter, and you can sue the idiots once your case is over for breach of GDPR, but it's not a criminal offence.
    • Just added also paragraph 11 stating " Notwithstanding the above point, if perchance Schedule 4 of the Protection of Freedoms act 2012 were to apply, VCS should prove that they complied with the requirements of section 7 stating, “(1)A notice which is to be relied on as a notice to driver for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met. The notice must — (a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;” Without such proof the court must of necessity throw out this case forthwith."
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LORD ROOFING AND GROUNDS WORKS LTD Refusing to Repair Poorly Laid Driveway and Using Intimidation to Enforce Payment


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I think it may be reasonable to allow them to have a go and you certainly don't want to be in a position where you could be criticised during the court process for not having attempted to mitigate your losses.

However I think that it would be worth applying conditions.

If you are agreeable, then I think that I would reply to them and tell them that you would be prepared to explore the possibility of remedial action by them but only if they make a point by point commentary on the report which has already been prepared for you and which they have been sent.
Secondly, that the remedial work which they then proposed would be set out in writing.
Thirdly that the quality of any remedial work would then be subject to an independent assessment. If the independent assessment judge that the remedial work was still of poor quality then they would pay the bill for the assessment. If the remedial work turned out to be of a satisfactory standard then you would pick up the bill for the assessment.

That seems to me to be a reasonable thing to propose. Let me know what you think.

Let me know if you are happy with that suggestion or whether you want to reject it completely or whether you want to make some modifications.

I share your misgivings about entrusting any further work to them, but I think that you are under an obligation to give them at least one attempt to address the problems – but I think subject to the conditions above which I don't think are unreasonable.

 

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Also, what do you have to say about their assertion that they have tried to contact your many occasions?

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I've been very agreeable all the way to this point, and I have started to think they have taken advantage of that fact.

 

Without going into massive amounts of detail, my reasons for not wanting to give them further opportunities to rectify the work are:

 

1. Delayed multiple times from outset with poor commuication and threats that I could not pull out (despite them breaching their own contract for start date)

2. Repair attempt 11th June (not all issues addressed)

3. Workers attended 5th June (Issues with work not addressed)

4. 28th June Matthew (director) attended and agreed work unacceptable-

5. 15th and 16th July- workers attended to rectify issues and actually made front drive worse by making unnaceptable paving cuts (raised in engineers report). Rear patio issues addressed (not all, and most serious issues remain)

 

Communication wise, my son has had an amicable discussion with the workers and director when attending my property. I have full CCTV front and rear and have all evidence including audio and video recordings of all interactions. I have not refused to communicate with them. I have refused to communicate with them via telephone as I said that I wanted to avoid misunderstandings etc. and I was also intimidated by receiving a threatening and aggressive voicemail, which again I have a copy of.

 

I understand the point about being reasonable and fair. I think I have evidenced that I have thus far. They have had ample opportunities and stonewalled me and sent debt collectors after me. Now I've provided evidence of their poor work, I feel they are realising they are looking at a large loss, plus legal costs they probably are unwilling to pay.

 

I would not be happy to pay for their independent assessment (they have not paid for mine). The majority of the issues that were raised in the engineer's report, I had already highlighted to them (such as the cuts of the bricks not being in line with manufacturer's guidelines- if you recall I had already contacted the manufacturer Tobermore for additional information)

 

If you feel I'm completely missing the mark here, then I'm happy to be guided by you, however the Consumer Rights Act only provides them with limited opportunities to put work right. Surely I cannot be expected to just sit here for months and just keep letting them try and try again, and only now that they face the prospect of potentially losing at court. I've been reasonable, polite and accommodating from the outset, and I have written, video and audio evidence of all of this.

 

 

 

 

 

Edited by Chipsticks
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What day is the expiry of the 21 day deadline?

 

Also were the visits and repair attempts which you have referred to above made in respect of the rear patio or the front patio?

Don't forget that we are proposing to sue in respect of the rear patio and so therefore any timeline of events must apply to the work or remedial attempts on that contract..

 

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8th October 2021 is 21 days after the claim letter

 

They attempted to repair the rear patio issues on at least 2 occasions, did not address or comment on all the points I made, and have arrogantly dismissed all of my concerns, even when backed up with evidence (e.g British standard pre engineer report)

 

I dont feel like we really have a plan forward here. I feel that I am well within my right to refuse further repairs etc. They don't ask my opinion on anything. They inform me when they will be doing xyz, without caring to even check if I'm available or its convenient. I cannot see what allowing them to come and repair their work now will achieve. 

 

The director has informed me he will be attending my property again on Monday in his last email

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Just wait while I'm going to propose another letter.

By the way, you say that one of their own employees admitted that the work was substandard. Were they referring to the rear patio?

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Have a look at this suggestion

 

Quote

Dear XXX

Contract number XXX

Thank you for your letter.

For the avoidance of doubt:

the work was delayed multiple times by yourselves from the outset with poor communication and threats that I could not pull out of the contract (despite yourselves breaching your own contract start date)

Some of your work crew attended my property on the 5th June . They did not address all the issues.

You carried out an attempted repair 11th June . This attempt also did not address all the issues.

On 28th June Matthew your own director attended my property and agreed that the standard of the work was unacceptable.

On the 15th and 16th July some of your employees attended to rectify issues and actually made front drive worse by making unacceptable paving cuts.  This was notice and remarked upon in the inspection report which I have supplied to you.

Some of the rear patio issues were addressed but several remained outstanding and indeed the most serious issues have still not been dealt with.


Communication wise, there has been communication and I have tried to engage. In fact my son has had an amicable discussion with the workers and director when they attended my property.
I have full CCTV front and rear and have all evidence including audio and video recordings of all interactions. I have not refused to communicate with you.

 

I did eventually refuse to communicate with you via telephone as it was clear that our relationship was deteriorating to a point where things needed to be done in writing. I explained at the time that I wanted to avoid misunderstandings etc. and I was also intimidated by receiving a threatening and aggressive voicemail, which again I have a copy of.


I see from your letter that you feel that you want a further opportunity to address the outstanding issues.

I am prepared to explore this possibility with you but it will have to be on conditions.
First of all, I have supplied you with a detailed written report relating to defects with both contracts – the front patio contract and also the rear patio contract.
I would like you to address the report in writing point by point.
I would like a written proposal of the work that you intend to undertake to address the issues identified in the report together with a definite timescale for starting and completing the work.
Your written proposal will be submitted to the independent inspector and the work will be subject to supervision by that person.
Once we receive confirmation that the defects have all been properly addressed and that the work is now up to a proper standard, the agreed contract price will be paid over to you within seven days.

Any fees incurred as a result of the independent supervision of the work to be borne by you. This is entirely reasonable given that it is your company which is responsible for the defective work.

I'm prepared to suspend the time limit identified in my letter of claim – i.e. eighth of October 2021 if you will write to me agreeing to these conditions and presenting your timetable for going forward.

If your proposals are not acceptable or if you will not agree to the above conditions then the letter of claim are still in force and I shall be issuing proceedings on 9 October.

Yours sincerely

 

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I've made changes to your suggested email. I don't agree entirely with your approach. I feel like this is too weak. Bold are my changes. I'm going to send this tomorrow unless there are some serious issues/concerns around it. Contractually and legally I feel I'm on 100% solid ground. They have breached the CRA and their own contract and I don't feel I have any obligation to allow them to come back to try again. I'm quite sick of this whole situation and want it sorted asap.

 

 

Dear XXX

 

Contract number XXX

 

Thank you for your letter.

 

For the avoidance of doubt:

 

·         The work was delayed multiple times by yourselves from the outset with poor communication and threats that I could not pull out of the contract (despite yourselves breaching your own contract start date)

 

·         Some of your work crew attended my property on the 5th June. They did not address all the issues.

 

·         You carried out an attempted repair 11th June. This attempt also did not address all the issues.

 

·         On 28th June Matthew Moore attended my property and agreed that the standard of the work was unacceptable.

 

·         On the 15th and 16th July some of your employees attended to rectify issues and actually made front drive worse by making unacceptable paving cuts.  This was notice and remarked upon in the inspection report which I have supplied to you.

 

·         Some of the rear patio issues were addressed but several remained outstanding and indeed the most serious issues have still not been dealt with.

 

 

Communication wise, there has been communication and I have tried to engage. In fact my son has had an amicable discussion with the workers and director when they attended my property.

I did eventually refuse to communicate with you via telephone as it was clear that our relationship was deteriorating to a point where things needed to be done in writing. I explained at the time that I wanted to avoid misunderstandings etc. and I was also intimidated by receiving a threatening and aggressive voicemail, which again I have a copy of.

I see from your letter that you feel that you want a further opportunity to address the outstanding issues.

I am not prepared to allow you to have further opportunities to rectify the work. My reasons are the following

 

1.       You have not undertaken the work with what could be described in a timely manner. In breach of the contract we both signed

 

2.       You have not undertaken the work with reasonable care and skill, as evidenced by the multiple failed attempts and subsequent engineer’s report which highlighted serious defects

 

3.       You commenced debt collection proceedings against me, in an attempt to bypass due process and the County Court.

 

4.       As per the signed contract, there is an obligation to enter mediation, which you have ignored and refused to engage with

 

5.       You have been provided multiple opportunities to make good on your contractual obligations and you have failed to do so. Therefore I no longer have faith in your company or your tradespeople.

 

 

 

All of the above leads me to the point where I no longer have faith in your ability to fulfil your contractual obligations. Therefore I have no choice but to request payment from you to make good your defective workmanship

 

If you are not able to provide me with payment of the amount detailed in my previous email, then the letter of claim is still in force and I shall be issuing proceedings on 9 October.

Yours sincerely,

 

 

Edited by Chipsticks
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Regarding your point (3), involving debt collectors is a normal procedure and also no big deal for the person being pursued as debt collectors have no power to do anything.

 

It's the trying to make you bankrupt which is serious and as you rightly say "an attempt to bypass due process and the County Court".

 

You need to change this bit - obviously if you & BF decide to send your draft above.

We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

 Have we helped you ...?         Please Donate button to the Consumer Action Group

 

If you want advice on your thread please PM me a link to your thread

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Point 3 refers to the service of the Stat Demand I assume in which case its correct.

 

3.       You commenced debt collection proceedings against me by way of service of a Statutory Demand, in an attempt to bypass due process and the County Court.

 

Andy

We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

 Have we helped you ...?         Please Donate button to the Consumer Action Group The National Consumer Service

 

If you want advice on your Topic please PM me a link to your thread

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I would strenuously suggest that you don't send your version.

Stand by for an explanation of why not in the next couple of hours

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I think that the letter you are proposing is not a good idea.

You are presently occupying the moral high ground and not only do you want to keep the moral high ground but also you want to strengthen that moral position.

Your letter is heading directly into confrontation and without giving any opportunities for them to reconsider their position. I know that they have had lots of opportunities already, but there is no problem with going an extra mile.

You say that the letter I have suggested is "weak" – but actually you have misunderstood the letter.

Your letter imposes extremely onerous conditions and yet they are not at all unreasonable because basically you are simply asking that the whole thing be done and supervised by an independent third party.
If they are confident about their workmanship and any proposed remedial action then they would be happy to do this. If they are not confident about it then they will object.
Frankly I think that they won't accept the conditions and in that case you will be free to go ahead and issue of proceedings but you will be able to show the court that you have bent over backwards to accommodate them.

There is no court at all which would criticise you for requiring supervision by an independent third party. Any judge would be puzzled as to why these builders refuse to accept a very reasonable condition which really is an attempt to mediate the situation, to assure that there is transparency in all dealings and to put an end to the dispute once and for all.

Your ultimate goal is to get your patio sorted out to a proper professional standard. If they agreed to third-party supervision then this is what will happen – and if it doesn't, then you will have 1/3 party involved who will give their own professional opinion that the workers not been completed either on time or to a reasonable standard and this will give you enormous power if you then eventually go to litigate against them.

I'm afraid that your proposal – which is to now refuse any opportunity to remedy the situation outside the court process and to reject the idea of independent supervision means that you are starting to deal with them in the same way that they deal with you – head-on and without any subtle diplomacy.

Don't forget that at the end of the day, once the matter settled, you are going to have to find somebody else to address all the problems and to go through all that hassle of having to monitor the standards of some other building company – and without the benefit of third-party supervision.

If Lords agree to your conditions (unlikely) then it means that you will be in a position where you have the work completed – subject to independent third-party supervision with no skin in the game and you can then be confident that it is going to be done to a satisfactory standard.

If you simply sue Lords, then you are still left with a defective patio and when you put the work out to another firm of builders, there will be no possibility of independent supervision.

By the way I'm amending the letter above to include a provision that in view of the defective workmanship which has been caused by them, they will pay the cost of the supervision.

Frankly there is not a hope in hell that they will accept these conditions – even though they are extremely reasonable. That will leave you in a position where you can still proceed and issue your claim at the end of 21 days but you will have acquired a very substantial moral asset in your case against them.

You need to look at the broader picture. It's really quite delicious.

Edited by BankFodder
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Thanks for your explanation. That makes much more sense now. 

 

I've been doing exactly what you were saying since I realised a dispute was likely to occur. I've always been civil and impeccable in my behaviour and approach.

 

The company has destroyed their reputation and image through their conduct with me which has put me in a good position thus far.

 

I was just concerned that you didn't understand the full picture and were telling me to keep giving them more attempts because you were trying to help me solve this dispute.

 

I'll send that email to them tonight and update you with their response.

 

I've realised a long time back that small claim court is won by not just those who are in the right, but those who are reasonable, fair and calculated in their approach.

 

Thanks

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I've received no response from Lord.

 

I've also received a letter in the post from the court stating that there will be a hearing on 12th October to set aside this statutory demand. 

 

Why is this going to a hearing? I find it  ridiculous that I have to do so much work to make this malicious order go away.

 

What is going to happen here? What do I need to do? Is it possible that I can lose this?

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Did you send the email?

I think it is scarcely possible that you will lose this but I am calling out to @Andyorch for an additional view.

It's very clear now that there are issues to be solved. Assemble all the most recent correspondence that you had the first email you sent them and this most recent email.
Evidence it will be useful to you will include the fact that their own director admitted that the work was not satisfactory standard, that they have in fact made an offer to you although they had mistakenly believe that they were trying to deal with the whole contract – but that itself shows that there is an issue.
The most recent email shows that you are trying to deal with it and that you are giving them a further chance although on certain conditions.

All of this evidence doesn't directly support a set aside but what it does do is it shows that there are issues and there are good reasons why the money is in dispute and it also supports your position that all they are trying to do is shortcut the process and to avoid independent and transparent scrutiny of the issues.
Of course your independent report will also show the judge that there are important issues and that they are simply trying to avoid dealing with those and trying to ride roughshod over your consumer rights by moving straight to a statutory demand for bankruptcy.

I suggest that you start assembling the documents that you have. To assist you please have a look at the advice which we have given in respect of preparing your court bundle. This will be a very useful exercise anyway because you will need it when eventually go to court on this at the expiry of your deadline.
Frankly I don't think you have much to worry about and if and when the judge finds in your favour, I suggest that you ask a judge for costs on the litigant in person scale which I think is £19 per hour.

Don't make it a money grab – simply explain to the judge that you've taken say, three hours, to read up and to prepare. You will be asking for a very modest figure but the important thing is the message which it sends.
 

Wait for input from my site team colleague @Andyorch who no doubt will come along with more technical detail.

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Thanks for your quick response.

 

I've sent the email which we were discussing yesterday.

 

I've made the money claim online account and started compiling all the evidence.

 

The court sent me a copy of everything which I submitted to them. The defendant to my application is Lord. Will they be responsible for responding not the debt collection agency? If so I would imagine they will represent themselves or incur legal costs.

 

The process is quite opaque. Can I submit more evidence? The date of 12th of October is very close. As its all over telephone am I right thinking it will be a relatively short fact finding exercise from the judge? 

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Wait for input from my site team colleague but in terms of the litigation, if there is no response from them by the expiry of her deadline then you must click off the claim promptly at the expiry of the deadline so that you can tell the court that a claim has been issued and you can give the court the claim number.

In other words you will tell the court that rather than the the short cutting process which is preferred by  the builders, you are attempting to bring the matter to independent scrutiny in the most transparent way possible.

You will also be able to point out to the court that if a statutory demand for bankruptcy was approved that this itself would pre-empt the decision of a court which was able to hear the evidence and to form a proper informed judgement.

 

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Points to emphasise with the court:

  • There is no problem about money. The entire issue is about the quality of the work which has been carried out.
  • The shabby workmanship has been confirmed by an independent survey for which you have paid £355.
  • The survey report has been provided to the builders and yet they have so far ignored it and declined to comment.
  • There were four contracts in all. Two of them were completed to a satisfactory standard and the price of those contracts was paid without any difficulty.
  • The dispute relates simply to two remaining contracts which are the subject of the independent report.
  • From the outset of this dispute instead of trying to hold a dialogue her adopted a barracking and bullying approach – the same approach which is being used by their debt collection agency.
  • You have received threats that they will trespass onto your property and remove your driveway.
  • They are completely aware that there is a legitimate dispute and in fact one of the directors admitted that the work was not up to standard.
  • You have embarked on the pre-action protocol as a prelude to legal action.
  • Legal action in respect of one of the contract has now been issued.
  • You are still hoping that the builders will deal with the matter without the need to take the litigation into the court room.
  • The building company have attempted to avoid the independent scrutiny and transparency of the court process.
  • The proper procedure for addressing this dispute would have been to start a legal action against you.
  • The building company have decided not to use a transparent process and have the evidence weighed by a judge.
  • The building company has preferred to shortcut the process and to use the strong-arm tactic of trying to have you declared bankrupt.
  • This is clearly an abuse of the process.
  • If there were serious questions about your intention to avoid payment, it would have been open for the building company to issue proceedings and eventually to have required that you would pay the disputed some into court.
  • You would have complied with such an order without any difficulty – but they have chosen not to litigate.
  • Now that litigation is underway, you believe that the best course of action is to allow the litigation to take its course and for the building company either to come to the table or else for the matter to be decided by a court after having weighed all the evidence.


I'm going to say that if you had been more responsive in the way that you had been dealing with this so far – and as we have been encouraging you to do throughout this process, we would be well advanced by now and there wouldn't be this furious last moment dash to prevent a bankruptcy procedure.

I hope that in view of what is happening you will now re-prioritise this matter.

 

I don't know what your temperament is like but when the hearing starts, you must remain very level and gentle in your approach and your tone of voice. Simply make your points. Listen very carefully to what is being said to you. While the judge is speaking, you should make notes so that you don't forget to refer to a particular point if something important is said. In the heat of the moment and in the stress, it is very easy to hear the judge say something to which you want to respond and then as the judge continues, you forget to say it.

Once again, I expect that @Andyorch will be along at some point although he may be away for the weekend.





 

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They may try to say that you haven't given them an opportunity to remedy the situation.

You are now in a position to say that that is untrue and that you have invited them to address all the defects but subject to a written schedule and subject to supervision.
Assuming that you will have actually issued the proceedings, you will then be able to say to the court that despite this approach, the defendants have declined and it is for this reason that you have been obliged to issue proceedings.
You should emphasise that you have only brought the matter into the court process as a last resort – whereas by contrast, the building company have attempted to use a bankruptcy procedure as a first resort.

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Here is an updated draft of the proposed particulars of claim.
Please can you start dealing with this. Fill in the figures and also let me have some comments.

 

Quote

The defendant builders entered into a contract on their own standard terms and dated XXX with the claimant to carry out works to a rear patio. The contract was carried out but in a manner which by the defendant's own admission was in a substandard manner. The work needs substantial remedial work to address the defects. The defendant has been provided with a full independent assessment and quotation and is fully aware. The defendant has been invited to address the defects under supervision. The defendant has declined to cooperate and has employed tactics which have undermined the claimant's confidence in the defendant company so that the claimant no longer trusts the defendant with the work.
Contractual price: £XXX, deposit paid £XXX, cost of remedial works £XXX, cost of survey £XXX

 

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Why is this going to a hearing? I find it  ridiculous that I have to do so much work to make this malicious order go away.

 

What is going to happen here? What do I need to do? Is it possible that I can lose this?

 

Its quite normal for hearing to be called in set a side application on Statutory Demands. A date will be set for the hearing ( 12th October) which you must attend. If you don't go to the hearing the court will dismiss your application to have the statutory demand set aside.

Take a copy of your application and all the documents you rely upon with regards to the dispute as to why this kind of Debt Collection is not suitable in this instance and that the debt in question is now subject to Litigation due to its complexity and nature of dispute. (also take a copy of your claim form and particulars)

 

You may have to pay court costs if your application is dismissed.

 

Andy

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I wouldn't emphasize "complexity" c too much.

That is a ground for moving it to the fast track even if it is below the £10,000 threshold

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Complexity with regards to issuing a Stat Demand...which is not suitable for this kind of debt collection action. Stat Demand's are issued for black and white undisputable debts.

 

 

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We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

 Have we helped you ...?         Please Donate button to the Consumer Action Group The National Consumer Service

 

If you want advice on your Topic please PM me a link to your thread

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Quote

 

The defendant builders entered into a contract on their own standard terms and dated 12/03/2021 (Invoice number 1554) with the claimant to carry out works to a rear patio.

 

The contract was carried out but in a manner which by the defendant's own admission was in a substandard manner. The work needs substantial remedial work to address the defects. The defendant has been provided with a full independent assessment and quotation and is fully aware. The defendant has been invited to address the defects under supervision.

 

The defendant has declined to cooperate and has employed tactics which have undermined the claimant's confidence in the defendant company so that the claimant no longer trusts the defendant with the work.


Contractual price: £2650, deposit paid £530, cost of remedial works £2550, cost of survey £355

 

 

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