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    • The new Credit 500, an index of the most influential people in consumer and commercial credit in 2022, has been finalisedView the full article
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    • I unexpectedly had a couple of hours free this afternoon and thought I would have a bash at helping simeon drafting his counterclaim.  Everybody please feel free to comment on and - hopefully improve it!  (In particular I am not sure if I've got the terminology correct vis a vis counterclaimant and defendant - so that may need correcting).   I am aware that Andyorch and BankFodder often stress the importance of keeping POCs to the bare minimum so as not to give away your case too much.  Whether I've given too much detail - or not enough - here, I don't know.  As I say, it's free to be pulled apart, but simeon seems to have nothing else.   Paras 1 - 16 (in black typeface) are simply a precis based on what has gone before and I've used them to put the counterclaim in context. Paras 17 - 19 (in red typeface) are simply my attempt to provide a basis for simeon's counterclaim.   At the end of the day this is simeon's documant - nobody else's.  simeon has to satisfy himself that it is both accurate and true, and also says what he wants it to say.  He will also have to order and sort out any attachments.  As I said earlier, I'm NOT giving legal advice!   Here goes... ===================================================================================================== Counterclaim   1.      The defendant agreed to undertake building work (Project 1) at the counterclaimant’s property in relation to 3 specific areas of work for an agreed price of £4300.  The work was:   a. To underpin the bay window at the property, b. To replace and repair a previously removed chimney breast and, c. To install a new beam to the patio door.     2.      It was agreed that Project 1 was to be carried out under the instructions of a structural engineer engaged by the counterclaimant and that the defendant’s work would be as a result of instructions received following the structural engineer's assessment of the property.   3.      Between June and July in 2020 the counterclaimant provided the defendant with a full copy of the structural engineer's report which detailed instructions to the defendant for the works to be carried out.   4.      It was agreed between the parties that the works would commence on 13 August 2020.     5.      It was agreed between the parties that payments for Project 1 would be made in three instalments. The first payment would be made at the start of the defendant's work. The second payment would be paid at the halfway point of the defendant's work. The final payment would be made on completion of the total works.   6.      The defendant commenced work on 13 August 2020 and the first instalment due was paid.     7.      On 24 August 2020 the defendant asked the counterclaimant to arrange an inspection of his work by the Building Control Inspector.  The defendant also stated that Project 1 was approaching mid-way and the counterclaimant paid the second instalment due.   8.      The Building Inspector arrived to inspect the defendant’s work but the defendant was absent.  The inspector was obviously very displeased by the standard of the defendant's work.  The inspector spoke to the defendant by telephone, asking him why he was absent and interrogating him about the work he had done.  The inspector then gave him some instructions over the telephone and also left a list of instructions with the counterclaimant to be passed on to the builder.  The building inspector then said he would be getting in touch with the counterclaimant’s structural engineer with his findings and the counterclaimant should hear from the engineer soon.   9.      The counterclaimant passed on the Building Inspector’s instructions to the defendant who agreed to follow them.   10.  The structural engineer visited and recommended piling to complete the underpinning for Project 1.  The defendant explained that he could not undertake this work. The structural engineer then suggested an alternative company to the counterclaimant to do the necessary work and this company was engaged by the counterclaimant to complete the necessary piling at an additional cost to the counterclaimant of £3300. (See receipt at Attachment1).     11.  The defendant asked if the counterclaimant needed any more work to be done and, despite the problems encountered on Project1, the counterclaimant agreed on 7 September 2020 to have more work done (Project 2) at an agreed price of £2580 and on similar payment terms to Project 1.     12.  As work commenced on Project 2 and was continued on the remaining work for Project 1, the counterclaimant had occasion to make several complaints to the defendant regarding the standard of his work.   13.   Barely a week after starting on Project 2, the defendant demanded payment for that work.  After a period of negotiation the counterclaimant agreed to pay him £2000 on 18 August 2020.    14.  The counterclaimant subsequently paid the defendant  £1500 in cash.  Both parties agreed that this left a balance outstanding on Project 2 of £1080.     15.  It later came to the counterclaimant’s attention that the defendant had removed material (including a steel beam) from the counterclaimant’s property that the counterclaimant suspects either belonged to him or had been paid for by him in connection with Project 1.  When challenged the defendant admitted he had done this.  The counterclaimant has included the value of this material in his counterclaim detailed below.   16.    On 21 September 2020 the counterclaimant highlighted and sent a snagging list to the defendant (Attachment 2).  Over a month later the defendant sent an employee to attend to this work.  It was not carried out satisfactorily and resulted in an updated snagging list being sent to the claimant (Attachment 3).  All of this snagging work remains undone by the defendant.     17.  Apart from the outstanding snagging work referred to in para 16 above, the defendant also left other work from Projects 1 and 2 uncompleted.  That work which was not completed is listed at Attachment 4.   18.  During the course of carrying out work on Projects 1 and 2 the defendant also negligently caused substantial damage to the counterclaimant’s property (as itemised in Attachment 5) by not executing the work with the skill expected of a reasonable tradesman.   19.  The counterclaimant seeks an order from the court directing the defendant to pay to the counterclaimant the sum of £nnnnnnn {Simeon - put in the actual total amount here} in respect of:   (a)   the cost of the piling referred to in para 10 above which the defendant could not undertake and another contractor had to be paid to complete; (b)   the cost of completing work the defendant had left undone from Projects 1 and 2; (c)   the cost of remedial work to put right the damage negligently caused by the defendant and referred to in para 18 above; and (d)    the cost of the steel beam referred to in para 15 above.   A receipt in respect of item (a) - see Attachment 1 - and two priced quotes in respect of items (b) and (c) - see Attachments 6 and 7 - are attached in support of this counterclaim.     =================================================================================================================   What I'm not entirely clear about are two points.   First, it's not 100% clear to me whether simeon can properly claim the £3300 in paras 10 and 19(a) or not.  What I mean is, simeon is arguing that this work required by his structural engineer was always within the agreed scope of Project 1.  But it's not clear to me if it was within scope or whether it was entirely new and unforeseen work.  As I see it simeon can only counterclaim this amount from the builder if it had already been incuded in Project 1.   Second, the basis of the counterclaim still seems extraordinarily thin to me.  Is it sufficient at this stage just to allege that the builder caused any damage negligently and is therefore liable to pay to put it right.   That's it from me I think...    
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Auto 100, Nottingham - Car purchased in July - Annual service discovers crack in head


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Thank you. What is the expected mileage of this vehicle?

I think one might need to take into consideration that it has 36,000 miles on the clock and that you have enjoyed a further 2500 miles which means that it now has about 38,500 miles on the clock – is this correct?

I think then you need to consider that mileage – 38,500 as a percentage of the expected life of the engine and that tells you something about the proportion of any settlement which you might reasonably expect

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Correct.

 

Engine heads are not considered consumable items - I don't think i should be looking for a deduction in cost due to wear and tear - especially since it is not a wear fault.? Life of a vehicle is also subjective. Saying that, its a well known make for reliability, and I know that other people own models from them have gone once round the clock. and still going strong so whats the yard stick?

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It's not a wear and tear issue. It's really about how much value you had out of it before having to fork out big bucks to get an issue sorted out.

Once round the clock means how much?

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more than 999 999 miles. Not on this model mind, but I have always owed Toyotas/Lexus's and never had any mechanical issues with them. My other car is a different model with the same engine with 50k miles, and I have had so much as an advisory on it. It's a 2011 car.

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That's fine – although I'm just help you do a few calculations to give them a bit of breathing space in case they happen to make an interesting offer.

In negotiations, it's always helpful to have something hidden in your left hand so that you are able to propose something which allows the other side to save some Face – instead of feeling that they have simply given in without a fight.

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Thanks, and I know you are right - I just spend all my working life negotiating/fighting/being assertive - it's not something I want to deal with in my personal time. While I may seem to come across as not being as hard as I can be ont he matter or meek, I can turn "work" mode on, but I want an easy life and path of least resistance. As if I turn up to level 11 they get their backs up and get more difficult, and then we are in March in a court room.

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Will post what I sent and reply when at a computer, but quick update via phone.

 

they replied back to my email re-asserting my rights and setting of a deadline before I have to pay for it myself quoting the much banded “we have 8 weeks” story and saying if I pay for it myself they won’t be interested. 
 

is it worth warning them I am prepared to go to court over this or to just do it? I probably have to at least send a letter before action?

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Simply giving them a warning that you are prepared to go to court is meaningless and they will consider that that is a sign of weakness.

A letter of claim and then issue the proceedings is the only way.

However, don't imagine that that will move them either. There won't be any quick fix on this and you can expect this to last at least a couple of months or so – and maybe longer.

This again I'm going to say that your best interests will be, if you can afford it, to make sure that you have got to independent diagnosis of the vehicle and quotes for the work – and then proceed with the work having given them five days to consider the quotes and to raise objections.

Then you can sue for the cost of the work plus interest. It will be much easier for you to bring the action, more profitable and it will cause the finance company much greater problem because they will know that they aren't holding the car over you. And of course the car will be fixed and to that extent you can move on and start driving it.

I'm afraid that suing them without having had the work carried out is simply going to cause you delays, inconvenience – I can imagine that the garage which is holding the car at some point will start to object and will want storage charges. Although, of course, you can claim the storage charges from the finance company, it simply adds to the complications.

 

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I have a second quote, although this to me is still adding more unnecessary overhead/time than needed as the repair on offer from the main dealer is unbeatable- as the quote shows. They also have a monopoly on the parts- as no matter who fixes it, they will need to get the parts from Lexus. The fault is also a crack in some metal - it is not complicated.

 

I am at the dealership now awaiting the finance companies inspector. Depending on how that goes I’ll get another done. I have already had an initial report that backs up Lexus but they obviously can’t officially sign off on it without seeing the car which is the next step.

 

I am confused by one thing thing though, I thought the rights exist to protect the customer and prevent me having to fork out the fix, then chase it. If that’s the case, there is no point on the right to repair/reject clause and everyone should just go straight to good old litigation and sort it out at the county court?

 

 

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The rights certainly exist – but of course they depend on everybody recognising their rights and their obligations and not causing any problems.

As soon as you get people deciding that maybe they can wriggle out of their obligations – then you have to start getting assertive about it and then take County Court action.
Personally I think the right to repair/reject clause is pretty paperthin and it would be far more useful if the consumer rights act also said that where a dealer avoided their obligations, they would then be subject to a penalty – such as having to pay costs in a court action if they lost.

As it is, that part of the consumer rights act lacks teeth
 

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