Being sued by builder - filed a counterclaim

[simeon1964]

Still not heard from Court, but Came in today from bailiff:

 

"Our Enforcement Agent attended  66 xxxxxxxx Road,  on Tuesday 07 December 2021 at 10:32. The residential semi detached property is in fair condition. No contact was made, a letter was left. Agent's comments: Spoke to Mr.EE,  he mentioned his Solicitor is dealing with this case"

[dx100uk]

Doubt if you'll hear from any court on a fake or never submitted n244.

 

Dx

[FTMDave]

What is the name of the other party's "solicitors"? 

 

I've got a good idea you're being led up the garden path by some mate of the other party.

 

Of course solicitors can be crooks like anyone can, but calling using the correct legal procedure "harassment" and lying about submitting a set-aside application methinks surely is a bridge too far for a real firm of solicitors.

 

 

[dx100uk]

On 22/11/2021 at 05:34, simeon1964 said:

Try again.

 

N244 GAG Sep2021.pdf 356.48 kB · 8 downloads

yep everything redacted

you only need to hide YOUR details.

 

 

[simeon1964]

Wonder if I Can effect the third party order while the enforcement still in place. If so will i be able to include HCE cost and my former solicitor's cost on top of the judgement order.

[simeon1964]

And finally came in the post this morning: 

 

GAG dacted courtD.pdf

[Ethel Street]

So the court didn't agree to the stay the enforcement until 17th December.....

[simeon1964]

I got this this morning. Do I have halt the enforcement?

[FTMDave]

I need time to read through everything carefully.  However it seems that -

 

1.  The builder really has gone to solicitors.

 

2.  A set aside application has really been made.

 

3.  There will be a set aside hearing but the date isn't fixed yet.

 

4.  Enforcement is suspended.

 

This begs the question of what your useless solicitor was doing for half of July, all of August, and most of September when enforcement could have been done.

[Ethel Street]

1 hour ago, simeon1964 said:

I got this this morning. Do I have halt the enforcement?

 

Yes, the court order stamped/dated 17th December says you must halt enforcement. 

[simeon1964]

But what does this statement found on google mean ? "The term “stay of execution” is a point in time in the enforcement of the Court's Order which stops the enforcement process. ... What is often misunderstood by people making an application for a stay of execution is that the application for a stay is not enough to stop the enforcement of a judgment or order."

[dx100uk]

simply tell your hceo to hold on further action as it seems a set aside has been made.?

 

[Ethel Street]

2 hours ago, simeon1964 said:

But what does this statement found on google mean ? "The term “stay of execution” is a point in time in the enforcement of the Court's Order which stops the enforcement process. ... What is often misunderstood by people making an application for a stay of execution is that the application for a stay is not enough to stop the enforcement of a judgment or order."

 

 

It means what's been said previously. An application for a 'stay of execution' doesn't in itself automatically halt the execution of enforcement. The court has to agree to the request for a stay of execution and issue a court order requiring the enforcement action to be stayed. That is what has now happened in the court order stamped 17th December.  The court has ordered you to "stay the execution" of enforcement until a full set aside hearing takes place.

[simeon1964]

Thanks been done. Written to HCEo  to put hold on further action

[FTMDave]

I know this is not the result you wanted, but finally, finally things are clear.

 

1.  There will be a set aside hearing.

2.  The builder is represented by solicitors.

3-  You are representing yourself (with our help).

4.  Enforcement is stayed.

 

Your next step is to prepare a Witness Statement to say why you oppose the set aside application.  If the builder doesn't understand simple instructions from the court set out in plain English it begs the question of why he brought the claim, and if he entrusted the answering of court papers to an idiot it is his own fault!  Even his own solicitor admits that not getting off his backside to do what the court ordered was a "serious breach".

 

 

[simeon1964]

I attach both claimant PC and defence counterclaim for help with WS. hearing set for 10Jan.Thanks guys

ClaimantPC and DandC.pdf

[simeon1964]

Help on WS CAG.pdf

[FTMDave]

You've gone into an immense amount of detail which makes it difficult for someone who doesn't know the case to understand what has gone on.  But that's not the most important point.

 

In the upcoming hearing the judge will not decide who is right and who is wrong in the dispute.  The hearing will be simply to decide if judgement should be set aside and a rematch between you two ordered.  So that's what you need to concentrate on, with arguments such as

   - it was the builder who decided to start litigation

   - it's common sense that if you apply for a passport or a driving licence for example, that you read the notes that accompany the application forms.  The notes for MCOL and on government web pages concerning small claims are written in plain English and are much easier to understand than notes for a passport of driving licence application

   - court instructions were written in clear, simple English and if the builder ignored them it was his own fault

   - the builder's solicitor admits ignoring the court instructions was a "serious breach"

   - the other party having a solicitor has got nothing to do with ignoring clear court instructions (one of the builder's solicitor's silly excuses)

   - handing control of his case over to a third party and not checking what was going on was the builder's own fault and your time and the time of the court should not be taken up due to his negligence

   - a set aside application should be prompt, his was not prompt, in fact he knew judgement had gone against him but as usual ignored court instructions

   - he only became interested in a set aside once enforcement action had begun

   - he admitted the debt and offered to pay it off at £100 a week during negotiations with your former solicitor

   - etc.

[simeon1964]

What about the precedencies/authorities the Claimant solicitor was siting?

Do i need to reference to support any claim e.g exhibit...so so so at this stage.

The order talks about bundle, skeleton argument, authorities, how does this affect me as I am lost here?

[FTMDave]

You ask for a template but we don't have one - every case is different.

 

Write a draft based on the points I've made above, which we can then tweak.  Don't worry about the builder's solicitor's legalese for the moment, we can deal with that later.

 

I've asked experienced Site Team members who know a lot more than me about set aside applications to look in.

[simeon1964]

1.     I ….. the defendant in this proceeding I live at ……….Street Manchester I am the defendant in  this case. I make this statement in support of my defence and counterclaim brought by the claimant and in support of  the court Judgement order of the 14/07/2021.  This statement is true to the best of my knowledge and belief.

 

2.       That it was claimant who decided to start the litigation.

 

3.       That it is common sense that if you apply for a passport or a driving licence for example, that you read the notes that accompany the application forms. The notes for MCOL and on government website pages concerning small claims are written in plain English and are more easier to understand than notes for a passport or driving licence application.

 

4.       That the court instructions were written in clear, simple English and if the claimant ignored them it was his own fault.

 

5.       That the Builders solicitor’s admits ignoring the court instructions was a “serious breach.”

 

6.       That the defendant having a solicitor has nothing to do with ignoring clear court instructions. ?? assertion made by claimant’s solicitor. ?? (court order only dated Dec.17..?)

 

7.       That the Claimant handling control of his case over to a third party and not checking what was going on was the builders' own fault and the defendant time and the time of the court should not be taken up due to his negligence.

 

8.       That a set aside application should be concerning and prompt, his was not prompt, in fact he knew judgement had gone against him but as usual ignored court instructions.

 

9.       That the claimant only became interested in a set aside once enforcement action had begun.

 

10.    That the claimant admitted the debt and offered to pay it off at a £100.00 a week during negotiation with defendant former lawyer.. should attach exh????

 

 

     I  believe that the facts stated in this witness statement are true.

 

------------------------------------------------------

 (Defendant)

(Self- Litigant)

 

[FTMDave]

I'll try to tidy this up this evening.

 

Can you tell us the deadline for filing your WS?

[simeon1964]

Not very clear about about the direction. copy attached here.

 

Court DirectionDec21.pdf

[FTMDave]

You have until three working days before the hearing to file your WS, so there is plenty of time yet for Caggers who have a lot more experience than me to look in and comment.  So take your time.  Obviously it's Christmas now so it might take till Monday before anyone has time to help.

 

I've tried to improve what we've prepared and to link your arguments to the builder's solicitor's WS points.  The numbers have gone for the moment due to moving paragraphs around, and others will insert other arguments, so that can be sorted later.

 

You're right that exhibits need to be included.

 

You need to include a section that succinctly makes it clear why you think the 16 grand owed (to counter the builder's solicitor's points 15-22).

 

Can you please also upload the July order when you won the case, as there is some confusion about the date.

 

 

I ….. am the defendant in this proceeding.  I live at ……….Street, Manchester.  I make this statement in opposition to the Claimant's application for the Judgement order of 19/07/2021 to be set aside.  This statement is true to the best of my knowledge and belief.

 

It was the Claimant who decided to start litigation.
 

The Claimant's solicitor admits ignoring the Court's instructions was a “serious breach” (point 25 of the Claimant's solicitor's Witness Statement)

 

It appears that the Claimant handed control of his case over to a third party and did not check what was happening (point 27). This was the Claimant's own fault and the time of the Court and of the Defendant should not be taken up further due to his negligence.
 

To say (point 28) that the Claimant did not appreciate the importance of the Court's orders is disingenuous.  On that basis every default judgement ever made should be set aside!  It is common sense that if you apply for a passport or a driving licence for example, that you read the notes that accompany the application forms. The MCOL user guide and notes on government website pages concerning small claims are written in plain English and are much easier to understand than notes for a passport or driving licence application. The Court's orders were also written in simple, straightforward English.
 

The fact that the Defendant at the time was represented by a solicitor has no connection whatsoever with the Claimant's decision to ignore the Court's clear orders (point 31).

 

The Court's instructions were written in clear, simple English and if the Claimant ignored them it was his own fault.  "Unless by 4pm on the 11th June 2021 the Claimant files the requisite Directions Questionnaire the claim shall stand as struck out ... and judgement shall be entered for the Defendant on the Counterclaim" and then later "WARNING: you must comply with the terms imposed upon you by this order: otherwise you case is liable to be struck out" is about as clear as clear can be.

 

The Claimant

  (i) did not read a user guide

  (ii) did nothing to ensure documents were filed at the Court on time

  (iii) ignored a Directions Questionnaire order

  (iv) ignored Judgement order.

(ii), (iii) and (iv) are admitted by the Claimant's solicitor who amazingly concludes that these omissions were not the Claimant's fault (point 28).  This begs the question of who exactly was to blame, if not the Claimant. 

 

An application for set aside should be made promptly.  This application is not prompt.  In fact the Claimant knew in July that judgement had gone against him but as usual he ignored the Court's instructions.

 

The Claimant only became interested in a set aside once enforcement action had begun.

 

The Claimant admitted the debt and offered to pay it off at a £100.00 a week during negotiation with the Defendant's former solicitor (exhibit XXXXX).

Edited December 24, 2021 by FTMDave
Extra info added

[simeon1964]

Thanks. May, July and Sep Order seeing for first time.

 

Orders2021CAG Dec.pdf