Being sued by builder - filed a counterclaim

[FTMDave]

Thanks.  I've made some changes to the draft WS above.  Was there any other order before the 27 May one?

[simeon1964]

No, I have not seen one. Only draft order by my solicitor 

[simeon1964]

Could i have put this any better :

 

“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).”

 

The defendant financial loss are failure of the claimant to complete the job, the cost to repair, replacement of damaged structures, maintenance of equipment, and rectify the infrastructures and fabric of the property all these are attached on the snagging list and Schedule of loss.

 It cannot be true in the claimant solicitor’s witness statement, that the contractual work between both parties was £4,300.00 in fact it was £6,880.00 of which claimant was paid £4,366.66, and 4 times the contractual work is £27,520.00. That the defendant asked for the services of a builder to pay, not to want money from the builder or expecting the builder to pay the defendant. The defendant is a pensioner who has come to re- locate in Manchester peacefully from London. The cost to rectify this re-work are from various internet searches on “Bark and MyBuilder” this was costed to finish the claimant failure to complete his work. (P15-25)  Builders estimate and Photo of uncompleted work. Exhibi xxxxxx

 

[simeon1964]

"This an improvement, can it be better put please"

The defendant financial loss are failure of the claimant to complete the job, the cost to repair, replacement of damaged structures, maintenance of equipment, and rectify the infrastructures and fabric of the property all these are attached on the snagging list and Schedule of loss.

 It cannot be true in the claimant solicitor’s witness statement, that the contractual work between both parties was £4,300.00 in fact it was £6,880.00 of which claimant was paid £4,366.66, and 4 times the contractual work is £27,520.00. That the defendant asked for the services of a builder to pay, and not to want money from the builder or expecting the builder to pay the defendant. The defendant is a pensioner who has come to re- locate in Manchester peacefully from the south. The cost to rectify the re-work of the claimant’s failure to complete will involve the services of:

 (i)a Roofer,

(ii) a decorator,

(iii) a plasterer,

 (iv)an Electrician,

(v) a Boiler engineer,

(vi) a landscaping man,

(vii) a carpenter,

(viii) Bricklayer/Builder and

(ix) an interior decorator (for damaged fixtures and fittings), and

(x) the cost of assessor or surveyor to be approved by the court if not satisfied by the the claimant.

That the defendant  quotes are from various internet searches on “Bark and MyBuilder” this were  costed to finish the claimant failure to complete his work, plus two quotes from local Builders. Estimated quotes, financial loss, snagging list  and  and some Photo of uncompleted work. Exhibit xxxxxx

 

 

 

 

[FTMDave]

OK, I've tidied up the English, split into paragraphs, and added to what was already prepared.  Always remember this is going to go before a judge who knows nothing about the case, so it has to be as clear as clear can be.  Put yourself in the judge's position. 

 

See what the other regulars think.

 

Please remind me when you have to file this by?

 

 

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 negotiations with the Defendant's former solicitor (exhibit XXXXX).

 

Response to the Claimant's solicitor's comments that the Defendant's counterclaim pleads no valid course of action

 

The Defendant's financial loss is due to the failure of the Claimant to complete the work.  The cost of repairing, of replacement of damaged structures, of maintenance of equipment, and of rectifying the infrastructure and fabric of the property are shown on the attached snagging list and schedule of loss.

 

The claimant's solicitor’s witness statement is incorrect (point 21).  The contractual work between both parties was not for £4,300.00 in fact it was £6,880.00 of which the Claimant was paid £4,366.66. 

 

Four times the contractual work would be £27,520.00, not £15,577.12 (point 20).

 

The cost of rectifying the work as a consequence of the Claimant’s failure to complete will involve the services of:

(i) a roofer,

(ii) a decorator,

(iii) a plasterer,

(iv) an electrician,

(v) a boiler engineer,

(vi) a landscaping person,

(vii) a carpenter,

(viii) a bricklayer/builder,

(ix) an interior decorator (for damaged fixtures and fittings), and

(x) the cost of an assessor or surveyor to be approved by the court if not satisfied by the the Claimant.

 

The Defendant's quotes are from various internet searches on “Bark and MyBuilder”, plus two quotes from local builders.  Estimated quotes, financial loss, snagging list and some photos of uncompleted work are shown in exhibit xxxxxx

[simeon1964]

Thanks: The filing is three working days before the hearing, meaning to file by Tuesday the 4/01/2022. Hearing is Monday the 10^th. Don’t have clue about the 'E'bundle/paginating pdf/authority etc

[Manxman in exile]

I have a couple of comments to make as I find the way in which this thread has developed more than a little confusing.    Hopefully that is because of deficiencies in my own understanding and not because of possible weaknesses in @simeon1964's case.  In any event, if simeon can successfully defeat the application to set aside the original judgment, I suppose any queries I have will hopefully be irrelevant... 

 

My first query concerns the amount agreed for the original contract between the claimant and simeon.  In the Defence and Counterclaim simeon posted at #91, simeon appears to state that the agreed price was £4300 (para 7).  And yet when prompted by FTM that: 

 

"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)"  see #99

 

simeon then goes on to say (#103) that:

On 01/01/2022 at 20:22, simeon1964 said:

...

 It cannot be true in the claimant solicitor’s witness statement, that the contractual work between both parties was £4,300.00 in fact it was £6,880.00 of which claimant was paid £4,366.66, and 4 times the contractual work is £27,520.00. ...

 

 

This statement appears to directly contradict what simeon has already submitted to the court in their original Defence and Counterclaim.  Where does an agreed figure of £6880 come from?  (Apologies if I've completely misunderstood or simply missed something, but I can't explain the apparent contradiction here, and I can't follow what simeon is trying to say here)

 

[Edit:  I think simeon is trying to respond to FTMDave's suggestion to explain how they have arived at £16.5k losses, but I think they've got hold of the wrong end of the stick and have got confused with the claimant's solicitor's comments about the counterclaim being 4 times the value of the contract.  But I don't really have a clue what simeon is trying to say here... ]

 

(Also - can I point out that simeon appears to have left their name visible in their Defence and Counterclaim - just above the declaration of truth).

 

Second, as the claimant's solicitor has said in their witness statement (para 21) simeon's counterclaim doesn't seem to identify a cause of action justifying losses amounting to almost four times (£16.5k) the original value of the contract (£4.3k not 6.9k).  I know FTMDave has already suggested that simeon addresses this, but it doesn't seem to me that they have(?).  It seems extraordinary to me that a builder could cause damage of over 16k on a 4k contract.  (I'm not saying it's impossible but I would have thought the losses need to be strictly quantified and the cause of those losses identified - eg the claimant's negligence).

 

And that brings me to my third query, directly following on from the second.  This is perhaps a defect in my own understanding, but I don't understand how simeon has arrived at a figure of £16.5k for the remedial works that he is counterclaiming for?  What are online estimates from "Bark and MyBuilder"?  I may very well be mistaken - and my apologies if I am - but are these proper quotes or estimates for specific remedial works submitted by bona fide tradesmen who have examined the extent of the works required, or are they simply generated from some website?  Would they stand up in court under scrutiny from the claimant - who is a builder?

 

Hopefully none of the above will need to be adressed if simeon successfully challenges the claimant's set-aside application.  But if he is unsuccessful and the set-aside is granted, I think he will need to put a lot more work into his Defence and Counterclaim.  It may have been good enough to get an initial judgment by default, but it may not be so good if both sides end up being heard.

 

Here's hoping the court rejects the set-aside application.  Good luck.

[simeon1964]

6 hours ago, Manxman in exile said:

I think simeon is trying to respond to FTMDave's suggestion to explain how they have arived at £16.5k losses, but I think they've got hold of the wrong end of the stick and have got confused with the claimant's solicitor's comments about the counterclaim being 4 times the value of the contract.  But I don't really have a clue what simeon is trying to say here... ]

 

There are two contracts, first for a total £4,300.00 signed 13/08/2020, Second contract called project: 2 signed 07/09/2020 for £2580.00. Total: £6,880.00.

He was paid £2,866.66 being first two payments, completion payment held.

He was paid £1500.00 on Project 2, on his knees because he pleaded to want pay staff.

As more money is involved to get accurate assessment, the quotes are local tradesmen and website figures as per my schedule of loss some cells are left out as TBA, (to be assessed) as I could not get figure in time for defence counterclaim

At the stage of the case I cannot continue to pay for professionals for accurate assessment so decided leave the claimant to assess for himself.

Wonder if the attachment suitable for my witness statement

CagDact 032022.pdf

[simeon1964]

9 minutes ago, simeon1964 said:

There are two contracts, first for a total £4,300.00 signed 13/08/2020, Second contract called project: 2 signed 07/09/2020 for £2580.00. Total: £6,880.00.

Paragraphs 7 and 13 of defence and counterclaim please and thanks

[simeon1964]

Sorry left name visible on contract again, now dacted

 

CagDact 032022(1).pdf

Edited January 3, 2022 by FTMDave
Redacting carried out on request of OP

[FTMDave]

Thanks Manxman in exile.

 

There is a huge amount of information on the thread and I certainly haven't been able to take it all in.

 

My thinking was to concentrate on the set aside for now.  If it's refused, fine, if it's granted then it would probably be better for the OP to start a new thread and explain things in bullet points from scratch.

[simeon1964]

15 hours ago, Manxman in exile said:

My first query concerns the amount agreed for the original contract between the claimant and simeon.  In the Defence and Counterclaim simeon posted at #91, simeon appears to state that the agreed price was £4300 (para 7).  And yet when prompted by FTM that: 

But (Para 13) was overlooked. Do i misunderstood legal points here. the combined total?

[FTMDave]

@simeon1964

 

yes, by all means include your Statement of Loss as an exhibit.

 

I've done the redacting you requested.  In the future you can easily do it yourself using a free site  https://www.sejda.com/pdf-editor#results-EWR2IUL0-202201031915

 

Your case is extremely complex and had been going on for months if not years without any involvement from CAG (until you dumped your useless solicitor).  There is no way we can understand every twist and turn.  For the moment concentrate on the set aside.  Check what we have prepared for accuracy before filing.  Then we can assess the situation after the hearing on 10 January.

 

The judge "should" refuse the set aside, but be warned that we usually see set asides granted here, so argue your case next Monday but be very prepared for the judge to allow a rematch.

[simeon1964]

Absolutely, never expect it will be a free ride, only shocked to hear its default judgement . Are your now clear on claimant solicitor claim on 4x the amount or I have got something wrong?

What about the "Authority, skeleton argument, and believe this should go tomorrow if its three days before hearing?

 

[Manxman in exile]

@simeon1964  I agree with FTMDave that for the moment you are probably best to concentrate on trying your best to get the claimant's set-aside application rejected by the court - so you need to make sure you get those relevant points beofre the court.  (I don't think at this late stage you can do much better than FTMDave's suggestions at #105 - but I'm no expert at drafting legal pleadings and neither is FTMDave.  I just don't think you really have any other choice at this late stage).

 

If the court agrees with you and rejects the set-aside application, then all well and good.  But if I were you I would be prepared for the court to grant a set-aside which would mean you having to argue the case again before a judge.  If that happens then, as FTMDave has indicated, I think you will need to build your defence and counterclaim pretty much from scratch if you want to succeed.  At the moment it makes very little sense to me.

 

In particular I'm concerned that your counterclaim does not make clear why the claimant is responsible for causing your losses, and it's not clear to me what the counterclaimed figure of £16.6k is based on.  It sounds worryingly to me that they have been plucked out of the air... 

 

17 hours ago, simeon1964 said:

...

As more money is involved to get accurate assessment, the quotes are local tradesmen and website figures as per my schedule of loss some cells are left out as TBA, (to be assessed) as I could not get figure in time for defence counterclaim

At the stage of the case I cannot continue to pay for professionals for accurate assessment so decided leave the claimant to assess for himself.

...

 

 I'm loathe to say it, but that doesn't sound very reliable to me.

 

Forgive me for asking, but I presume English is not your first language and (despite several earlier threads) you are not really familiar with the English legal system?  If the court accepts the claimant's set-aside application then you probably need to come back here as soon as you get the decision and you really need to start a new thread from scratch - including everything in a logical and chronological order.

 

Good luck in opposing the set-aside!

[simeon1964]

As per the court directions, I still don't know how to prepare the e- bundle if i have three days before hearing, it should leave today, any help

[honeybee13]

As an example, here is a guide to preparing a court bundle.

 

How to prepare a trial bundle and index

WWW.ADVICENOW.ORG.UK

---

This guide will help you to understand how to prepare a trial bundle and index in a fast track case. It is part of a series of guides about using the civil...

HB

 

[AndyOrch]

Court e-bundle requirements [complete 2021 guide] | Feature | Communities - The Law Society

COMMUNITIES.LAWSOCIETY.ORG.UK

---

James Logue, researcher and marketer in the legal software as a service (SaaS) industry, shares the essentials you should be looking...

 

[simeon1964]

Got this from claimant solicitor this morning:" 

ttached is the claimant's defence to the counterclaim.

 

In the interests of time and saving costs you are formally invited to agree my clients application.

 

All this involves is allowing my client the chance to defend your claim and for his to continue.

 

You can both put your evidence to the court in due course in the future.

 

If you will agree to this request I will draw up a consent order for you to sign and it will negate the need for a hearing and all costs that result from me having to prepare bundles etc.

 

[simeon1964]

Another "you need to send this over today.

 

We will do the index as represented parties are obliged to.

 

I will also be contacting the court but that increases costs so please send over any orders you have."

 

 

 

[dx100uk]

In other words they are begging you to sign a consent order they have conjured up, which can only be advantageous to them and detrimental to you.

 

the usual advice is not to agree esp if they are pressuring you, which they seem to be doing.

 

can you scan it up??

 

Dx

[simeon1964]

Thanks, I am standing my ground and thanks again in the middle of the bundle

[FTMDave]

If you sign the consent order they will definitely get the set aside.

 

if you refuse there is a chance - probably under 50% but a chance - that the judge will reject their application.

 

If you sign you are saving the other party the solicitor's costs of arguing in the hearing, on top of the £255 the application cost.

 

If you don't sign the other party will see their costs spiralling due to their stupidity and this may put pressure on them to try to reach an agreement with you.

See what the others think, but I would be tempted to reply with a short 1st class letter or e-mail (depending on how they contacted you) with -

 

"Dear XXXXX,

 

thank you for your letter of XXXXX.

 

I confirm that I will not be signing any consent order.

 

It is not my fault if your client chooses to ignore simple directions from the court.  Your client has already had ample opportunity to defend my claim and for his to continue.

 

I will later file and serve all documentation according to the court's directions.

 

Yours ..."

 

 

[simeon1964]

3 hours ago, simeon1964 said:

I will also be contacting the court but that increases costs so please send over any orders you have."

 

Could somebody explain this please?

[dx100uk]

Just willy waving that if you dont sign their consent order their costs against you could spiral.

 

DX