Being sued by builder - filed a counterclaim

[simeon1964]

Filed the bundle and got this claimant solicitor,"

 

 

CagJan422 Claimant denfenceDact.pdf

[Manxman in exile]

7 hours ago, simeon1964 said:

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...

 

 

Out of curiosity, what is his defence against your counterclaim?  It can't just be asking you to consent to the set-aside application...

 

[PS - I started drafting this post over three hours ago(!!!) and have had umpteen interruptions.  I see @simeon1964 has since posted up the claimant's defence to simeon's counterclaim]

 

 

Regarding the rest, I think I tend to agree with what I think FTMDave is saying.  Your best result at the moment is if the court rejects the set-aside application and upholds your original default judgment.  But if you consent to the claimant's set-aside application, then you are back to square one defending his claim and putting forward your counterclaim from scratch.  So from that point of view, it would be against your interests to give your consent to the set-aside.

 

However, I think you need to weigh up against that what the possible consequences are if the court grants the set-aside.  FTMDave seems to think that the chances of the court rejecting the application might be less than 50%, so I presume he thinks the court might be more likely to grant the application than not.  (My apologies to FTMDave if I've misunderstood him, but those odds seem believable to me).

 

If the court does grant the set-aside, then it's going to come down to you and the claimant arguing the merits of your respective cases in front of a judge.  Nobody here really knows what the merits of those two opposing cases are.  All we really know is that you engaged a builder to carry out two "projects" total value about £6.8k, that he sued you for just under £3k that you hadn't paid, and that you counterclaimed for over £16k worth of damage that you claim he caused while carrying out the work.  The builder didn't turn up to the hearing, you won a default judgment for your £16k and the builder is now applying to set that judgment aside.

 

You know better than us what happened and you are in a better position than anyone here to judge whether you or the builder is most likely to win in the end.  My only concern would be that I honestly don't think I understand the basis of your defence and counterclaim.  But that might simply be because you haven't been able fully to explain what that is.  [Ps -  looking at the defence to the counterclaim that you've posted while I've been drafting this, I'm worried it might be a bit more coherent than what I understand to be your case for the defence and counterclaim.  But maybe the counterclaim will come across better in court].

 

I'm just a bit worried that if the court grants the set-aside, I'm not certain I can see the merits of your case and how you continue it.

 

Good luck!

Edited January 4, 2022 by Manxman in exile

[FTMDave]

The builder's solicitor is trying to pressurise you, which I suppose is fair enough, the solicitor's job is to do the best they can for their client.

 

There is no "defence" to the counterclaim given the case is over and you won.  Of course what the solicitor sent might become the defence should the judge allow the set aside.

 

If you haven't already, just for clarity send the solicitor the short letter I suggested in post 123 (although they will know from your bundle you're standing your ground).

[Manxman in exile]

I think at this stage what FTMDave suggests is the only realistic option - and to count on the court throwing out the set-aside application.

 

But if they don't, I think simeon will need to rebuild his original defence and his counterclaim before the case gets to be re-heard.

[dx100uk]

pdf's  merged to OP's last post

[simeon1964]

 The Solicitors writes : "In advance of the hearing, please can you explain why between 26 November and 16 December you ignored 4 text messages and 2 telephone calls which were expressed as urgent in respect of the enforcement action you commenced.

 

I look forward to hearing from you. "

[FTMDave]

Ignore their bluster.

 

You had every right to proceed with enforcement until the court stayed it.

[simeon1964]

He had sent me what he called the "original court bundle" which I am looking at the moment:

Should he be including the copy of his defence to my counterclaim that he sent me yesterday into the bundle?

 

 

The hearing before the Court is the Claimant’s Application to set aside judgment on the counterclaim and to reinstate his own claim.

 

The Claimant is a builder and commenced proceedings himself on 25 February 2021, as a litigant in person, in respect of monies owed from work carried out to the Defendant’s property.

 

On 27 March 2021, the Defendant filed a Defence to the Claim and brought a Counterclaim against the Claimant. Inter alia, the Defendant disputes the Claim brought by the Claimant alleging that the work was not performed to reasonable quality.

 

His counterclaim stated that he had allegedly sustained financial loss in the sum of £16,577.12. The statement of truth is dated 26 March 2021.

 

Around this time, the Defendant retained solicitors to act for him. Following this, the Court issued orders for the submission of Directions Questionnaires. The Defendant, via his solicitors, filed their Directions Questionnaire.

 

A further order was issued on 25 May 2021 requiring the Claimant to file their Directions Questionnaire by 11 June 2021 failing which the Claim be struck out. Having failed to comply, the Claim was struck out pursuant to an Order dated 19 July 2021. Judgment was entered in respect of the Counterclaim.

 

The Claimant instructed solicitors on 9 September 2021 and an application was made on 13 September 2021 to reinstate the Claim and to set aside judgment on the Counterclaim. The Claimant disputes the allegations made by the Defendant both in terms of there being any negligence or breach of contract.

 

The Claimant also disputes the amounts claimed and the both the existence and causation of the alleged faults. The Honourable Judge is asked to adjudicate on the Claimant’s application at the hearing on 10 January 2022 at  via BT Meetme. 

 

In the event that claimant application is upheld, would I be able to ask the court to amend my Defence counterclaim and ask expert assessor to value the cost of repairs at the hearing or I have to put the request in the bundle now?

 

Thanks

[Manxman in exile]

I presume that is the Claimant's grounds in support of his set-aside application?  (Apologies for saying this, but when you quote from someone other than yourself, it would be helpful if you could make it a bit clearer what and who it is you are quoting.  Like using quotation marks or something).

 

As has already been discussed, one of your main lines of argument against the set-aside is what is admitted there:

 

26 minutes ago, simeon1964 said:

... A further order was issued on 25 May 2021 requiring the Claimant to file their Directions Questionnaire by 11 June 2021 failing which the Claim be struck out. Having failed to comply, the Claim was struck out pursuant to an Order dated 19 July 2021. Judgment was entered in respect of the Counterclaim...

 

The judgment against the claimant was entirely as a result of his own inaction ignoring the court order of 25 May 2021 to file his DQ by 11 June 2021.  He ignored a perfectly clear court order, the consequence of which was having judgment against him.

 

Haven't you submitted all your papers by now?  Isn't today the deadline?  (I've lost track of dates).

 

11 minutes ago, simeon1964 said:

In the event that claimant application is upheld, would I be able to ask the court to amend my Defence counterclaim and ask expert assessor to value the cost of repairs at the hearing or I have to put the request in the bundle now? Thanks

 

We've cross-posted.  I'm afraid I don't know the answer to this specific question.  The detail of civil proceedings and drafting court documents is not my forte.  Sorry.

 

Again - Good luck...

[simeon1964]

My bundle went yesterday, I was sent the solicitor bundle today.

Can I forward pleadings in my bundle tomorrow, ? This is for builder leaving my property in this deplorable condition for over, deprived of rental income, etc for over a year plus my declining health issues if claimant is granted set aside, it might take another year living in this condition if I survive my health issues. 

[simeon1964]

 The cover note from solicitor reads,  "Attached is the official bundle for the hearing. You are referred to the order which states that the Claimant (Whitehead) should prepare this.

 

The bundle contains core documents necessary for the Judge. I have included your witness statement in response. In my view the other items are not essential for the hearing. The purpose of the hearing is not to try the case but to adjudicate the merits of the application.

 

I strongly recommend that you resist sending any more documents to the court. It places an untold burden on the staff and also the size of the attachments is a burden on the IT system.

 

I have reduced the size of the PDF to assist the court and hopefully make the Judge’s life easier in accessing the document.

 

Given the fact we have cross claims for both parties, I have drafted a neutral case summary which sets out the chronology and what both side’s versions of events is. I reiterate, this is not an opportunity for you to put your side again – you have done this in your witness statement.

 

I have resisted making a further statement for similar reasons as above – the Judge has just 30 mins to hear the case and is unlikely to have very long before the hearing to read over everything. You will have an opportunity to address the Judge at the hearing and make any additional points that you want to. My client also will do likewise – this is a better use of time and more expeditious for the court than further statements being submitted.

 

I hope you take on board this invitation. You are forgiven for thinking that litigation is all adversarial – that is not the purpose of the civil procedure rules – the parties are obliged to work together and bring things to a conclusion swiftly and in the least invasive way to the court. "

 

 

 

[dx100uk]

23 minutes ago, simeon1964 said:

I strongly recommend that you resist sending any more documents to the court. It places an untold burden on the staff and also the size of the attachments is a burden on the IT system.

urm..lots of things here that protray its not me doing this for the advantage of ny client butthe courts time.

 

an example of bs is the above line.

 

dx

[FTMDave]

dx is spot on.

 

You've filed your bundle, just ignore this mountain of rubbish that the other party's solicitor is sending to try to unsettle you.

 

More tomorrow.

[simeon1964]

51 minutes ago, simeon1964 said:

Can I forward pleadings in my bundle tomorrow, ? This is for builder leaving my property in this deplorable condition for over, deprived of rental income, etc for over a year plus my declining health issues if claimant is granted set aside, it might take another year living in this condition if I survive my health issues. 

 Ok to forward pleadings ?

[dx100uk]

i will fall on the side of this is only a set aside hearing, its not the full works so you dont need to file anything 3rd part harmony. if he gets it, then is your time for the kitchen sink.

[FTMDave]

Why?  The next hearing is a SET ASIDE hearing, not a hearing to decide who is right and who is wrong in your dispute.  In your WS you've included details which support your counter claim.  That's enough.

 

How many times does this have to be pointed out?

 

1 hour ago, Manxman in exile said:

The judgment against the claimant was entirely as a result of his own inaction ignoring the court order of 25 May 2021 to file his DQ by 11 June 2021.  He ignored a perfectly clear court order, the consequence of which was having judgment against him.

MiE has hit the nail on the head and you need to hammer this home during the hearing.

 

I'm too tired to deal with this now but will post tomorrow.

[simeon1964]

Well done, and thanks all

 

[simeon1964]

When I address the judge, will I go through the relevant witness statement point by point or will assume that the judge would have read the WS?

[AndyOrch]

Should have but in most cases probably not...this is a set a side hearing correct not a trial hearing.....will probably last 20 mins tops to see if their application is legally valid to set a side and that your default judgment was given correctly...simply looking that process was followed correctly...they wont even consider the points of the actual claim.

 

Andy

[dx100uk]

It is only a set aside hearing..max 30 mins.

you will not be going through point by point, anything.

 

DX

[simeon1964]

Meaning, I will not have to say anything or ask questions.

[dx100uk]

Meaning.. The judge is in charge..you speak when spoken too, and only answer what is asked of you with no 3rd part harmonies added on. 

 

DX

[FTMDave]

The builder's solicitor is trying to unnerve you so just ignore his rubbish.

 

Your bundle has been submitted, you don't have to anything else now.

 

21 hours ago, simeon1964 said:

Should he be including the copy of his defence to my counterclaim that he sent me yesterday into the bundle?

It would be a good idea for the builder if a draft defence to your counterclaim was included, yes.

 

The builder's solicitor wrote -

 

21 hours ago, simeon1964 said:

 

Following this, the Court issued orders for the submission of Directions Questionnaires. The Defendant, via his solicitors, filed their Directions Questionnaire.

 

A further order was issued on 25 May 2021 requiring the Claimant to file their Directions Questionnaire by 11 June 2021 failing which the Claim be struck out. Having failed to comply, the Claim was struck out pursuant to an Order dated 19 July 2021. Judgment was entered in respect of the Counterclaim.

Interesting.  So I've read this right, the builder ignored the DQ order, and was then given a second opportunity by the judge with a specific warning that his claim would be chucked out and you would win - and he failed again.  It's a pity we didn't know this before, we could have included it in your bundle.

 

If the judge asks you to speak you should emphasise how many times the builder has failed to respect court orders - the DQ stage, a second chance with a specific warning at DQ stage, and then the judgement itself.

[simeon1964]

Thanks for for this, that's litigation, too involve. You all have done the outmost. I will take it on the chin if it goes against me, as I am now getting ready to re-boot, not that I like to.

[AndyOrch]

What you need to get your head around here is that there are 2 different processes occurring...the claim / main trial and secondly the set a side application....both are running in parallel but must treat both with different approaches.

 

Main claim trial is based on fact and evidence.....application for set a side is based on due process and whether the process of allowing your default judgment was applied correctly. 

 

Once you have separated the two you should be fine in defeating their application.

 

Andy