Flaws in Defence counterclaim Help

[simeon1964]

The General Form of Judgement or Order  of the 28th March 2022, Marked Simeon1964 as Defendant. He can not be translated to mean otherwise.

I want to believe that the court process has moved on from Simeon1964 being counter-claimant. I can still do the letter if desirable, I have till 23rd May.

[FTMDave]

Yes, you have till 23 May but that is when the process is supposed to terminate.

 

The builder is an idiot with a history of ignoring court orders and has stupidly relied on a solicitor to do everything for him.

 

You have a golden opportunity here to get in first, come across to the judge as the reasonable one, and embarrass the builder.

 

I would have sent the letter on 3 April, but it's up to you, it's your 16 grand not mine.

 

 

[simeon1964]

 

The claimant's Solicitors:

 

" I have been instructed to offer a settlement on a drop hands basis with both parties bearing their own costs."

[FTMDave]

OK, so what are your comments on this "offer"?

 

Presumably you reject it completely.

 

Was it in reply to the letter Manxman in Exile & I drafted?

 

 

[simeon1964]

This is not a serious offer. Looks like playing games. Going 2years now since i cant continue the repairs and the quotes to update the house is never going to remain same. Not serious and a waste of time

[FTMDave]

You're absolutely right.

 

Did you send the letter Manxman in Exile & I drafted?

[simeon1964]

Yes

 

 

Edited August 26, 2022 by dx100uk
unnecessary previous post quote removed

[FTMDave]

OK, well done.

 

That will show the judge that you took the initiative to negotiate and the other party has been unreasonable and offered £0.00.

 

I suggest you reply with something like -

 

Dear XXXXX,

 

thank you for your e-mail of XXXXX.

 

An offer of essentially £0.00 in a claim for nearly £16,600.00 is not a serious attempt to negotiate and I will communicate this to the judge.

 

I ask you again whether you still stand by point 17 of your client's defence in which you state your client intends to submit a further counter schedule of loss although you know full well that the matter has already been the subject of litigation and the claim was dismissed by the Court.

 

Best regards,

XXXXX

 

However, hang on for 24 hours and see what others think.

 

 

No-one has objected, so send the above.

Edited May 11, 2022 by FTMDave
Typo

[simeon1964]

What the Defence says at para 17 is,

 

If the Part 20 Claimant establishes any breach of contract or negligence, which is

denied, the Part 20 Claimant is put to proof as to the nature, cause and extent of

such losses. The Part 20 Defendant intends to submit a further counter schedule

of loss once the Part 20 Claimant has provided full disclosure in the case.

 

What exactly does this mean if this matter was dismissed by the court? and what full disclosure?

Edited November 7, 2022 by dx100uk
unnecessary previous post quote removed

[FTMDave]

The judge has fixed this negotiating period.

 

After that there will be a hearing.  Before the hearing you will have to produce a Witness Statement.  The WS is "full disclosure".

 

The builder's solicitor is pretending that at that point they will produce a list of the builder's losses but it's a bluff as the builder's claim has already failed in court.  Which is why we keep mentioning it to show the builder's solicitor we know he is full of bull.

[simeon1964]

I need help with the issue of negotiation.

 

My loss to date is more than 16k as my property deteriorate daily, only habitable for me alone.

 

I may not die with my life threatening sickness but i am wary daily of being electrocuted in my home with live electrical flicking in my face daily resulting from the way the builder left my house uncompleted.

 

Yes I want to move on but where do i start ?

£16k two years ago will be more by the time claim is concluded.

[FTMDave]

I'm sorry about the position you're in, but unfortunately you're stuck with the times of the law system in England.

 

This daft mediation period is nearly over, hopefully it won't be too long till a hearing.

 

The big mistake was not enforcing when you won the first time round, I don't know what your useless solicitor was doing - or rather not doing.

 

If there is electrical danger in your home then get it fixed and keep the invoices as proof of the builder's incompetence.

[simeon1964]

On 12/05/2022 at 23:03, FTMDave said:

The judge has fixed this negotiating period.

 

Is it the fixing of the" negotiating period"  that overruled or dismisses the point 17 of the client defence?, as I couldn't find any order to that assertion? or where do i find order that this was dismissed.

[FTMDave]

The builder didn't respect court orders, three times, so his claim was thrown out.  You have the resulting court order.

 

He tried to get his claim reinstated in the set aside action, but failed.  Again, you have the resulting court order.

 

Once a claim has failed that's it.  The builder can't claim anything against you.  You won that part.  Well done.

 

The builder's dodgy solicitor hopes you don't know this and has made stupid threats which is why we keep asking him for an explanation which of course he can't give.

 

 

 

[FTMDave]

Well, the negotiation period ends today.

 

You need to draft your report for the judge.

 

It'll be very short, the builder refused to budge.

[simeon1964]

They have not responded directly to me regarding the counter offer that i made (without prejudice) for £12k to be paid within 14days of the offer. ( parties paying their cost).

 

Whether this means they have effectively rejected it is not absolutely clear but probably it does.

 

I reminded them that the claimant already offer payment of £100p/w following the default judgement, was open and not “without prejudice" meaning he was prepared to pay the full amount of the debt. 

 

They have sent me copy letter they sent to the court on 01/06/2022.

 

Reads as follows: ” This claim has not been settled and needs to progress to Trial. The Claim needs allocating and we would suggest to the fast track and Directions given for hearing. “

[mantis shrimp]

Your offer is clearly not going to be accepted (at this stage).

[Manxman in exile]

@simeon1964  -  didn't the Court Order dated 21 March 2022 require YOU (the claimant) to notify the court in writing by 30 May of the outcome of negotiations, and not the defendant?  See previous posts #226  -  #252.

 

I think @FTMDave was quite keen for you to ensure that the court knew from you that you had made negotiating approaches to the defendant, but that they had been rejected out of hand by the defendant.  By allowing the defendant to inform the court that "the claim has not been settled" leaves it open for the court to infer that neither he nor you has made any attempt to settle this - whereas you have actually tried to do so.

 

Or have I perhaps misunderstood what you are telling us?  (And apologies if I have misunderstood your post)

 

Edited June 4, 2022 by Manxman in exile

[simeon1964]

Help with worrisome 

Damages: 

1. Security from claimant if he were to lose the case. This should be in the region of £20k given that he set aside  judgement and ready for proper defence.

2. How can the case be allowed to go ahead during set aside without this security deposit from claimant. This is to my detriment if the claimant loses and unable to pay. I am not being protected here. 

3. is there any law preventing me from doing this?(protection from financial loss! He could file bankrupt) 

4. Base on the evidence I have what are the possibilities of an application for summary judgement? 

5.  Is it too late to ask the court for this money security to be deposited to court ? 

6. All my personal effect still in the shed and storage. I am depress and not living 

7. I can no longer go on with further repairs as I have no resources to carry on. The hopes of renting is gone while bills are being paid with difficulty. 

8. Still no order from the court requesting for independent assessment of the loss /damages as par allocation questionnaire

 

[Manxman in exile]

1.  Did you not ask this same question in post #19?  @Andyorch gave a couple of answers.  (The two of you had an exchange about it #19 - #29)

 

2.  As 1?

 

3.  As 1?

 

4.  I really don't know.  Hadn't you already won a summary judgment in this case that the court subsequently set aside?

 

5.  As 1?

 

6. and 7.  I'm sure this whole business is very upsetting and very distressing for you.  It's a terrible situation to find yourself in.

 

8.  See what others say.

 

 

[FTMDave]

I'm sorry you're in this situation but you're stuck with the timescales of the legal system in England & Wales.

 

Hindsight is a wonderful thing but the £100 per month payment offer and/or immediate enforcement ...

 

Let's hope a final hearing date is fixed ASAP.

[simeon1964]

solicitors reply:

 

My client has considered the matter and considers most of the items claimed on the schedule of loss are not part of the contract be it the first contract or the second.

 

The only items that are claimed that are part of the contract are as follows:-

1. Rain water goods £190.00

2. Damage wall whilst installing flitch beam to both kitchen and lobby (re-plastering) £300.00.

3. Removal of debris £150.00.

4. Mechanical extractor failed control switch £50.00.

5. Air brick – remove debris poor workmanship £50.00.

 

The rest of the items claimed are not within the contracts.

 

Your client is claiming for things that are to finish off the rest of his house e.g. double glazing.

 

To conclude this matter our client is willing to offer £1,000 in full and final settlement of this matter. That amount is inclusive of interest and costs given it is a small amount and would fall into the small claims category. We reserve the right to refer to this offer in relation to costs at the Trial

 

.....................

 

 This is completely unacceptable and wonder if its worth replying to.

Would need opinion for better way to reply to this dubious offer if needs any reply at all.

[FTMDave]

Only you can know the strength of your case for your 16 grand claim.

 

If you're convinced that you have a good case for court then of course don't accept the offer.

 

You don't have to reply - but as the judge organised a negotiation period (which has now finished but negotiations can always continue) - personally I would reply simply stating politely that the offer is unacceptable.

 

It's interesting that the builder is budging.  Firstly he claimed against you, and lost.  Then he offered you nothing for your counter claim.  Now he is offering a grand.  Seems like he is not so confident himself.  The fact that he is an idiot (fancying ignoring a Directions Questionnaire, twice!) and having to pay money to this dodgy solicitor must be making a hole in his pocket.

 

 

 

 

[FTMDave]

It's a little concerning you haven't received any court order after the end of this negotiation period.  I think it would be a good idea to ring the court and ask which stage the case is at.

[simeon1964]

..

 

court letter hearing date 2022-08-05.pdf