Flaws in Defence counterclaim Help

[simeon1964]

Had flaws in my defence and counterclaim caused Judgement set aside:

1. Not properly Particularised defence and counterclaim: 

2.To indicate negligence and breaches of contract

3. Expert opinion

the complete response to the in 10days help

 

Both Prev CD2022.pdf

[simeon1964]

Filed counterclaim help.pdf

[Manxman in exile]

Hi simeon.

 

Wow.  I can see you have spent a lot of time considering the questions I suggested from the other thread - well done. That makes much more sense and I begin to see what has happened - and I can see why you are counterclaiming.  It's that detail - the chronological order and the explanation of what happened that's required.

 

I've only scanned through it at the moment.  I'll look at it more closely over the next day or two

 

See what help others can offer.  In particular, BankFodder may suggest that you turn the PDF file in #2 into a timeline or chronological list of bullet points of what happened.  (And I don't just mean copy and paste my questions and your answers, I mean you creating a history of what happened from those questions and answers.  Yes?)

 

Then you can use that document to re-draft* your defence and counterclaim in your own words for others here to comment on.

 

Do you have any evidence (eg written reports etc) from the building inspector or structural engineer highlighting that your builder's work was sub-standard?

 

 

* I'm assuming that the judge who accepted the claimant's set-aside application told you to go away and re-draft your defence and counterclaim?  So you don't have to rely only on what you originally submitted?

Edited January 11, 2022 by Manxman in exile

[simeon1964]

Manxman in exile, will do and also chase the building inspector

Filed counterclaim help fewphoto.pdf

[Manxman in exile]

So who is that from?  Is that from your structural engineer/surveyor and did they draw up the original plans/drawings for your builder to work from?

 

That report seems quite helpful.  Are they aware that the work in question is the subject of litigation?  It might be worth your while to speak to them to see if they can provide further help for you.  Can they compare what work was agreed against what work was done, and done badly?

 

Similarly the council building control inspector.  Explain the work is the subject of litigation between you and the builder and you would like a report highlighting the flaws and faults in the work the builder did and needed putting right.  (I don't know if they can do that or not but you may as well try).

 

Haven't you already got access to all this sort of stuff though?  Didn't your previous solicitor pull all this stuff together in your defence evidence bundle before the original hearing?  If you have paid your previous solicitor off in full, aren't you entitled to all the papers he has relating to your case?  (Again, I don't know, but I thought that's how it worked... )

 

As regards your £16000 counterclaim, what have you got in the way of physical quotes and estimates from builders and traders (or your structural engineers/surveyors) to back up that value?  In other words, what evidence do you have that getting the work completed and/or put right is going to cost you £16K?  At the moment all I can recall seeing are "blind" (ie just on un-headed paper with no indication where they come from) lists of snagging and remedial work you claim needs to be done to put right the claimant's bad workmanship.  How does the court know you have not made all that up?  (I'm not suggesting you have, but how does anybody know you haven't?).  So how have you arrived at £16K?  You will have to persuade the judge that you are legally entitled to that £16k, so you need to provide evidence that that is what it will cost to put right.

Remember that what you are basically doing with your defence and counterclaim is telling a history that explains why you are right and the claimant is wrong.  Every history has a beginning, a middle and an end.  Everything has to be told in a logical order, and everything needs to be explained in a way that anyone can understand, and which is supported by evidence.  You are not writing a mystery novel where you are trying to confuse and mislead people.  You want everything to be crystal clear for the reader so they don't need to ask any questions.

 

As I mentioned in the previous thread, have you tried asking Citizen's Advice Bureau for help?  I don't see why you can't.  Are you in a position to get legal advice from another solicitor?  Or if you live in Manchester, have you checked to see if the University Law School offers any kind of free legal advice?  Lots of university law schools do so and Manchester has a good law school.  If you really are pursuing a genuine counterclaim for £16000, it seems a lot of money to risk as a litigant in person without proper legal advice.  In particular, I don't know if a counterclaim of £16000 might have cost implications for you.   But it's entirely your choice what you end up doing.

 

You don't need to respond to me immediately, but you do need to start gathering documents and evidence to support your defence and counterclaim, and think about how to draft your defence and counterclaim.  (Again, as I said in my previous post, I presume the court has told you to re-do your defence and counterclaim and you aren't stuck with the original one?).

 

I know there is a lot above for you to take in, but I hope it's some help to you.  See what other people suggest too.

 

[NB  -  Please note I am not a lawyer and I'm not giving you legal advice, I'm just giving you an opinion that at the end of the day is worth nothing.  I also don't know anything about drafting claims and defence pleadings.  I'm just stating what seems like common sense to me, so you need to bear that in mind.

 

If you want legal advice you can rely on, you really need to pay a solicitor for that advice.]

[simeon1964]

I have written the defence and counterclaim myself with the help of a legal friend and quickly submitted it to meet deadline as have serious health issues at the time. I contacted my former solicitor there after.  All he did was dealt with  the allocation questionnaire and since the claimant didn't defend it, bingo. Nothing much in my file apart from allocation questionnaire and all the papers he generated etc, phone, letter, seek judgement .

 

Secondly on N149A the former Solicitor had asked  for written Expert Evidence being surveyor/ contractor. and he writes : " Cost=TBC" (Dont know what that is?

 

Yes, I am trying other help as well, only that the covid19 making things more difficult and time is not really on my side.

 

[honeybee13]

TBC could mean 'to be confirmed'.

 

HB

[simeon1964]

Does this mean that the cost to be paid by both parties if confirmed

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

[honeybee13]

I don't know. I read it that the cost itself was to be confirmed [awaited], rather than who pays what, but other people may have read it differently.

 

HB

[AndyOrch]

Yes TBC to be confirmed for the expert witness.

[FTMDave]

1 hour ago, Manxman in exile said:

Remember that what you are basically doing with your defence and counterclaim is telling a history that explains why you are right and the claimant is wrong.  Every history has a beginning, a middle and an end.  Everything has to be told in a logical order, and everything needs to be explained in a way that anyone can understand, and which is supported by evidence.  You are not writing a mystery novel where you are trying to confuse and mislead people.  You want everything to be crystal clear for the reader so they don't need to ask any questions.

This to me hits the nail squarely on the head.  You will be in front of a judge who will know nothing about the case. 

 

Your defence has to explain in a clear bullet-pointed way why you don't owe the money.

 

Your counter claim needs to explain similarly why you are entitled to £16,000. 

 

You need to be able to prove the vast majority, or if possible all, the costs that make up the £16,000.

 

So get on with drafting the two documents.  Don't worry about the English, we can clear that up.  Just make sure you are succinct and clear.

[Manxman in exile]

OK.

 

So when you received the original claim from your builder, you drafted your own defence and counterclaim with the help of "a legal friend".  (Can't this legal friend help you again now, as they must be much more familiar with your problems than anybody here?).

 

You then fell ill and had to get a solicitor to continue with the case, but all he had to do was answer the allocations questionaire because you won default judgement when the claimant failed to comply with court orders.  As you say - Bingo!

 

On 12/01/2022 at 13:28, simeon1964 said:

... Secondly on N149A the former Solicitor had asked  for written Expert Evidence being surveyor/ contractor. and he writes : " Cost=TBC" (Dont know what that is?

...

 

 

So does that mean that your solicitor actually had an expert written report, or just that he was planning to get one done, but had not yet got round to it?  (I suspect honeybee13 is correct that "TBC" means "To be confirmed", which suggests to me that no report has actually been done... ?)

 

My personal view - and it's only my view - is that if you have nothing else that provides evidence of the claimant's substandard and incomplete work and the damage he has caused to your property (together with an estimate of the cost of putting all that right), then you really do need some kind of "expert" report that explains all that to the court and which you can submit as evidence.

 

Whether you have time to get that now within the deadline, I simply don't know, but if I were you I think I'd be talking to my structural surveyor/engineer ASAP, or getting a quote from another builder.  Or is the document you posted earlier from Hale Surveys Ltd meant to be that expert report?  We simply don't know - we have to rely on you to tell us and to explain what the different documents are.

 

Honeybee may have some comments or might be able to get other members of the site team interested in the thread. 

 

[Edit:  Ah! cross-posted with others.  I see Andyorch and FTMDave are interested as well as Honeybee.  Good.]

 

I don't know the answer to this but, thinking about it, I suppose you don't actually need an expert report to meet the deadline for submission of your defence and counterclaim, but you will need it to refer to in your witness statement and/or evidence bundle?

 

Am I right anyone?

Edited January 12, 2022 by Manxman in exile

[FTMDave]

Well an expert report doesn't have to be done at all, but as 16 grand is a lot of money the figure really needs to be backed up properly.

 

The problem here is that the OP has done a bit by themself, a bit with a solicitor and a bit with us at the last minute.  Really an expert report should have been obtained in the early stages of the dispute with the builder before litigation had begun.

 

So if the report can be done by 24 January, good, if not the best will be made of a bad job and it will go in the WS.  I damn hope it comes to 16 grand.  So, for the OP

 

1.  Draft of defence.

 

2.  Draft of counter claim.

 

3.  Try to get an expert report ASAP.

[AndyOrch]

Quote

Seta Side application granted, no cost awarded, but  to re-plead the defence and counterclaim, properly particularised, whether is negligence, breach of contract by the 24January

 

You dont require an expert statement at this stage...simply start again from the beginning and replead in a particularised form your defence and part 20 counter claim and submit by the date stated. Expert reports come at allocation stage when you will both have to submit a further DQ unless the judge dispenses with allocation....and lets the original DQs stand.

 

Andy

[simeon1964]

1 hour ago, Manxman in exile said:

So does that mean that your solicitor actually had an expert written report, or just that he was planning to get one done, but had not yet got round to it?  (I suspect honeybee13 is correct that "TBC" means "To be confirmed", which suggests to me that no report has actually been done...

I remember the former saying that i should wait till we go to court before I get a surveyor to give assessment of the damage and that the judge might say both parties would pay for the cost, But am not very clear on this.  

[Manxman in exile]

So - Andyorch has confirmed you don't need to have any report on the damage or valuation to put it right before you submit your defence and counterclaim.  Any requirement for reports will come later.  So that's good.

 

So for the time being you need to concentrate on drafting a comprehensive but easy to understand defence and counterclaim.  In the defence you need to explain clearly and point by point why you don't owe your builder the money he is claiming.  In your counterclaim you explain what damage he caused that you want him to pay for.  And ideally something to back up the £16000 figure you are counterclaiming.  (It might get a bit embarrassing if you get a report afterwards but it only identifies £5000 of work that needs to be redone, reimbursed and/or fixed).

 

simeon  -  another couple of points for you to think about:

 

As I understand it, the main plank of your defence is: yes, you engaged the claimant to do some building work; but he didn't complete it and what he did complete was poor quality; he also damaged your property; you had to pay a third party to do work the claimant had agreed to do but didn't; therefore you withheld the final payment due to the claimant.

 

If that is correct, what evidence do you have as to the extent and description of the work that the claimant agreed to do for you?  Was it clear that the underpinning/piling work you had to pay a third party to do was something that the claimant should have done under your agreement?  Have you got anything in writing or was it just a spoken agreement?  If he was working from plans and drawings provided by your structural angineer/surveyor, have you got those plans and drawings?

 

And - sorry to harp on about this - when you and your legal friend came up with a counterclaim figure of £16k, it must have been based on something and not just internet estimates, I hope.  What was it?

 

Also - and I thought I saw this mentioned by FTMDave, or Andyorch, or honeybee13 - if you win your counterclaim, do you think your builder can pay you?  Didn't he plead poverty after the default judgment?  I'm only saying this to warn you that you might end up in the truly awful position of winning the case, but not being able to enforce judgment.  Not that you can do much about that now...

 

Good luck.

[simeon1964]

I was suggesting to my previous solicitor to ask the court for security against my counterclaim or put charge on his house if he was to to go for set aside, he kind of dismissed it. 

 

The new defence more"

1.      In this Defence:

 

a.       References to the paragraph numbers are in reference to the paragraphs in the Particulars of Claim issued on the 25 February 2021.

 

b.      A matter that is not admitted is a matter which the defendant is unable to admit or deny and requires the claimant to prove.

 

c.       The defendant adopts where appropriate the abbreviations and terms in the Particulars of Claim for convenience only and without making any admissions thereby.

 

2.      The defendant admits paragraph 3.1 of the claimants claim.

 

3.      The defendant denies paragraph 3.2 of the claimants claim. The true agreement between the parties involved the defendant and claimant agreeing that the claimant would undertake building work at the defendant’s property in relation to 3 specific areas. These were; and named Project 1

 

a. To underpin the bay window at the property,

b. To repair a previously removed chimney breast and,

c. To install a new beam to the patio door

 

4.      During the process of the contract agreement above the claimant was also engaged on further work to do the attached on the 07/09/2020 for total amount of £2,580.00 called project 2.

 

5.      In relation to the installation of a new beam and the above this work was agreed between the parties to be carried out under the instructions of a structural engineer engaged by the defendant. It was agreed between the parties that the claimants work would be as a result of instructions received following the structural engineers assessment of the property.

 

6.      Between June and July 2020 the defendant provided the claimant with a full copy of the structural engineers report which detailed instructions to the claimant on the works to be carried out.

 

7.      It was agreed between the parties that the works would commence on 13 August 2020.

 

8.      It was agreed between the parties that the total sum for the completion of all the claimants work would be £4300 called project 1

 

9.      It was agreed between the parties that the claimant’s fees for the work would be paid through three instalment payments. The first payment would be made on the start of the claimants work. The second payment would be paid at the halfway point of the claimants work. The final payment would be made on completion of the total works. As such three payments were to be made each of £1433.33.

 

10.   The builder arrived at arrived at work 2pm 13/08/2020 when a contract agreement was drawn up. A cheque was issued on the day and worked for two hours, the following day was Friday, he came in at 2pm don’t work weekends

 

11.   On the 24^th August the builder approached me to book appointment with the building inspector to inspect his work as the work was getting midway and that he would need mid-way agreement money, I obliged and second cheque was issued. This was barely two weeks of work about 25hrs of work time in the property, attached is my diary of his work. Appointment confirmed with building control and builder informed

 

12.  The building inspector showed up and the builder having promised to be there was absent. “But he knew I was coming,” while the inspector went about inspection of the builder’s work and making comment in anger and others comment that were alien to me, I knew I would not be able to translate all the information to the builder so I called the builder and pass the phone to the Building inspector.  All I was hearing from the inspector were “Do you know what you are doing, repeatedly, “why are you not here you know I was coming?” followed by describing the mode of doing the work to him. After the conversation with the builder he then asked me for a paper and he started to explain the process which I think might be useful to the builder when came. The building inspector then said he will be getting in touch with the structural engineer with his findings and I should hear from Engineer soon.

 

13.   The builder came late that afternoon and I handed him the paperwork given by the building inspector and the builder assured me he would sort it out, that he now had an idea how to go about it, to which I said the inspector would communicate with the structural engineer who will be contacting us so wait and he agreed.

 

14.  The structural engineer visited and recommended piling to complete the underpinning with full detail of the operation to both of us, the builder then says that he has not got the tools for that. “But you can hire it most people do.” There was no answer. The structural engineer then introduced another tradesman who was able to do it for £3,000.00 and I paid the tradesman for the piling.

 

15.    I then turned to my builder after payment that you are now £3,000.00 in deficit but we will sort this out after the rest of the work is complete.

 

16.  About the first week in 2^nd September he asked for more work to cover his losses having paid the £3,000.00 for underpinning to another tradesman, I did and I asked him to price the job so that we can agree the job. His quotes were outrageous, little did he know that I have had quotes from other people and the internet. e.g quoting me £1800 pounds to plaster 3 room as against another plasterer for £850.00. When I showed him Mr. Jones who is a plasterer quote, he was not shocked, I told him that, because you are on site I will pay you £900.00 final and he accepted. See attached builder quote for Project 2

 

17.   For this reasons the builder was able to get the second contract from me for the amount of £2,580.00 signed 07/09/2020 which I called Project 2, being, I believe the only way I can compromise the £3,000.00 paid to the tradesman. Again the contract agreement was identical to the initial contract for £4,300.00 (Project 1)

 

 

18.  Both the initial project 1 and project 2 started to go pear shape and I made several complaint to him to address it but didn’t pressure him and my wife started complaining about the pointing around his job. His response to my wife was all it needed was a good wash down and this bad pointing remains so to date not washed.

 

19.  Around the 15^th/16^th Sept 2020 barely a week the builder got project 2 job, was trying to ask for money on project 2 to which I told him “No” in the present of my wife I told he cannot get any payment till work is complete because he has not finished not completed his work, he has £3,000.00 deficit he has to pay me, we have not sorted the arrangement of payment. The builder then started to be friendly or patronising by speaking in cockney to us, in east London accent to which my wife responded that “we may have come from London but we don’t speak like that. If you want money say it in plain English.” He then pleased that he would like to pay his staff and would need £2000.00. I responded to say that that’s taking nearly all the money when you are not even halfway of your job. He pleaded and promised to tidy all the snagging up. For this reason I promised to give him £2000.00 tomorrow to which he replies, No, it does have to be straight away, No rush “Friday will be ok.

 

20.  Friday the 18/09/2020 I handed a Cheque for £2,000.00 to the Builder and to my surprise, the builder who had been polite and respectful to me, threw the cheque in my face. When I asked why? “but that’s what you asked for?” What am I going to do with the bloody cheque,” but your last two payments were cheques? I want cash I will take you to the bank. I was gobsmacked, to which said I am new in this area I do not know any bank, its Covid19 period it will have to be Monday if you wanted cash, as my wife was waiting and we were going for our lunch, we had to come back to give this cheque in the middle of our lunch. I then went back into the vehicle as started to move, the Builder held on to the frame of the passenger car where my wife was siting and was shouting on the street in anger. I then stopped the car and asked him to come inside the house to resolve the issue, he declined in anger and I then decided that I will go and look for a bank to draw him the money and to meet me back at the house in an hour.  I drove 10-12miles to find a bank and drew £1500.00 short of £500.00 I originally wrote on the cheque. I quickly rushed through the contract as I don’t usually do under the steam of pressure, and because of this and the stressful state of my wife I wrote contract agreed as £2,800.00 instead of £2,580.00, but the balance at completion tells the story which was £1080 indicated at bottom. 

 

21.  We both signed the contract, the builder was gone and my wife and I then decided to go and continue our lunch when we came back we saw the builder and his mate on my CCTV camera walking away with my steel beam that came off lintel. When I rang him that I saw him on CCTV. He admitted and I told him he must bring it back as he has not done so, I reported him to structural engineer who said he would speak to him. I have now included the cost of the pair of the steel beam in my schedule of loss.  He charged me for work to which he stole my material to do the work without refund for the material used. This was the beginning of my dissatisfaction with the builder. The 18/09/2020

 

22.  On the 21/09/2020 I highlighted and sent snagging list to the builder a copy I gave to him and sent copy to his email. I believed in his response to sort out the snagging list and do a good job but later realised that his he had different agenda and attitude to do my work waned. On the 26/10/2020, he sent somebody to my house to clean up plaster damage to the wall and living room laminated flooring almost four weeks since he last worked on the house and took his last payment of £1500.00, this errand made a mess of the job.  I then updated snagging list gave a copy to his errand boy who was doing the cleaning to give to him and emailed him a copy and sent copies by post to his address.

 

23.  The next contact with the builder was when I came back from the Hospital on the 12/01/2020 when I saw a note in the door demanding £2,800.00 to which I immediately responded in my letter dated 17/01/2021 for him to explain how I owe the amount so that I can deal with his claim. As I have no response from him on the 05/02/2021 I sent him a recorded delivery pre action notice.

 

24.  The builder then acknowledged my pre-action by send me notice to pay pay £2,866 by 26/02/2021 otherwise he would take me to court. I therefore waited for his court claim to defend and counterclaim.

 

25.  The builder court notice arrived and this was the beginning of assessing the cost of the damages and uncompleted work of the builders, by inviting the tradesmen to come to the property to assess and give me quotes. More information was also sorted from the internet. Where I am not able to get accurate or tradesmen to give me a quote I have left it as blank or TBA (to be assessed).on my schedule of loss, attached to this statement.

 

Counterclaim

 

26.  The Defendant repeats paragraphs 1 to 13 above.

 

27.  By reasons of those matters the defendant has suffered a financial loss detailed in paragraphs 11 and 12 and the attach schedule of loss.

 

 

PARTICULARS OF LOSS

 

Remedial works                                                                                              £16577.12

 

[AndyOrch]

You will have to add a little more detail/breakdown to the counter claim to quantify loss...don't forget to request interest also section 69 @ 8% 

 

[Manxman in exile]

@simeon1964   -  OK.  Well that looks like a good starting point for a defence.  Note I say a "starting point" - I think it still needs a lot of work but well done.  For the first time I feel like I'm beginning to understand what has happened.

 

The first dozen or so numbered points of the defence read quite well and can be understood.  But the second half of the defence gets a bit confusing and muddled again.  It tends to degenerate into:  "He said 'xxx' and I said 'yyy' and my wife said 'ZZZ'".  I think you need to try to cut out the points of dialogue and detailed descriptions (keep them for your witness ststement?) and try to stick to a clear but concise statement of what happened, explaining why you should not pay his claim.

 

I agree with Andyorch about needing much more explanation of the counterclaim.

 

At the moment you are basically saying:

 

"Defence

 

I'm not liable to pay the £2800 claimed from the agreed fee because the claimant (a) did not complete the agreed work, so (b) I had to pay somebody else to do the work. and (c) he also damaged my property"

 

Which is generally OK.  But then you go on:

 

"Counterclaim

 

The claimant damaged my property and I'm claiming £16k for that".

 

That's not OK because how does the court know it will cost £16k to put right as opposed to - for example - just £3000?  You need to provide the court with something concrete to back up the figure of £16000.

[simeon1964]

I  suggested to my previous solicitor to ask the court for security against my counterclaim or put charge on his house if he was to to go for set aside, he kind of dismissed it. What are your opinion on this?

[Manxman in exile]

I do not feel qualified to have an opinion on that question.

 

See what others think...

[AndyOrch]

13 minutes ago, simeon1964 said:

I  suggested to my previous solicitor to ask the court for security against my counterclaim or put charge on his house if he was to to go for set aside, he kind of dismissed it. What are your opinion on this?

 

Yes its fine but it does not guarantee you your money you may have to wait years.(if a restriction K) and still not be paid or..assuming his house is mortgaged and in his name only and should you wish to force sale

[simeon1964]

What about leaving cash deposit of at least half sum of the claim should he loses. 

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

[AndyOrch]

I don't follow...again please in simple full paragraph

[simeon1964]

8 minutes ago, simeon1964 said:

What about leaving cash deposit of at least half sum of the claim should he loses. 

There have been instances where the court asks for substantial amount of money to be deposited to the court as security against losing the case, can this  be applicable in this situation of mine?