Flaws in Defence counterclaim Help

[AndyOrch]

That's with regards to security of costs ?...not being unable to pay your judgment.

 

Further information

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part25

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part37/pd_part37

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part37

 

Andy

 

[FTMDave]

I've tried to tidy up the English in the defence, cut out the long-winded bits (the judge for insistence will not give a damn if the OP had his lunch interrupted) and make it flow more logically.  I'll have another go later.

 

1.  (14) is unclear. 

Who suggested hiring tools? 

When was the £3000 paid? 

Who paid, you or the builder?

 

2.  What happened between 26/10/2020 and 12/01/2021?  This is the period when everything went wrong.  Did the builder simply refuse to finish the job?

 

3.  How is the £2866 figure reached?  £1433.33 you "owe" for Project 1.  £1080 you "owe" for Project 2.  The extra £220 for Project 2 that you accidentally agreed to.  And costs/interest.  Is that right?

 

4.  Did the builder actually start Project 2?

 

 

1.      In this Defence:

 

a.       References to the paragraph numbers are in reference to the paragraphs in the Particulars of Claim issued on 25/02/2021.

 

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 claimant's 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 07/09/2020 for a 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 claimant's work would be as a result of instructions received following the structural engineer's assessment of the property.

 

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

 

7.      It was agreed between the parties that the works would commence on 13/08/2020.

 

8.      It was agreed between the parties that the total sum for the completion of all the claimant's 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 at the start of the claimant's work. The second payment would be paid at the halfway point of the claimant's 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 at 2pm on 13/08/2020 when a contract agreement was drawn up. A cheque was issued on the day and he worked for two hours.

 

11.   On 24/08/2020 the builder approached me to book an appointment with the building inspector to inspect his work as the work was approaching midway and he would need the mid-way agreement money, I obliged and a second cheque was issued. He had carried out about 25 hours of work time in the property, attached is my diary of his work. The appointment was confirmed with the building inspector and builder the informed.

 

12.  The building inspector showed up and the builder, having promised to be there, was absent.  The inspector walked around inspecting the builder’s work and making comments in anger.  I called the builder and pass the phone to the building inspector.  All I heard from the inspector was “Do you know what you are doing", repeatedly, “why are you not here you knew 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 piece of paper and he started to explain the process which might be useful to the builder when he came. The building inspector then said he would be getting in touch with the structural engineer with his findings and I should hear from the 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 would be contacting us so he should wait and he agreed.

 

14.  The structural engineer visited and recommended piling to complete the underpinning.  The builder then said that he did not have the appropriate tools for piling.  “But you can hire them 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.  On 02/09/2020 he asked for more work to cover his losses having paid the £3,000.00 for underpinning to another tradesman.  I agreed and I asked him to price the job. His quotes were outrageous.  Little did he know that I had had quotes from other people and the internet.  e.g. he quoted me £1800.00 to plaster three rooms as against another plasterer who quoted £850.00. When I showed him the plasterer's quote, he was not shocked, I told him that, because he was on site I would pay him £900.00 final and he accepted. See attached builder quote for Project 2.

 

17.   For this reasons the builder was able to obtain a second contract from me for the amount of £2,580.00 signed on 07/09/2020 which I called Project 2, being, I believe the only way I could 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 badly and I made several complaints to him, e.g. bad pointing.  His response was all it needed was a good wash down and this bad pointing remains so to date not washed.

 

19.  Around 15/09/2020 barely a week the builder had got the project 2 job, he was trying to ask for money for project 2.  After a period of negotiation I agreed to pay him £2000.00 on 18/09/2020.

 

20.  On 18/09/2020 I handed a cheque for £2,000.00 to the builder.  He insisted on payment in cash even though my previous two payments had been by cheque.  I was only able to withdraw £1500.00 which I paid him.  The atmosphere was extremely hostile and under a steam of pressure I mistakenly wrote that the contract was agreed as £2,800.00 instead of £2,580.00.  However, balance at completion was correctly indicated at £1080.00. 

 

21.  We both signed the contract.  The builder left.  Later we saw the builder and his colleague on my CCTV camera walking away with my steel beam that had come off lintel. When I rang him and told that I had seen him on CCTV he admitted what he had done. I have now included the cost of the pair of the steel beam in my schedule of loss.  He charged me for work during which he stole my material to do the work without refunding the material used. This was the beginning of my dissatisfaction with the builder.

 

22.  On 21/09/2020 I highlighted and sent a snagging list to the builder.  On 26/10/2020, he sent somebody to my house to clean up plaster damage to the wall and to the living room laminated flooring almost four weeks since he had last worked on the house.  The person he sent made a mess of the job.  I then updated the snagging list and gave a copy to his colleague 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 on 12/01/2020 when I saw a note on 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 had no response from him on 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's court notice arrived and this was the beginning of assessing the cost of the damage and uncompleted work by the builder, by inviting 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 information 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

[Manxman in exile]

@FTMDave  -  Yikes!  I like that.  How much effort have you put into that?  You've turned a dog's breakfast into haute cuisine...

 

Even if @simeon1964 gets no more suggestions that's his defence there.

 

Re your questions regarding para 14, I think it was simeon who suggested to the claimant that the claimant hired the necessary tools for the underpinning etc.  Nada from the claimant.  Dunno about your other questions.

 

The only thing I'm wondering (and please bear in mind what I said earlier that I have absoluely zero practical knowledge of court processes and procedure) is whether some of the detailed points in the defence would be better in simeon's witness statement rather than in the defence?   Sort of a bit less is a bit better?  Certainly I'm in no way criticising what you've put together above, I simply don't know what needs to go where.  Everything you've drafted above is required and needs to be incuded somewhere or other.

 

I think it's justifying the amount of the counterclaim that is going to be the difficult part for simeon...

Edited January 15, 2022 by Manxman in exile

[simeon1964]

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. (I believe is confused with the term underpinning)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. Contract agreement attached exh1

 

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.      The claimant was also engaged weeks after the above contract, (Project 1) began. Additional work was agreed on the 07/09/2020 for total amount of £2,580.00, this was called project 2. The terms of which is later explained in this defence and counterclaim. The contract agreement attached Exh.2

 

5.      In relation to the two projects and the above agreement it 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 work be carried out at the property.

 

6.      Sometimes in June 2020 the defendant provided the claimant with a full copy of the structural engineer’s drawings and report on his first visit to evaluate the work which detailed instructions to the claimant on the works to be carried out.

 

7.      It was agreed between the parties that the works on project-1, would commence on 13 August 2020.

 

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

 

9.      It was agreed between the parties that the claimant’s fees for project-1 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 project. As such three payments were to be made each of £1,433.33.

 

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. The claimant worked for two hours, the following day was Friday, he came in at 2pm-4pm and 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 on the property, attached is my diary of claimant’s work period. The appointment for building inspector was confirmed with building control and builder was informed.

 

12.  The building inspector showed up and the claimant having promised to be there was absent. “But he knew I was coming asked the inspector” 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 to speak to the inspector.  All I heard 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 process of doing the work to the claimant. After the conversation with the builder the inspector asked defendant for writing pad and explained the process of the job which was passed to the claimant. The building inspector promised to contact the structural engineer with his findings, who will contact us.(claimant and defendant)

 

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 what to do, I responded that the inspector would communicate with the structural engineer who will be contacting us of what to do next.

 

14.  The structural engineer visited the site 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 the job. “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. While we were negotiating the claimant had asked me to ask the operator for discount. The underpinning was completed and I paid the tradesman for the piling.

 

15.   I then turned to the claimant after payment that you are now £3,000.00 in deficit but we will sort this out after the rest of the claimant’s 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, reference Para 4, 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 £1,800 pounds to plaster 3 rooms as against another plasterer for £850.00. When I showed him of Mr. Jones’s quote who is a plasterer, the claimant was not shocked/surprised, I told him that, because you are already on site, I will pay you £900.00 as final and he accepted. See attached builder quote in his hand writing 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 already paid to the tradesman for the work he was to do. Again the contract agreement was identical to the initial contract for (Project 1) Para.4 D/counterclaim.

 

 

18.  Both the initial project 1 and project 2 started to go pear shape and I made several complaint to the claimant to address it but I didn’t pressure him and my wife started complaining about the pointing around his job. His response was all it needed was a good wash down and this bad pointing remains same to date and never washed down

 

19.  Around the 15^th/16^th Sept 2020 barely a week the builder got project 2 job, the claimant was trying to ask for money on project 2 to which I told him “No” in the present of my wife, I told the claimant no payment till work is complete because he has not finished nor completed his work, he has £3,000.00 deficit he has to paid back, and that we have not sorted the arrangement of the payment. The builder then started to be friendly or patronising by speaking in cockney to us, (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 pleaded that he would like to pay his staff and would need £2,000.00. I responded to say that that’s taking nearly all the money before the project is finished, when you are not even halfway of your job. The claimant pleaded and promised to tidy all the snagging up. For this reason I promised to give him £2,000.00 the next day, to which he replies, No 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, but to my surprise, the builder who had been polite and respectful to me, insulted me and 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,” he replied, but your last two payments were cheques? I want cash I will take you to the bank. I was gobsmacked, to which I said I am new in this area I do not know any bank, and its Covid19 period it will have to be Monday if you wanted cash, as my wife was waiting and we were going for lunch, we had to come back to give you this cheque in the middle of our lunch. I 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 of the payment note. 

 

21.  We both signed the payment note, the builder was gone and my wife and I decided to go and continue our lunch when we came back we saw the builder and his mate on my CCTV camera carrying away with my steel beam that came off lintel patio door. 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.  Exh.. 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 him when he said he will sort out the snagging list and do a good job but later I realised that he had different agenda. The claimant attitude to do my work waned. On the 26/10/2020, he sent somebody to my house to clean up all 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 £1,500.00. This errand boy of the claimant made a mess of the job.  I then updated the 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.

 

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 letter only to send me notice to 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. The claimant is confused, first it was £2,800.00 in his undated note, of 12/01/2021, then £2866.66 in his claim, when the disputed outstanding balance was £2,501.00.

 

25.  The builder court notice arrived and this was the beginning of assessing the cost of the damaged, damages and uncompleted work of the claimant, 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 have not been able to get accurate figure 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.

 

26.  The total agreed fee for both Project1&2 were £4,300 and £2,580 respectively totalling £6,880.00 of which £4366.33 was paid to the claimant. I not liable to pay the £2513.00 from the agreed fee, neither I am I to pay £2,800.00, £2,866.66 which wrongly filed, because the claimant (a) did not complete the agreed work, (b) I had to pay somebody else to do the work for £3,462.12 (c) the claimant  also damaged my property"

 

Counterclaim

 

27.  The claimant damaged my property and left the contract uncompleted, I'm claiming £13,095.12 damages, stolen items and £3,462.12 (£3,000.00 underpinning+£462.12 for rubble truck receipt att.). Totalling, £16,577.12

 

28.  The defendant also claim loss of rental income to date on the spare rooms and aggravated stress, living with rodent resulting from defendant creating opening on the floor of the living room making the house completely un inhabitable environment surrounded by exposed electrical cable which were tampered with during course of plastering the rooms.  See att. Doc

 

29.  The Defendant repeats paragraphs 1 to 13 above.

 

30.  By reasons of those matters the defendant has suffered a financial loss detailed in paragraphs 11 and 12 and the attach schedule of loss. Decline health as a result of the state of the property.

 

 

PARTICULARS OF LOSS

 

Remedial works & paid services                                                                     £16577.12

Stress loss of rental income, aggravated damages (TBA)

 

TOTAL                                                                                                           £16577.12

 

31.  The Defendant therefore counterclaims from the claimant damages in respect of the above.

 

32.  The Defendant claims interest pursuant to section 69 of the County Courts act 1984 on damages awarded at such rates and for such periods as the courts think fit.

 

AND THE DEFENDANT COUNTERCLAIMS:

 

(a)    Damages under paragraph 17 above

 

(b)   Interest on the paragraphs 18 above.

[FTMDave]

Can you tell us what you have changed in this new version., otherwise we have to guess or spend ages reading through a huge wall of text.

 

Also can you also answer the questions at the start of past 30?

 

We tried to correct the English and make the defence more presentable to the judge, yet here you have gone back to the version full of mistakes.  Do you want us to correct the English and make it more understandable for the judge, or not?

[Manxman in exile]

I'm having the same difficulty working out why @simeon1964 posted #32 without any explanation (again!) as to why it was posted.

[simeon1964]

11 hours ago, FTMDave said:

We tried to correct the English and make the defence more presentable to the judge, yet here you have gone back to the version full of mistakes.  Do you want us to correct the English and make it more understandable for the judge, or not?

 

Yes I do want the grammar to get sorted. There was overlap between my last post and yours. Some of the questions you asked from your post was contained in my last post. I sent that as full detail for now.

[honeybee13]

But why have you gone back to the original version and not used FTMDave's, Simeon?

 

If you're posting answers to his questions, it might be better to copy and paste the questions and answers into a new post rather then amend the draft defence.

 

HB

[simeon1964]

On 16/01/2022 at 20:25, FTMDave said:

Also can you also answer the questions at the start of past 30?

This paragraph 30  is from old Defence counterclaim, just copied directly onto the new D/C will check the relevance because the paragraphs have now changed a lot.

 

On 15/01/2022 at 13:40, FTMDave said:

(14) is unclear. 

Who suggested hiring tools? 

When was the £3000 paid? 

Who paid, you or the builder?

(14) The structural Engineer visited to give instruction,  that Piling, is required and the builder didn't have tools for it .

He suggested hiring the tool for it.

£3000.00 was paid between 20th and 24 September 2020

The defendant paid it.

 

On 17/01/2022 at 08:28, simeon1964 said:

This paragraph 30  is from old Defence counterclaim, just copied directly onto the new D/C will check the relevance because the paragraphs have now changed a lot.

This applies to paragraph 31 as well. Not that I a have full understanding of the meaning. 

 

On 17/01/2022 at 08:50, simeon1964 said:

This applies to paragraph 31 as well. Not that I a have full understanding of the meaning. 

MTFDAVE: Sorry mixed up with Paragraphs 30&31  regarding health issues. This is only if this is applicable this my inclusion and part from the initial D/c

26/10/2020 to 12/01/2021.  The last i heard was 26/10/2020 and November  I went for my surgery to come back 12/01/2021

(3.)The total agreed fee for both Project1&2 were £4,300 and £2,580 respectively totalling £6,880.00 of which £4366.33 was paid to the claimant. I not liable to pay the £2513.00 from the agreed fee, neither I am I to pay £2800.00, £2866.66 which claimant wrongly filed

(4) Claimant started project 2 on the 07/09/2020

[FTMDave]

OK, thanks for clearing all that up.  I realise that time is moving on so I'll post a new version late this evening when I finish work.

 

It's still unclear to me how the relationship between you and the builder broke down.

 

21 September, you sent the snagging list.

He then disappeared till 26 October, when his errand boy came, made a mess of the work, and you e-mailed him again.

He then disappeared till 21 January when he left a note on your door demanding payment.

You were in hospital for a period but your wife was at home.

You refused to pay the last amounts for Project 1 and Project 2 simply because he hadn't finished the work.

 

Is this right?

 

Do you have any evidence by mail/message/phone call made that he refused to finish the two projects?

 

I think we also need to see the mails you sent him from 21 September onwards.

[Manxman in exile]

@simeon1964  -  regardless of what @FTMDave drafts for you later this evening, you still appear to have made no attempt in #32 to explain how you have arrived at the counterclaim value of £16500.  All you seem to have added to your previous draft is this:

 

On 15/01/2022 at 17:37, simeon1964 said:

 

Stress loss of rental income, aggravated damages (TBA)

 

TOTAL                                                                                                           £16577.12

 

31.  The Defendant therefore counterclaims from the claimant damages in respect of the above.

 

32.  The Defendant claims interest pursuant to section 69 of the County Courts act 1984 on damages awarded at such rates and for such periods as the courts think fit.

 

AND THE DEFENDANT COUNTERCLAIMS:

 

(a)    Damages under paragraph 17 above

 

(b)   Interest on the paragraphs 18 above.

 

 

I'm afraid that does not advance your counterclaim at all.  What you need is a detailed breakdown of the £16500.

 

As I understand it, all you have (or at least all I've seen) is a list on unheaded notepaper of alleged snagging together with a second list, also on unheaded notepaper, of alleged remedial work.  All you appear to have is a wish list with no substance.  (Yes - you've also provided a couple of photos of small cracks in plaster and some missing floorboards, but those won't cost £16500 to put right, will they?)

 

Put yourself in the judge's position.

 

You are trying to persuade the judge to order the claimant to pay you £16500.  The judge is going to ask themselves - and you too probably - WHY the claimant should be made to pay you £16500.  So when the judge asks you that question, what are you going to say?  Just producing a couple of lists of things is not going to work, you have to explain to the judge where the £16500 comes from and why the claimant is legally liable for it.

 

That means that you need to demonstrate two things in your counterclaim: first, that the claimant caused the damage that you are going to spend £16500 fixing.  Unless you can prove that the claimant caused the alleged damage, the judge will not make them pay you.

 

Second, you need to provide evidence that the remedial work will actually cost £16500 or whatever you are claiming.  Are you saying that you have nothing in the way of estimates or quotes on headed notepaper that show the damage will cost £16k to fix?  You can't just pluck a figure out of thin air.  It has to be supported by evidence.

 

(Also when I say "alleged" damage, I'm not doubting you, but you need to provide evidence that the damage actually exists - and was caused by the claimant - and isn't just work that needs doing to your house that you've decided to try to make the claimant pay for.  Do you see?)

 

Also - and I pointed this out in the other thread - when you make a post here can you please explain at the beginning of the post (1) what it is, and (2) why you are posting it?  I know Honeybee and FTMDave have pointed this out too.  None of us are mindreaders.  If you fail to introduce your posts properly, none of us has a clue what you are talking about.  Are you producing a draft for comment?  Are you answering a question?  Are you asking a question?  Is it a copy of something you have received?  If you can't explain your posts, nobody can help you...

 

[Edit:  I know FTMDave did say some posts ago that if you have no evidence to support the £16500 counterclaim at the moment then, OK, we are where we are and you will just have to run with it.  But if you have some evidence or a breakdown of the amount at this stage thenit would be nice to know.  If you can't get the required detail in your counterclaim you need to ensure you have something for your WS... ]

Edited January 17, 2022 by Manxman in exile

[FTMDave]

I agree with MiE, and the draft can't really be improved until the questions in post 41 re the breakdown in the working relationship with the builder are answered.

[simeon1964]

14 hours ago, FTMDave said:

Do you have any evidence by mail/message/phone call made that he refused to finish the two projects?

Yes I do have evidence that he has not finished the work and letters of protestation to come and finished and there occasion he flooded my house my central heating broke down and let me in the cold  for almost a week. Just too much to say. 21september was snagging list and this again was updated on the 26 when the errand boy came.

I probably would need a quantity surveyor to come and evaluate the unfinished project.

[FTMDave]

7 hours ago, simeon1964 said:

Yes I do have evidence that he has not finished the work and letters of protestation to come and finished

So - can we see them?

 

The 24th is getting nearer and nearer, and so far your defence is full of background information about how you set up the work with the builder and contains absolutely nothing about the real issue of the builder refusing to finish the work and you therefore being justified in not paying him.

 

 

Edited January 18, 2022 by FTMDave
Typo

[simeon1964]

Possible to ask court for Extension of time the claimant solicitor not responding to it. He was asking why I didn't reply his previous mail.

CAg Order TenJan.pdf

[honeybee13]

Should there be a word in front of possible, Simeon? I'm not sure what you're asking. 

 

HB

[Manxman in exile]

On 18/01/2022 at 10:08, FTMDave said:

So - can we see them?

 

The 24th is getting nearer and nearer, and so far your defence is full of background information about how you set up the work with the builder and contains absolutely nothing about the real issue of the builder refusing to finish the work and you therefore being justified in not paying him.

 

I agree with all that.

 

Can I just add that I've gone through the defence again and tried to make a bit more sense of it - and perhaps try to address or skip over some of the questions asked by FTMDave.

 

Can I make clear I am not criticising what FTMDave has already done - I think that was a great job.  It's just that I have found the OP's explanations still very unclear and difficult to understand so I've tried to make more sense of it.  If what I've done is just making the whole thing more complicated and confusing then by all means ignore it.

 

Bits I suggest deleting altogether are struck through.  eg this

 

Bits in red are my suggestions/improvements.  (Or maybe they make things worse!)

 

Bits in blue and bold are my questions.

 

Whether this is really an improvement or not I don't know.  Feel free to ignore...

 

===============================================================================

 

1.      In this Defence:

 

a.       References to the paragraph numbers are in reference to the paragraphs in the Particulars of Claim issued on 25/02/2021.

 

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 claimant's claim. The true agreement between the parties involved the defendant and claimant agreeing that the claimant would undertake building work (Project 1) 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   Subsequently the claimant was also engaged on further work to do the attached on 07/09/2020 for a 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  It was agreed between the claimant and the defendant that Project 1 was to be carried out under the instructions of a structural engineer engaged by the defendant. It was agreed between the parties that the claimant's work would be as a result of instructions received following the structural engineer's assessment of the property.

 

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

 

7.      It was agreed between the parties that the works would commence on 13/08/2020.

 

8.      It was agreed between the parties that the total sum for the completion of all the claimant's work regarding Project 1 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 at the start of the claimant's work. The second payment would be paid at the halfway point of the claimant's 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 at 2pm on 13/08/2020 when a contract agreement was drawn up. A cheque for the first payment was issued on the day and he worked for two hours.

 

11.   On 24/08/2020 the builder approached me to book an appointment with the building inspector to inspect his work as the work was approaching midway and he would need the mid-way agreement money, I obliged and a second cheque was issued. He had carried out about 25 hours of work time in the property, attached is my diary of his work. The appointment was confirmed with the building inspector and builder the informed.

 

12.  The building inspector showed up and but the builder, having promised to be there, was absent.  The inspector walked around inspecting inspected the builder’s work and making comments in anger was obviously displeased by the standard of work.  I called the builder and pass the phone to the building inspector.  All I heard from the inspector was “Do you know what you are doing", repeatedly, “why are you not here you knew 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 piece of paper and he started to explain the process which might be useful to the builder when he came.  The inspector spoke to the builder by telephone, asking him why he was absent and questioning him about the work he had done.  The inspector then gave him some instructions over the telephone also and left a list of instructions with the defendant to be passed on to the builder.  The building inspector then said he would be getting in touch with the structural engineer with his findings and the defendant should hear from the 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 would be contacting us so he should wait and he agreed.

 

14.  The structural engineer visited and recommended piling to complete the underpinning.  The builder then said that he did not have the appropriate tools for piling.  It was suggested to him that tools could be hired, but he did not respond. “But you can hire them 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 that tradesman to do the piling.

 

15.    The defendant explained to the claimant that that £3000 would have to be deducted from the agreed price for Project 1 as that work had originally been agreed in that project.  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.  [Is all of that true?  I don’t know.  Is there evidence it was included in Project 1?]

 

16.  On 02/09/2020 he the claimant asked for more work to cover his losses having paid lost the £3,000.00 for underpinning to another tradesman.  I agreed and I asked him to price the job. His quotes were outrageous.  Little did he know that I had had quotes from other people and the internet.  e.g. he quoted me £1800.00 to plaster three rooms as against another plasterer who quoted £850.00. When I showed him the plasterer's quote, he was not shocked, I told him that, because he was on site I would pay him £900.00 final and he accepted. See attached builder quote for Project 2.  [I think that is all waffle and I don’t understand it]

 

16.  The claimant asked if the defendant needed any more work to be done and, despite the problems encountered on Project1, the defendant agreed on 7 September 2020 to have more work done (Project 2) at an agreed price of £2580.

 

17.   For this reasons the builder was able to obtain a second contract from me for the amount of £2,580.00 signed on 07/09/2020 which I called Project 2, being, I believe the only way I could 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).   [I don’t understand this paragraph.  Delete it?]

 

18 17.  Both the initial project 1 and project 2 started to go badly and I made several complaints to him, e.g. bad pointing.  His response was all it needed was a good wash down and this bad pointing remains so to date not washed.  As work commenced on Project 2 and continued on the remaining work for Project 1, the defendant had occasion to make several complaints to the claimant regarding the standard of work

 

19.  18.  Around 15/09/2020 barely a week the builder had got the project 2 job, he was trying to ask for money for project 2.  Barely a week after starting on Project 2, the claimant demanded payment.  After a period of negotiation I agreed to pay him £2000.00 on 18/09/2020. 

 

20.  On 18/09/2020 I handed a cheque for £2,000.00 to the builder.  He insisted on payment in cash even though my previous two payments had been by cheque.  I was only able to withdraw £1500.00 which I paid him.  The atmosphere was extremely hostile and under a steam of pressure I mistakenly wrote that the contract was agreed as £2,800.00 instead of £2,580.00.  However, balance at completion was correctly indicated at £1080.00. 

 [Way too complicated to follow.  Delete?]

 

 19.  I paid the claimant £1500 in cash.  We agreed that this left a balance outstanding on Project 2 of £1080.

 

21.  We both signed the contract.  The builder left.  Later we saw the builder and his colleague on my CCTV camera walking away with my steel beam that had come off lintel. When I rang him and told that I had seen him on CCTV he admitted what he had done. I have now included the cost of the pair of the steel beam in my schedule of loss.  He charged me for work during which he stole my material to do the work without refunding the material used. This was the beginning of my dissatisfaction with the builder.

 

20.  It came to the defendant’s attention that the claimant had removed material (including a steel beam) from the defendant’s property that the defendant is clear either belonged to the defendant or had been paid for by the defendant in connection with Project 1.  When challenged the claimant admitted he had done this.  The defendant has included the value of this material in his counterclaim detailed below.

 

22.  21.  On 21/09/2020 I highlighted and sent a snagging list to the builder.  On 26/10/2020, he sent somebody to my house to clean up plaster damage to the wall and to the living room laminated flooring almost four weeks since he had last worked on the house.  The person he sent made a mess of the job.  I then updated the snagging list and gave a copy to his colleague who was doing the cleaning to give to him and emailed him a copy and sent copies by post to his address.  Over a month later he sent an employee to attend to this work.  It was not carried out satisfactorily and resulted in an updated snagging list being sent to the claimant

 

23.  22.  The next contact with the builder was on 12/01/2020 when I saw a note on the door demanding  he demanded 2,800.00. to which I immediately responded in my letter dated 17/01/2021 for asking him to explain how I owed the that amount as all that had been agreed as outstanding on Project 2 was £1080. so that I can deal with his claim. As I had no response from him on 05/02/2021 I sent him a recorded delivery pre-action notice.

 

24.  23.  The claimant builder then acknowledged my pre-action notice by sending 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's court notice arrived and this was the beginning of assessing the cost of the damage and uncompleted work by the builder, by inviting 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 information 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.  [Is this relevant here  Delete]

 

24.  For the above reasons the defendant denies the claimant’s claim and seeks to make the counterclaim detailed below.   [Does that seem right?  I don’t know?]

 

And if anybody thinks it's worth the effort I can go through that and make it clearer to read by taking out the strike throughs and the coloured formats so that it reads as intended and is less confusing.  That would be later today or tomorrow am.

 

I might also add something like "For the reasons above - ie that the work carried out by the claimant was unsatisfactory and incomplete and because of monies already paid to the claimant - the defendant denies the claim.  Furthermore, the defendant seeks to counterclaim against the claimant for damage caused to the defnedant's property by the claimant"

 

I'm not suggesting anything I've put forward is perfect or necessarily better that FTMDave's suggestion.  But perhaps it will serve as a backup if nothing better turns up?

 

On 18/01/2022 at 12:51, simeon1964 said:

Possible to ask court for Extension of time the claimant solicitor not responding to it. He was asking why I didn't reply his previous mail.

CAg Order TenJan.pdf 289.94 kB · 0 downloads

 

I thought you said that the order asked for you to submit a re-drafted defence and counterclaim?  Isn't that order just asking you to re-draft your counterclaim only, and for the claimant to draft a defence to your counterclaim?

 

Is the order only asking for a re-drafted counterclaim from you?

 

(I'm going out now for the rest of the afternoon... )

 

On 18/01/2022 at 13:40, simeon1964 said:

Sorry, Is it possible to ask the court for an extension? I see that I still need to do more on this, i.e supporting the claim

 

We've been telling you that!

[simeon1964]

29 minutes ago, honeybee13 said:

Should there be a word in front of possible, Simeon? I'm not sure what you're asking. 

 

Sorry, Is it possible to ask the court for an extension? I see that I still need to do more on this, i.e supporting the claim

[FTMDave]

Very quickly as I'm at work.

 

1.  I've read through about 75% of the massive work that Manxman in Exile has put in and I agree with it all, it makes the defence much clearer.

2.  I had intended to do some work myself last night in particular to separate refernces to Project 1 and Project 2, but ...

3.  ... unless simeon1964 explains, with copies of the correspondence, how the relationship with the builder broke down, then IMO we are at an impasse.  The defence does not defend the substance of the builder's claim.

4.  I have no idea if it's possible to get more time from the court, but I'll flag this up to the Site Team.

5.  From a quick read it seems that the order asks to redraft only the counterclaim and presumably the builder lost his claim for the £2866.

[AndyOrch]

Yes its possible to request an extension but it will cost an application and fee...and in reality of this matter and the length of time its being going on it shouldn't really be required...if your not ready by now you should never have counterclaimed in the first place.

 

As to the order it is now clear...we are only dealing with your counter claim (Part 20 Claimant)..the claimants claim was struck out...that's gone.

 

 

 

.

[simeon1964]

1 hour ago, Manxman in exile said:

I thought you said that the order asked for you to submit a re-drafted defence and counterclaim?  Isn't that order just asking you to re-draft your counterclaim only, and for the claimant to draft a defence to your counterclaim?

 

Is the order only asking for a re-drafted counterclaim from you?

 

I am sorry to say that I didn't remember everything at the hearing . It was too much for me. First it was announced that it will be criminal offence to record and when  the Judge started to give the orders i didn't remember to write things down. I have read my old defence, needs tidy up.   I think we should go by the orders say. I Wonder if I can amend the defence or ask the court in an application? 

[FTMDave]

Please understand what Andy is saying.  There were two parts to your court battle.

 

(1)  The builder's claim for £2866.

 

(2)  Your counterclaim for £16,500.

 

You have won regarding (1).  The judge didn't reinstate the claim.  No defence is needed.  Great result for you.  Well done.

 

It is (2) where the judge has ordered a rematch.  So please redraft What Manxman in Exile has prepared in post 48 into a counterclaim.  That is what you now need to do.

Edited January 18, 2022 by FTMDave
Typo

[simeon1964]

1 hour ago, FTMDave said:

You have won regarding (1).  The judge didn't reinstate the claim.  No defence is needed.  Great result for you.  Well done.

Thank you didn't understand all that before. I had to order for this order today by phone to come through my email. cost me tenner and a bit

[Manxman in exile]

I really don't want to make this any more complicated than it is already, but can I ask a really stupid question?

 

3 hours ago, Andyorch said:

... As to the order it is now clear...we are only dealing with your counter claim (Part 20 Claimant)..the claimants claim was struck out...that's gone.

.

 

1 hour ago, FTMDave said:

Please understand what Andy is saying.  There were two parts to your court battle.

 

(1)  The builder's claim for £2866.

 

(2)  Your counterclaim for £16,500.

 

You have won regarding (1).  The judge didn't reinstate the claim.  No defence is needed.  Great result for you.  Well done.

 

It is (2) where the judge has ordered a rematch.  So please redraft What Manxman in Exile has prepared in post 48 into a counterclaim.  That is what you now need to do.

 

Is it absolutely 100% clear that the judge has chucked out the builder's claim for £2866 and that no more work is required on the defence to that?  I'd just like to be certain that it's not the case that the original claim is still extant and is to be heard by the court, but that neither the claimant nor the defendant are permitted to change what they've already submitted to the court in respect of that original claim. (Does that make sense?  It's just that it's not as clear to me as it obviously is to Andyorch and FTMDave that the original claim from the builder is now dead.  But no doubt that is due to my lack of understanding!)

 

@simeon1964 - if Andyorch's interpretation of that order is correct (and his interpretation will always be better than mine!) then all you really need to concentrate on is justifying your counterclaim for £16000.

 

To do that you will need to demonstrate to the court several things: (1) that work you have already paid the claimant for was never completed by the claimant, and the value of that uncompleted work; (2) that damage you are claiming for actually exists; (3) that that damage was caused by the builder;  (4) that the builder caused that damage in such a way that he is legally liable to put it right (eg he carried the work out negligently); and (5) the cost of putting that damage right.

 

Can you do all that?

 

(If anybody else thinks I've got that wrong or that I'm telling simeon the wrong things to concentrate on - shout out and tell him!!!)

[AndyOrch]

If you refer to the order...nowhere is there any reference to original claim. A claim was submitted and a defence was submitted along with a part 20 counter claim. Simeon1964 will have to refresh us what was the outcome at that stage and was the original claim stayed... struck out or withdrawn or discontinued whatever......there is no reference to original claim in this or the original topic. Only that a counter a claim was submitted and the claimant failed to respond to the counter claim hence the Judgment.

 

The order refers at point 1.

The claimant is given relief from sanctions of the order of DJ Moss of 19th July 2021 (what the sanctions were I surmise the judgment of the Part 20 counter claim and failing to submit a defence) because the judgment of that same date is then set a side at point 2.

 

 

.