Flaws in Defence counterclaim Help

[Manxman in exile]

I don't disagree with you.

 

Let's see what his defence is...

[simeon1964]

The condition and the state of my living is very depressing, almost two years since I moved in and almost 18 months since the builder started his unfinished repair that he self-terminated in October 2020.

 

I am living in depressing state as I cannot progress further repairs, because of the pending litigation. My finances to carry on is completely affected as I was intending to rent spare rooms from my three bedrooms property when work is complete.

 

 Should I now touch the “crime scene” carry on with my life, or wait till the case is over or get an assessor, survey to attest the cost repairs and damage before any repair.

 

This case might leave me penniless and make me more unwell and never be able to get my money back even if I win this case.

Edited January 31, 2022 by dx100uk
block of text spaced to paragraphs

[Manxman in exile]

Hi simeon  -  I sympathise with your plight but I'm not a lawyer and I don't know what advice to give to you as regards whether it would be OK for you to start on repairs now or not.

 

See what others suggest.

[FTMDave]

There is nothing stopping you starting repairs, as long as you have evidence of the damage.  So before you get an area repaired take lots of videos and photos of it.

 

It would probably be best to communicate this to the builder and maybe get an independent report and so I wouldn't do anything until the builder files his defence as you can be sure the solicitor will ramp up the attempts to unnerve you and will be an absolute pain until this point is passed.

[simeon1964]

"The copy of particularised counterclaim was what I sent you and you are sending yet again unconnected materials different to the court direction and failed to acknowledged its receipt. Below is my response to your harassment and bullying: 

   

I refer to the excessive number of phone calls and text messages that you have recently been complaining about if ever there was any phone calls or texts, as my first contact with you was 13^th of December 2021 on a recorded delivery letter dated the 9^th December. Because you did not get replies from these unsubstantiated phone calls and texts you declined to agree with me to ask the court for an extension to file papers to the court, knowing that as litigant, which was what you were pleading for your client on a set-aside application and which the court granted you but you denied me your approval to ask the court for an extension.   

  

The few days before the recent set-aside hearing, most of allegation and complains do not appear to be directly connected to the dispute between your client and myself, but to unsettle a litigant.  

   

I would like to remind you that as a litigant in person I am already at a disadvantage in this matter, and that I consider your conduct in bombarding and harassing me with telephone and texts that are only tenuously connected to the dispute at hand to be an attempt to further disadvantage me unfairly, and to be in potential breach of sections 1.2 and 1.4 of the Code of Conduct for Solicitors.  (Those sections impose a duty of fairness on solicitors in dealings with both their clients and others).  

   

If you do not cease these messages which seem to be solely intended to bully and intimidate me, I shall have no hesitation in complaining to the Solicitors Regulation Authority and put the court on notice about your behaviour.   

   

I do of course remain willing to engage with you on behalf of your client in any genuine attempt by you both to resolve this matter amicably.  

  

Your billing department appears to have sent me a copy of a bill intended for your client.  This seems rather unprofessional to me and I would have thought might even be a breach of client confidentiality.  You may wish to speak to them." and to remind you well that you were cautioned by the court about this.   

   

  

 

  His reply today on a  Sunday night:  “Dear Sir 

Please immediately destroy the bill that was sent in error. I will notify our Client. 

I will respond to you substantively in relation to your email in due course.

 

[Manxman in exile]

So can I get this right...

 

You sent off the suggested letter (although you had added your own bits to it turning it into nonsense) to the other side's solicitor despite the fact that you had been clearly told not to send anything to him until other posters had had a chance to consider it and had said whether or not it would be a good idea to send anything?

 

Yes FTMDave and I have had a discussion about sending a letter and we had differing views on it, but at no point did we agree that it was something you should do.

 

In #207 I clearly explained why I had misgivings about sending anything and in #208 honeybee13 asked Andyorch's opinion.  In #209 Andyorch said he personally wouldn't send anything and in #210 and #214 both I and FTMDave agreed with Andy's thoughts.

 

STOP jumping the gun and just doing what is suggested in the first post you read each day.  Wait and see what other posters think of any proposed action.

 

Before doing anything ask: "So should I do what has been suggested in #(whatever number) or not?"

 

 

At least I suppose he's admitted he sent the bill out in error!

 

simeon  -  don't lose that admission of error!

[mantis shrimp]

Isn't it for the OP to decide how he wishes to proceed, taking such account as he wishes of what is said here? 

[Manxman in exile]

Absolutely.  

 

But if an OP demonstrates time and time again that he is just going to ignore the suggestions made in good faith that other posters have put quite a lot of their own time into thinking about, then that OP runs the risks of others ceasing to help him, and asking him what on earth he's doing.

 

If he just ignores what he's told there's no point in posters wasting their time trying to help him and answering his questions.

 

(Have you read all of this thread and the OP's previous threads?  He seems unusually unlucky in the litigation situations he finds himself in after making decisions of his own.)

 

And as the OP has simply appropriated the wording* I put forward in #204 as a suggestion for the text of a possible letter for discussion, and as I specifically said not to use it until others had commented on it, I'm a bit disgruntled that he seems to have sent it off anyway after other posters decided it probably wasn't a good idea.

 

But apart from that and wasting my time I'm not particularly bothered what decisions the OP makes or what the outcome of his case turns out to be.

 

*Apart from adding bits of his own that don't make any sense

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

[mantis shrimp]

OK Manxman, I understand.  Perhaps with experience you should put less of your time and energy into this poster's matters. It is even open to you to leave his situations to others.

[simeon1964]

19 hours ago, Manxman in exile said:

But if an OP demonstrates time and time again that he is just going to ignore the suggestions made in good faith that other posters have put quite a lot of their own time into thinking about, then that OP runs the risks of others ceasing to help him, and asking him what on earth he's doing.

 

This is no big deal. Just between the solicitor and myself. Only the judge decides the outcome of any case, besides this is unconnected matter to the case.

[Manxman in exile]

OK - it's entirely up to you how you handle it and what you do.

 

(At least you got an admission that the bill should not have been sent to you!)

 

What would be interesting to know is if your letter has the effect of keeping the other side quiet in respect of all their questions etc.  Let us know.

 

[AndyOrch]

Off topic posts removed...as were the previous ones you referred to.

[simeon1964]

latest

 

 

Part 20 Defendant reply.pdf

[honeybee13]

Could you tell us a bit more about the docu,ent in post #232 please?

 

HB

[AndyOrch]

Claimants response to the Part 20 counterclaim.

[FTMDave]

There's nothing earth-shattering here, simply the builder's solicitor saying the builder is in the right.

However, the OP had better be prepared to convincingly answer (7), (8), (10), (11) and have both evidence that the builder caused the damage and proper estimates that come to 16 grand.

Edited February 8, 2022 by FTMDave
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[FTMDave]

As my memory will inevitably fade over the coming months, here are some initial thoughts of points that need to be included in the OP's Witness Statement before the hearing -

 

1.  In (2) of the defence the Part 20 Defendant's solicitor states that the original particulars of counterclaim were insufficient, which is largely irrelevant to the dispute since they have since been amended.

2.  Much more relevant to the history of the case is that it was the Part 20 Defendant who initiated litigation.  During litigation he disobeyed clear orders from the Court on three separate occasions and eventually his case was dismissed.  He attempted to have his case reinstated through set aside but this was refused by the Court.

3.  In (12c) of the defence the Part 20 Defendant's solicitor states that the Part 20 Claimant paid for the work and therefore it must have been satisfactory, but this is simply untrue.  The Part 20 Claimant refused to pay the last instalment of Project 1 of £XXXX and the last instalment of Project 2 of £1080.  It was this refusal to pay that initially led to the Part 20 Defendant suing for this amount.  He lost.

4.  In (17) of the defence the Part 20 Defendant's solicitor states that their client intends to submit a further counter schedule of loss.  They are reminded that their client's claim has already been the subject of litigation and their client's claim was dismissed by the Court.

Edited February 8, 2022 by FTMDave
Mixed up Claimant & Defendant - again!

[simeon1964]

received this

..

 

 

 

 

 

2022-03-21 claim stayed till 2022-05-23 allowing negotiations between parties.pdf

[FTMDave]

OK, thank you.  So how do you propose to follow the court directions and negotiate with the builder?

[simeon1964]

Do I have alternatives?

 

I believe the next stage should be witness statement progressing into trial.

 

This man has delayed the process in taking this matter into set aside and now that we are back to beginning, to be given months for settlement is worrisome.

 

 My personal effect are still in the shed and storage. The condition to which the builder let my abode is not improving the state of my health and my finances is suffering.

 

The builder may be playing with time to allow him sell his house or planning to make recovery difficult for me if the case goes against him.

 

How do I protect this happening.

Edited April 2, 2022 by dx100uk
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[FTMDave]

Well the judge has stayed the case and ordered the parties to negotiate and has added "failure to engage properly in negotiations may result in the application of sanctions". 

 

I'm no expert in negotiation but I would guess that you taking the initiative and perhaps being able to paint the other party as the unreasonable one would be beneficial.  Write something to the builder's solicitor to throw the ball into their court like -

 

Dear XXXXX

 

Re: Claim no.XXXXX, Court Order 23 May 2022

 

I am writing to enquire whether your client, without of course any admission of liability, is willing to negotiate and make me an offer to settle our dispute - or if alternatively if he is firm in denying all of my counterclaim.

 

I would also like to ask if you stand by point 17 of your client's defence in which you state you client intends to submit a further counter schedule of loss.  I remind you that your client's claim has already been the subject of litigation and the claim was dismissed by the Court.

 

Yours,

 

XXXXX

 

However, I'm no expert here, there is no rush, the weekend is upon us, see what the others think before sending off a mail late on Sunday.

[FTMDave]

So did you send that off on 3 April?

 

Has there been any response?

[simeon1964]

No I have not. I was expecting more people to chip in more opinion 

[Manxman in exile]

 

That order states that by 4pm on 30 May 2022, the "Claimant" must give the Court written notification of the outcome of the ordered negotiations.

 

Can somebody remind me - and simeon - which claimant does this order refer to?

 

Those who have, or are, following this thread will recall that @simeon1964 was originally the "Defendant", but subsequently became the "Counter-claimant".

 

So is it simeon or the builder who has to give written notification of the outcome of negotiations to the court?

 

Apologies but I think it's important to get this right.

 

(It seems to be that if it's simeon who is the claimant in this respect, then he needs to be seen to be attempting to negotiate.  Whereas if it's the builder who has to do it, the onus is on the builder to kick off negotiations... )

 

I see nothing wrong with FTMDave's suggestion in #229 if simeon is the Claimant and needs to be seen to be attempting negotiations.

 

I might just tweak it slightly - so long as others think I've got it factually correct.  (additions in bold red, deletions in green).

 

+++++++++++++++++++++++++++++++++++++

 

Dear XXXXX

 

Re: Claim no.XXXXX, Court Order 23 May 2022

 

Further to the above Court Order I am writing write to enquire whether your client, without of course any admission of liability, is willing to negotiate and/or make me an offer to settle our dispute - or if alternatively if he is firm in denying all of my counterclaim.

 

I would also like to ask if 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?  I remind you that your client's claim has already been the subject of litigation and the claim was dismissed by the Court.  And when your client sought to have that decision set-aside, the court rejected that application.

 

Yours,

 

XXXXX

 

++++++++++++++++++++++++++++++++++++++++++++++++++++++++

 

I think somebody has to try to start negotiating...

 

[Edit - the only thing that strikes me is that if the onus is on simeon to do this (ie he is the claimant) then the above letter gives the builder too much leeway to create unwanted delay?]

 

The Court Order tells you what the next stage is.  The two of you need to start negotiating.  (And if you are the claimant - see my question in #226 - then I think the onus may be on on you to start off... )

[FTMDave]

Simeon is the Part 20 Claimant.

 

Although he has to report to the court, it doesn't say the onus is on him to start negotiations, "the parties" have to attempt to settle the matter.  However, as the other side haven't got a clue I think it would look good to the judge if he kicks off negotiations, and the other party might be so stupid as to either not reply or else refuse to bunch an inch.

 

What I suggested can't harm him.

 

So Simeon, send the mail I suggested tomorrow, including the changes suggested by MiE in post 243.

Edited April 12, 2022 by FTMDave
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