Flaws in Defence counterclaim Help

[Manxman in exile]

20 hours ago, simeon1964 said:

 

This is relating to document to rely on the case

 

 

???????????????????

[simeon1964]

Is there  more? as I am not clear on the response

[honeybee13]

We don't understand what you're asking, Simeon. Please can you explain what you mean about the document, so we can try to help?

 

How are you getting on with deciding which surveyor to agree to?

 

HB

 

 

[Manxman in exile]

I have just re-read posts #251 - #255 and I don't know whether to laugh hysterically or to scream loudly in frustration!!!  

 

@simeon1964  -  I'm afraid that nobody has a clue as to WTF you are babbling incoherently on about...

 

You've been asked several times on this thread and on the previous thread (1) to put your posts into context so people can clearly understand whether you are asking a question or making a statement, and what that question or statement is; (2) to set them out logically and clearly; (3) to indicate clearly when you are quoting from another document so others understand they are not your own words; (4) if you are quoting from another document, tell us what that document is and who it is from.

 

And yet here we are 9 or 10 months down the line and it's still happening.  Just earlier this month @FTMDave felt compelled to post this in response to you

 

On 03/08/2022 at 18:45, FTMDave said:

Yes, as usual you post things without any explanation.

We're not telepathic.

Who has sent you this communication?

 

and

 

On 03/08/2022 at 23:56, FTMDave said:

Blood out of stone at last.

Due to your explanation - or rather non-explanation - we thought Friday was your showdown with the builder, where hopefully, you would win your 16 grand...

 

 

I appreciate that English is not your first language but I doubt that what you post would make any more sense if it were written in Swahili, Yoruba, Asante Twi or Ancient Greek.

 

@FTMDave and I spent hours earlier this year trying to help you draft the particulars of your counter-claim, but I feel it's like banging my head against a brick wall and it's incredibly frustrating and draining - because you don't seem to take anything on board.  It feels like a complete waste of time.

 

And that's not to mention the fact that you got a court order dated 5th August with a deadline for action 28 days later, but you didn't bother to tell anybody here about it until 19 days after it was issued... 

 

On 26/08/2022 at 22:03, simeon1964 said:

 

This is relating to document to rely on the case

 

What on earth does this mean?  It seems to be entirely unconnected to anything that has gone before.  (I see that there appears to be a note attached in explanation of an apparent edit.  The note says: "unnecessary previous quote removed".  Has the removal of the previous quote perhaps made your post unintelligible?  How can we be expected to know if you have removed it...?)

 

Honeybee asks you what you mean

 

On 27/08/2022 at 06:34, honeybee13 said:

Sorry?

 

HB

 

I express puzzlement at your post

 

On 27/08/2022 at 18:41, Manxman in exile said:

 

 

???????????????????

 

You respond  (And don't tell me you didn't know what "?????????????????" meant... )

 

On 27/08/2022 at 22:20, simeon1964 said:

Is there  more? as I am not clear on the response

 

Honeybee again asks what you are talking about

 

On 28/08/2022 at 06:16, honeybee13 said:

We don't understand what you're asking, Simeon. Please can you explain what you mean about the document, so we can try to help?

 

How are you getting on with deciding which surveyor to agree to?

 

HB

 

 

 

 

I give up...

[honeybee13]

There's a lot for Simeon to do by Friday, we can only hope he can respond to us with something we understand.

 

HB

[BazzaS]

I've certainly felt dissuaded from trying to offer advice by the almost impenetrable posts of the OP, devoid of any useful details, and them not interacting when asked for that detail, or of not following the advice offered (and hence, now I am adding comment rather than advice).

 

Maybe the OP feels they don't want help, but rather, someone to blame when it all goes wrong.

I'm wondering this because they don't appear to be helping CAG'ers help them ....

Edited August 28, 2022 by BazzaS

[honeybee13]

https://www.consumeractiongroup.co.uk/applications/core/interface/file/attachment.php?id=47298&key=2573d82b96919b2c16848cf2b3cc948e

 

I've just reposted the court order from 24th August above. It mentions a document list that has to be exchanged with the claimant by 2nd September. I think it's a list of documents that will be relied on in court, but this isn't my field, and then the other side can ask for sight of them if they want to and so can Simeon.

 

And a joint surveyor must be agreed on by 2nd September.

 

From the court order:

'If you do not comply with these directions, any other party to the claim will be entitled to apply to the court for an order that your statement of case [claim or defence] be struck out.'

[honeybee13]

How are you getting on, Simeon? The clock's ticking down towards the end of the week.

 

HB

[honeybee13]

I hope @simeon1964is OK as he hasn't visited the thread since Sunday. Three days left to submit the court paperwork and agree on a surveyor and I worry that his counterclaim could be struck out through lack of action.

 

HB

[simeon1964]

Thanks all. I am still on course: Tomorrow is my deadline for witness Statement:

 

Here is what I have come out with for your editing:

 

Street,, make this statement in support of my counter-claim against the Claimant/Part 20 Defendant, Mr XXXXXXXXXXXX in the above Claim.

1. I have lived in the above property approximately 30months,  

 

 2. I contracted with the Claimant to perform work on my home at the above address in respect of initial work called the first (“Project 1”) consisting of work to:

 a. Underpin the bay window at the property,

 b. Replace and repair a previously-removed chimney breast and,

 c. Install a new beam to the patio door.

 

3. It was agreed between the Parties that the above work was to be carried out at the Property under the instructions of a structural engineer, Mr Jon Teesdale of Hales Surveys and that the work would follow instructions provided following the structural engineer's assessment of the Property.

 

Accordingly, I instructed Mr Teesdale and provided Mr XXXXXXXX with a full copy of his report which detailed relevant instructions and drawings was received by claimant in June 2020 being our first appointment (Exhibit…)

 

4. A contract was signed between the Parties, that the above work would commence on 13 August 2020 and that payments would be made in three instalments. The first payment would be made at the start of Mr XXXXX’s work. The second payment would be paid at the halfway point and the final payment on completion.

 

 5. The above agreement is evidenced in a contract signed between the Parties, dated 13 August 2020 (Exhibit…).

 

 6. I state that at no stage did Mr XXXXXXX advise, in writing or verbally, that there could be the possibility that he would not be able to carry out any of the work himself, or that in the event he was unable to do so that this would be likely to result in additional cost to myself.

 

 7. Mr XXXXXXX commenced work on 13 August 2020 and I paid the first instalment as agreed.

 

 8. On 24 August 2020, Mr. XXXXXXX(the claimant) asked the defendant to arrange an inspection of his work through the Building Control Inspector. Mr XXXXXX  also stated that Project 1 was approaching mid-way, Mr.XXXX requested  stage payment and defendant paid the second instalment due.

 

 9. The Building Inspector arrived to inspect Mr XXXXXXs work but he ( the claimant) was absent. The Inspector was very displeased by the standard of his work. The Inspector spoke to Mr XXXXXX by telephone, asking him why he was absent and interrogating him about the work he had done.

 

The Inspector then gave him some instructions over the telephone and also left a list of instructions with me to be passed on to Mr XXXXXX The Building Inspector then said he would be getting in touch with my structural engineer with his findings and I should hear from the engineer soon.

 

10. I passed on the Building Inspector's instructions to Mr XXXXXXX, who agreed to follow them.

 

11. The structural engineer visited and recommended piling to complete the underpinning for Project 1. Mr XXXXXXX explained that he could not undertake this work. The structural engineer then suggested an alternative company to me to do the necessary work and this company were engaged by me to complete the necessary piling at an additional cost to me of £3000 (see receipt, Exhibit … ).

 

12. I was unhappy that I was expected to pay additional money for the cost of the piling as I had not been warned by the Claimant that this may be a possibility. I believe that he should have made an investigation of the ground first before starting to dig and that he should have known that piling would be necessary in a job of this nature.

 

However, I felt that as the work had already commenced I had no choice but to pay the additional money and later had meeting of minds with the claimants over the extra payment.

 

13. Shortly after the work had commenced on Project 1 by another contractor the claimant MrXXXXXX asked if I needed any other work to be done on the Property and I agreed to pay for his services on 7 September 2020 in respect of additional work (“Project 2”), (Exhibit…) at an agreed price of £2580 and on similar payment terms to Project 1. This agreement is evidenced by a contract signed on 18 September 2020 named Project 2(Exhibit…).

 

 14. To be clear, although problems had already been encountered in respect of Project 1, it was not at this stage apparent to me the scale of the problems and I believed that these could be easily overcome. Furthermore, I took the view that it would make more sense to engage the services of the builder already engaged in work on the Property rather than instruct someone else, for the sake of minimum disruption.

 

15. As work commenced on Project 2 and was continued on the remaining work for Project 1, I had occasion to make several complaints to Mr XXXXX regarding the standard of his work.

 

16. Little more than a week after starting on Project 2, the Mr XXXXX demanded sub-payment for the above work from the Defendant in the presence of his wife, Defendant expressed dissatisfactions over further payment as work snagging of the jobs done so far became outstanding.

 

We negotiated for a while and I paid him £1500 in cash out of sympathy, because he was rude over issuing him cheque as I always did. Both Parties agreed that this left a balance outstanding on Project 2 was £1080.

 

I will say that he was quite aggressive and intimidating in the manner in which he asked for payment and would quite likely not have paid him so soon and without the completion of the work, or a substantive part of it were it not for wishing to avoid a confrontation and concern about delay to completion of the work.

 

17. It later came to my attention that Mr XXXXX had removed material (including a steel beam) from my property that I belonged to me originally or had been paid for by me in connection with Project 1. When I challenged the Mr XXXXXXX he admitted he had done this. I have included the value of this material in my counterclaim.

 

18. On 21 September 2020 I highlighted and sent a snagging list to Mr XXXXXX (Exhibit…). Over a month later Mr XXXXXXX sent an employee to attend to the snagging work. It was not carried out satisfactorily and resulted in an updated snagging list being sent to him (Exhibit…). All of this snagging work remains undone.

 

 19. Apart from the outstanding snagging work referred to above, the Claimant also left other work from Projects 1 and 2 uncompleted. That work which was not completed is listed in Exhibit…

 

 20. During the course of carrying out work on Projects 1 and 2 the Claimant also negligently caused substantial damage to the Property. Example Bay window foreground in which at every rainfall, rain water drain into the bay window ( Exh…)

 

 21. After several attempt to contact Mr XXXXXX it became clear that he was not going to complete any outstanding work, I then sent him a pre-action letter followed by Mr.XXXXXXX served me with legal proceedings in respect of outstanding fees in the sum of…£2800……

 

I was shocked as he had failed to complete the work and essentially quit without any notice. At no stage did I suggest to him that I considered the work to have been finished or that I wished to dispense with his services and so he was in breach of contract.

 

22. I responded with a counterclaim (Exhibit…).

 

23. Due to failures on the part of Mr XXXXXXX to comply with directions, his claim was struck out on… and I received judgement in full for my Counterclaim. (Exhibit…)

 

 24. When I failed to receive payment in respect of the above judgement, claimant made offer via my then solicitor to pay the Judgement debt in instalments of £100 per month, which I rejected. (Exhibit…).  I requested that the Court enforce judgement and understand that bailiffs turned up at his property accordingly. At this stage Mr XXXXXXX made application to set aside the judgement.

 

 25. I note that the above offer was an open one, and the fact that he made it shows that at this stage he had accepted that he was responsible for the value of my counterclaim.

 

26. Subsequently the Claimant made a successful application for Judgement to be set aside, further to which I was ordered to provide a further particularised Counter Claim and schedule of loss, which I then served on…. (Exhibit…)

 

27. I have submitted photographs of my property as it is since the work was not completed and there are various photographs in Exhibit…

 

 28. As a result of work that is either unfinished or was carried out to a poor quality my home is virtually uninhabitable, causing great distress to myself and my wife

 

 29. Furthermore, I had intended to rent out part of the Property, but have been unable to do so due to its poor state.

 

 30. Further to my Schedule of Loss I also wish to claim for the cost of storage of items over the period… This was necessary due to the state of my property as a result of the uncompleted work and damage to my property due to the negligence and breach of contract on the part of Mr XXXXXX (Exhibit…)

 

Statement of Truth I believe that the facts stated in this statement and attachments are true. Signed………………………… Dated………………...

Edited October 20, 2022 by dx100uk
formatting

[BazzaS]

Comes here a day before WS due, with his last contribution August 27th.

 

I’m not sure if he is a windup merchant or just beyond help (as people asked him to reply further before now) : neither are great options.

Edited October 20, 2022 by BazzaS

[AndyOrch]

Well the statement of truth is now out of date see the relevant CPR update.

[FTMDave]

I for one have to work till 10:30pm today so have no time to look through a WS posted up so late.

[simeon1964]

Not at all, but will appreciate every effort have till 4pm tomorrow

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

[FTMDave]

OK, I've tidied up the English and references to the two parties which were at times confusing for half the WS.  I'm very busy with work and that's all I've got time to do given the very short leeway you've given the forum.

 

In (12) you talk about "a meeting of minds".  That means the two people had the same opinion.  I don't know if you really meant to say that.  Change it if not.

 

 

Street, make this statement in support of my counter-claim against the Claimant/Part 20 Defendant, Mr XXXXXXXXXXXX in the above Claim.

 

1. I have lived in the above property for approximately 30 months.

 

 2. I contracted with the Claimant/Part 20 Defendant to perform work on my home at the above address in respect of initial work called the first (“Project 1”), consisting of work to:

 a. Underpin the bay window at the property,

 b. Replace and repair a previously-removed chimney breast and,

 c. Install a new beam to the patio door.

 

3. It was agreed between the Parties that the above work was to be carried out at the Property under the instructions of a structural engineer, Mr Jon Teesdale of Hales Surveys and that the work would follow instructions provided following the structural engineer's assessment of the Property.

 

Accordingly, I instructed Mr Teesdale and provided Mr XXXXXXXX with a full copy of his report which detailed relevant instructions and drawings and was received by the Claimant/Part 20 Defendant in June 2020 being our first appointment (Exhibit…)

 

4. A contract was signed between the Parties, that the above work would commence on 13 August 2020 and that payments would be made in three instalments. The first payment would be made at the start of Mr XXXXX’s work. The second payment would be paid at the halfway point and the final payment on completion.

 

 5. The above agreement is evidenced in a contract signed between the Parties, dated 13 August 2020 (Exhibit…).

 

 6. I state that at no stage did Mr XXXXXXX advise, in writing or verbally, that there could be the possibility that he would not be able to carry out any of the work himself, or that in the event he was unable to do so that this would be likely to result in additional cost to myself.

 

 7. Mr XXXXXXX commenced work on 13 August 2020 and I paid the first instalment as agreed.

 

 8. On 24 August 2020, Mr. XXXXXXX (Claimant/Part 20 Defendant) asked me to arrange an inspection of his work through the Building Control Inspector. Mr XXXXXX  also stated that Project 1 was approaching mid-way, Mr.XXXX requested stage payment and I paid the second instalment due.

 

 9. The Building Inspector arrived to inspect Mr XXXXXXs work but he (the Claimant/Part 20 Defendant) was absent. The Inspector was very displeased by the standard of his work. The Inspector spoke to Mr XXXXXX by telephone, asking him why he was absent and interrogating him about the work he had done.

 

The Inspector then gave him some instructions over the telephone and also left a list of instructions with me to be passed on to Mr XXXXXX. The Building Inspector then said he would be getting in touch with my structural engineer with his findings and I should hear from the engineer soon.

 

10. I passed on the Building Inspector's instructions to Mr XXXXXXX, who agreed to follow them.

 

11. The structural engineer visited and recommended piling to complete the underpinning for Project 1. Mr XXXXXXX explained that he could not undertake this work. The structural engineer then suggested an alternative company to me to do the necessary work and this company were engaged by me to complete the necessary piling at an additional cost to me of £3000 (see receipt, Exhibit … ).

 

12. I was unhappy that I was expected to pay additional money for the cost of the piling as I had not been warned by the Claimant/Part 20 Defendant that this may have been a possibility. I believe that he should have made an investigation of the ground first before starting to dig and that he should have known that piling would be necessary in a job of this nature.

 

However, I felt that as the work had already commenced I had no choice but to pay the additional money and later had a meeting of minds with the Claimant/Part 20 Defendant over the extra payment.

 

13. Shortly after the piling work had commenced on Project 1 by another contractor, the Claimant/Part 20 Defendant Mr XXXXXX asked if I needed any other work to be done on the Property and I agreed to pay for his services on 7 September 2020 in respect of additional work (“Project 2”), (Exhibit…) at an agreed price of £2580 and on similar payment terms to Project 1. This agreement is evidenced by a contract signed on 18 September 2020 named Project 2 (Exhibit…).

 

 14. To be clear, although problems had already been encountered in respect of Project 1, it was not at this stage apparent to me the scale of the problems and I believed that these could be easily overcome. Furthermore, I took the view that it would make more sense to engage the services of the builder already engaged in work on the Property rather than instruct someone else, for the sake of minimum disruption.

 

15. As work commenced on Project 2 and was continued on the remaining work for Project 1, I had occasion to make several complaints to Mr XXXXX regarding the standard of his work.

 

[FTMDave]

You also know full well that the builder & their solicitor will attack the figure of 16 and a half grand.  As far as I can see, when half asleep, you haven't justified that amount.  Either you do so or you will lose.  You've known you had to do this for months.

[Manxman in exile]

@simeon1964  -  did the report and detailed instructions provided by your structural engineer to the builder actually spell out the need for piling to be carried out?  ie was this covered in the plans or specifications the builder was working to?

 

I refer to paras 3, 6 and 12 of your WS.

 

(Reason for question:  I'm a bit puzzled that you say at para 12 "... I believe that he [the builder] should have made an investigation of the ground first before starting to dig and that he should have known that piling would be necessary in a job of this nature."  If the builder was working to the report, instructions and plans of your structural engineer, wouldn't those instructions and plans have spelled out the need for piling?  Why would the builder have needed to work this out himself?  Is there a possibility that the builder will point the finger of blame in respect of the piling at your structural engineer's instructions if the need for piling was not made clear?)

 

On 20/10/2022 at 23:47, FTMDave said:

You also know full well that the builder & their solicitor will attack the figure of 16 and a half grand.  As far as I can see, when half asleep, you haven't justified that amount.  Either you do so or you will lose.  You've known you had to do this for months.

 

I'm not sure if you noticed but simeon's WS is little more than a poor rehash of the detailed particulars of claim we drafted over 8 months ago in January, except his WS is not expressed so well.  I admire your fortitude in doing yet more more re-drafting.

 

We can only hope that he included the quotes and receipts in support of his £16k claim that were included in para 18 (a) to (d) of the Particulars from 23 January...

[simeon1964]

Thanks you all I am reviewing all your input

 

[simeon1964]

Claimant Witness statement:

 

 

claimants WS (part only).pdf

[honeybee13]

Hi.

 

Could we have an update on what's been happening please? It's flattering that you think we're psychic but sadly, we're not.

 

Is there a reason why you've only shown us part of the claimant's WS?

 

HB

[BazzaS]

That looks like his WS?

Is it not that he is the claimant (C), except the D has also filed a counterclaim?

[FTMDave]

It's all got complicated.

 

Originally the builder was the claimant and the OP was the defendant, but the builder lost the case.  The OP had made a counterclaim which is the part that continues.  The builder's solicitor in the WS has continued to use "claimant" and "defendant" as in the original claim.

[Manxman in exile]

Going back to my last post in this thread I can see some of this claim might rest on the distinction between "underpinning" and "piling"

 

The builder seems to be saying that Project 1 only envisaged underpinning.  simeon seems to be claiming either that Project 1 also included piling or that the builder should have realised piling would be required.

 

I'd still like to see the instructions/plans from simeon's structural engineer in respect of Project 1 that the builder was working to.  Presumably they included underpinning, but did they also include piling?

 

[simeon1964]

Here is council completion Note describing completion as underpinning and not Piling:

CCF_Council CComplete.pdf

I believe that there are different types of process of underpinning depending on the engineer instructions of how he want his job done to meet the safety requirements.

Amongst the different types the engineer chose piling. my web - Searches : "What are the types of underpinning methods" 

[Manxman in exile]

So simeon, for the purposes of clarification can you confirm:

 

1.  That your structural engineer's report definitely identified that "piling" was a requirement of the work;

 

2.  That your structural engineer's report (and instructions) formed the basis of Project 1 that you and the builder agreed to;

 

3.  That that report (and those instuctions) were clearly communicated to the builder as being the work that he had agreed to undertake for Project 1, and;

 

4.  That the builder did not inform either you or your structural engineer that they did not have the capability to undertake the "piling" identified as being required by your engineer?

 

14 hours ago, simeon1964 said:

Here is council completion Note describing completion as underpinning and not Piling:

CCF_Council CComplete.pdf 741.52 kB · 4 downloads

I believe that there are different types of process of underpinning depending on the engineer instructions of how he want his job done to meet the safety requirements.

Amongst the different types the engineer chose piling. my web - Searches : "What are the types of underpinning methods" 

 

The quite simple question is, "Did you or your surveyor adequately convey to your builder what the scope and the extent of the work was that was required to complete Project 1?"  Or did you leave it to the builder to decide what was needed?

 

(I'm not interested in different underpinning methods or the difference between piling and underpinning.  The question is exactly what work did the builder agree to carry out on Project 1)