Flaws in Defence counterclaim Help

[BazzaS]

From the WS:

“30. Subsequently the Claimant made an application for Judgement to be set aside which was granted on 10/01/ 2002, further to which Iwas ordered to provide a further particularised Counter Claim and schedule of loss, which I then served on 26/01/2022 (Exhibit 14)”

 

Some people might have considered posting this as it is supposed to be

a) particularised, and

b) have a schedule of loss

 

given that contributors are again asking for the relevant details.

Is that what is at post #133, and if so, why doesn’t the WS try to give detail of exactly what needs fixing and the costs (for each item) to fix it!

 

It shouldn’t be too hard for the OP to provide if it is available to the OP as “Exhibit 14”, but (true to form) the OP prefers to make this like “pulling teeth”.

 

OP if the particulars of claim and schedule of loss match with the experts report: the expert has addressed what they believe you are owed. Nil / nothing for many of the items, and an aggregate £1000 for where the expert believes you are owed.

You’d also be able to ask for costs and ask for interest (provided you included these in your counter claim)

 

Edited December 22, 2022 by BazzaS

[Manxman in exile]

[Cross-posted with Bazza]

 

@simeon1964 - if you want to know what questions you need to ask the expert, I would start off as follows:

 

1.  Open a spreadsheet (or just use a piece of paper) and list on it each item on your schedule of loss.  (Which, incidentally, is another document I don't recall seeing).

 

2.  Against each individual item of loss list the amount of money you claimed in respect of it.

 

3.  Then find the corresponding item of loss on the expert report, and list the amount of money the expert costed it at.

 

4.  For each item calculate the difference between the amount you claimed for it and the amount the expert costed it at.

 

5.  Add up all the differences.  It ought to come to £15k  -  £16k.

 

6.  Ask yourself why there is a difference of £15k  -  £16k.   Don't you have quotes and estimates to backup the amount you were claiming?

 

And I'll go back to a question I asked earlier today:  when you agreed the instructions for the expert, were you satisfied that those insructions covered all the issues that you were claiming for in your schedule of loss?

Edited December 22, 2022 by Manxman in exile

[FTMDave]

Bazza is spot on and beat me to it.

 

We are worried that you haven't justified the 17 grand to the court.

 

Please post up this Exhibit 14.

[Manxman in exile]

11 minutes ago, BazzaS said:

... given that contributors are again asking for the relevant details.

Is that what is at post #133, and if so, why doesn’t the WS try to give detail of exactly what needs fixing and the costs (for each item) to fix it!

 

It shouldn’t be too hard for the OP to provide if it is available to the OP as “Exhibit 14”, but (true to form) the OP prefers to make this like “pulling teeth”...

 

 

@FTMDave and I helped simeon draft the particulars at #133.  So far as I'm aware those are the particulars he filed.  (Of course he never confirms anything in a clear and straightforward manner so I'm not 100% clear... )

 

As I recall, they were drafted on the understanding that @simeon1964 would add onto the draft the details of what amount of money he was claiming under each heading.  (See, I think, para 18(a) - (d) of the particulars and references in that para to Exhibits 1 to 5 which were meant to deatil the losses he was claiming for).

Edited December 22, 2022 by Manxman in exile

[FTMDave]

Yes, Manxman in Exile, I vaguely remember, but it's not up to me or you to trawl back over two threads, 30 pages and 700 posts to find something that might correspond to Simeon's WS.

 

The unpaid volunteers on here who are giving free advice ask an OP to upload something.  The OP uploads it.  Simple as that.  I've got fed up on this thread of having to ask for something multiple times and won't do it any more.

 

So, @simeon1964, it's up to you.  We need to see Exhibit 14 or whatever part of your WS justifies the entire 17 grand to the court, otherwise we can't help any more.

[simeon1964]

Scan2022-12-23_183326CAG2022Dec.pdf

 

Manman in exile: Sorry the file for expert was too large and had to slipt into Part1/Part2 .as i could npt get it to Zip either. The expert report came whole

[FTMDave]

Thank you for uploading this.

[BazzaS]

Comparing items between Simeon's (S) schedule and the expert's (E) report, items 1-8 match in terms of description.

S's item 9 : E's item  22

10 : 10

11 :23

12 :24

13:27

14: 25

15 (air brick) : was the expert asked regarding this? it may be included in their report overall, but then again, only £50 is being claimed

16: 11

17 : 12

18 : 13

19 : 14

20 : 15

21 : 16

22 : 17

23 : 18

24 : 19

25 : 20

26 : 21

27 : 26

28 : 28

29 : 29

30 : 9

 

So while S's schedule seems counter-intuitive (why would you include items where you are claiming zero loss, S's 2,4,6,10, 18,20,22,24,28, and 29?), there seems a vast gulf between what S is claiming and what the expert believes is owed. The items match (albeit with different numbering) except for S's 15 missing from E's report, S's schedule having 30 headings, with the experts report matching 29 of those 30.

 

In summary, if the court prefers the experts view ahead of S's, the judgment (excluding interest and costs) will be in the order of £1k, not the £17k claimed.

 

Edited December 23, 2022 by BazzaS

[FTMDave]

Right, so you did justify the 17 grand in an exhibit to the WS.  Thanks goodness for that.

 

We can now understand the expert's list of points 1-29 (although weirdly he leaves one out as Bazza says).  We're getting somewhere at long, long last.

 

However, as Bazza has explained very well, you now have a big problem.  The builder reckons he owes you nothing.  You reckon he owes you 17 grand.

 

So the judge has got an independent expert in who concludes the builder owes you, but just one grand.

 

Do you think that realistically you can persuade the judge that the independent expert is wrong?

[FTMDave]

What date did you receive the expert's report?

 

I see the judge ordered that the expert must report by 11 November (but their report is dated 23 November).

 

The judge then ordered that two weeks later, by 25 November, "the parties may put written questions to the expert".

Edited December 23, 2022 by FTMDave
Extra

[Manxman in exile]

Just to comment on one item only...

 

simeon's item 12 (double glazing left incomplete) is valued by simeon at £1600 and that figure is backed up by an estimate by Cheshire Bespoke Building Limited.  But the expert costs it at only £65 (item 24).

 

There are similar examples throughout...

 

I think I can only conclude that whoever has provided the estimates to simeon has not been costing the jobs on the same basis and assumptions as the expert has.  Either that or (1) they intend ripping simeon off, or (2) they really don't want the work and have submitted ridiculously expenxive estimates to put him off.

 

If I were simeon I'd carry out the analysis I suggested earlier and see what the variance is on each heading of loss.  Bazza has already done half the work by mapping the items on the schedule of loss across to the items on the expert's list.  And I think that was the most difficult part.  The question then is why do the two sets of figures differ so greatly. 

 

I have to say though, from my experience of having work done on a house, the expert's costings seem unrealistically low to me.  But not so low as to explain a difference of > £15k

 

(I do wonder how much of this is explained by the history.  IIRC the builder originally sued simeon for a couple of grand in respect of unpaid work.  In response simeon (as advised by a "friend") whacked in a counterclaim for £16k or £17k, which simeon won by default but didn't enforce it, and then the builder got it set aside.  I wonder how much basis in reality that original counterclaim had... ) 

[FTMDave]

Excellent points MiE.

 

So it tomorrow/Christmas Day/Boxing Day Simeon can answer the questions in the last few posts, on the 27th there may be a chance to interrogate the expert as to why their estimates differ so wildly from market estimates.

[simeon1964]

On 22/12/2022 at 16:58, Manxman in exile said:

Here is expert report Part 1 and Part 2

 

I found it difficult to upload last night because it was too large so I scanned into two pdf as it would not updload nor take the Zip . 

[simeon1964]

This Report was sent to me at 18:32 Pm on Wednesday,21/12/202 same day I posted it on the platform. Surprised to see that it was addressed to the court on the 23/11/2022 and the report finally signed by the expert on the 13/12/2022. The claimant solicitor says there may not be enough time for the Expert to reply to questions and therefor asking court to change hearing date from the proposed January the 9th 2023

I did not get definite answer as to  why report was reaching me almost 8days after it was signed by the Expert

 

[simeon1964]

Manxman in Exile:  I was not advised by friends, it was based of quotation of the builders.

Some items were not priced because at the time I did not a get quotation in time for court deadline i therefore left it blank

[BazzaS]

Ideally you’d have got an idea of the sum you were claiming. Courts don’t like it when claimants are nebulous about sums, when the claim is well advanced.

 

Is that why some say zero?

Zero is the wrong thing to say : you’d be better to put “to be determined”, putting zero isn’t the same as “leaving it blank” as zero implies “no loss”.

 

a) why on earth didn’t you ask about this before you filed that schedule

b) why on earth are we only seeing this now? What else (that could be game changing!) remains to emerge??

Edited December 24, 2022 by BazzaS

[simeon1964]

What about rest of the counterclaim, the breaches. negligence, etc, even if the judge were to allow the expert report as reasonable. where do i go from here. there gone in my life without sleeping on a bed.

[BazzaS]

Where did you put a value on them in the claim?

 

The expert has given their opinion on items 1 to 29 where those raise issues of breach / negligence.

[simeon1964]

BazzaS: Looks like End of the road

[BazzaS]

6 minutes ago, simeon1964 said:

BazzaS: Looks like End of the road

that doesn’t actually answer what I asked (in keeping with your previous posts : not providing info, not answering questions, filing schedules without getting them reviewed …..)

[Manxman in exile]

6 hours ago, simeon1964 said:

Manxman in Exile:  I was not advised by friends, it was based of quotation of the builders.

Some items were not priced because at the time I did not a get quotation in time for court deadline i therefore left it blank

 

What does the following mean then, in respect of your original counterclaim back in 2020 or 2021?

 

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

I have written the defence and counterclaim myself with the help of a legal friend and quickly submitted it to meet deadline as have serious health issues at the time. I contacted my former solicitor there after.  All he did was dealt with  the allocation questionnaire and since the claimant didn't defend it, bingo...

 

Nearly a year ago I asked you why this "legal friend" who helped you get into this mess wasn't helping you now.  I don't think you ever replied.

 

You originally came here for help with this matter back in September 2021 when you were notified by the builder's solicitor that they were going to apply for the default judgement you won in June 2021 to be set aside.  That default judgement that you won was in respect of a counterclaim you made against the builder after he sued you for a couple of grand.  You counterclaimed for £16k or whatever long before you came to this forum.

 

Being sued by builder - filed a counterclaim - General Legal Issues - Consumer Action Group

 

AIUI your counterclaim for £16k was never actually tested in court because the builder didn't engage with the process and failed to defend it.  So you won by default.

 

Nobody who has replied to you in this thread knows whether your original counterclaim for £16k was justified or not.  We haven't actually seen the state of your house before and after the builder did (or didn't) do the work you paid him for, we haven't seen the contracts detailing the work you contracted him to carry out, and we don't know what instructions you gave to the traders who you asked to provide estimates to you.  Only you know all that and how that information relates to the expert's report.

 

You've received help from the forum on the basis that you have evidence (photos, surveyor's reports, tradesmen's estimates etc) that you have told us backup your counterclaim for £16k.  Assuming you actually have that evidence, you need to compare it against the expert's report and use that comparison to come up with questions to ask the expert.

 

But you have to do that yourself because you have all the information to allow you to do so - we don't...

 

If I were you, I think I'd go back to the people who gave you the estimates, show them the expert's report, and ask them what questions you should be asking the expert.  So for example, you could ask Cheshire Bespoke Building Ltd why they think the expert has costed the double-glazing completion/replacement at only £65 whereas they quoted you £1600.  See what I mean?

 

You need to identify why two separate traders (Cheshire Bespoke Building and Leigh Handyman/Eric Pang) have given you two quotes totalling over £13000 whereas the expert says the work you are counterclaiming for totals just £1000.

 

Only you can do that.  Nobody else here can.

 

7 hours ago, simeon1964 said:

This Report was sent to me at 18:32 Pm on Wednesday,21/12/202 same day I posted it on the platform. Surprised to see that it was addressed to the court on the 23/11/2022 and the report finally signed by the expert on the 13/12/2022. The claimant solicitor says there may not be enough time for the Expert to reply to questions and therefor asking court to change hearing date from the proposed January the 9th 2023

I did not get definite answer as to  why report was reaching me almost 8days after it was signed by the Expert

 

 

Did you not think it would be helpful to explain all that when you posted the report instead of just saying "I now need to ask questions"?  (See #301)

 

I'd have thought an adjournment to allow questions to be asked and answered would be a good idea.  But others may not agree.

 

17 hours ago, simeon1964 said:

Scan2022-12-23_183326CAG2022Dec.pdf 2.8 MB · 6 downloads

 

Manman in exile: Sorry the file for expert was too large and had to slipt into Part1/Part2 .as i could npt get it to Zip either. The expert report came whole

 

7 hours ago, simeon1964 said:

 

I found it difficult to upload last night because it was too large so I scanned into two pdf as it would not updload nor take the Zip . 

 

Neither of those posts explain whether the report is in two parts or one.   

 

A simple "The expert report is all contained in one file.  There is nothing else.  Apologies for the confusing reference to separate parts 1 and 2" or "Yes, the expert report is in two separate files but I've only posted one.  I'll post the other now" would have explained what you had done - but you haven't!

[FTMDave]

6 hours ago, simeon1964 said:

This Report was sent to me at 18:32 Pm on Wednesday,21/12/2022

Important question - did they send you it by e-mail?

[FTMDave]

10 hours ago, simeon1964 said:

The claimant solicitor says there may not be enough time for the Expert to reply to questions and therefor asking court to change hearing date from the proposed January the 9th 2023

Given the tight deadline and the large amount of money involved, would it not be a good idea to be pro-active and post up what the builder's solicitor has written?

[simeon1964]

The solicitor sent the report by email and call about postponing because the expert was behind in delivering the report 

[simeon1964]

4 hours ago, Manxman in exile said:

What does the following mean then, in respect of your original counterclaim back in 2020 or 2021?

 

Thats right but he didnt write builders quotation