Flaws in Defence counterclaim Help

[BazzaS]

23 minutes ago, simeon1964 said:

Thats right but he didnt write builders quotation

Perhaps I’m being obtuse, but can someone explain this to me?

 

MiE was asking about S’s comment of “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...”

Then S replies “Thats right but he didnt write builders quotation”

 

?!?

 

Well, surely the only person likely to have written the builder’s quotation would have been the builder, unless I’m missing something……

 

 

[honeybee13]

I thought it was just me, Bazza. You guys are heros for plugging on with this.

 

HB

[Manxman in exile]

Just a couple of observations before Christmas (and these are things that have been raised before but never I think been satisfactorily answered):

 

1.  Other posters have previously queried how a couple of contracts valued in total at < £7k could result in a claim worth over £16k.

 

The builder appears to have accepted that he is liable to the extent of £1k for work either not done or in need of redoing, but he asserts that the balance of the counterclaim (c £15k) is the value of work required to be done to "finish" the property - which had been bought cheap at auction -  and is entirely unrelated to any work he was contracted to do, or to any damage he may have caused.  (He offers the double-glazing as an example of this)

 

Nobody here can make any judgment about all that.  We have to rely on what simeon tells us.

 

 

2.  Regarding just the £3k claimed for underpinning. 

 

The builder was retained for Project 1 to follow the instructions supplied by simeon's structural engineer - instructions which I don't think we've ever seen.  I might have misremembered (this has dragged on for so long with lengthy periods of inactivity from simeon) but I was under the impression that the engineer had recommended, and given instructions for, underpinning rather than piling, and the builder took on the work on the basis that underpinning was required, not piling.

 

It's not entirely clear to me why the builder should be liable for the £3k that had to be spent on piling  The builder wasn't equipped to undertake piling, and so far as I know he accepted the job on the basis that it was for underpinning not piling.

 

I have already asked simeon back in posts #267, #273 and #275 what instructions the builder was working to and whether they included piling, but never got an answer.  I'm not sure why the builder should be responsible for the extra cost of piling if they were only contrcated to carry out underpinning.  (I think the expert's report makes it clear that underpinning is a general building job whereas piling requires a specialist contractor.)

 

 

These are just a couple of examples of anomalies that seem to keep rearing up as this case progresses...

Edited December 24, 2022 by Manxman in exile

[BazzaS]

I’m wondering if what this may come down to is (as an analogy) : 

person buys a 2nd hand car that needs lots of work..

 

Gets a general garage, asks them “sort my car out”, and they do, creating a 2nd hand mini.

 

Garage sues buyer over unpaid fees, but their claim gets struck out.

 

At the same time buyer says “but that’s a (dodgy looking) mini - I need £17k to get it to be the classic Rover I had in mind!”

 

Expert instructed to provide a report, report says “Mini a bit ropey, will take £1k before it is able to get to basic standard” (but it will still be a second hand mini, after the 1k is spent)

 

If that is a fair analogy, then it will turn (as MiE has said), on exactly what was agreed on when the buyer asked the garage to “sort my car out”!!

 

Meanwhile : we are still just guessing

a) as we aren’t hearing the garages side of things, and

b) the car owner never quite answers what is being asked!

 

Edited December 24, 2022 by BazzaS

[Manxman in exile]

53 minutes ago, BazzaS said:

Perhaps I’m being obtuse, but can someone explain this to me?

 

MiE was asking about S’s comment of “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...”

Then S replies “Thats right but he didnt write builders quotation”

 

?!?

 

Well, surely the only person likely to have written the builder’s quotation would have been the builder, unless I’m missing something……

 

 

 

Let me (try to) explain...

 

The builder who simeon is currently counterclaiming against originally sued simeon for work he'd done but which simeon hadn't paid him for.

 

simeon's reaction to that claim was to bung in a counterclaim ("with the help of a legal friend") for around £16k or £17k.

 

It's that counterclaim for £16k or £17k that this thread is about.  (It's a bit more complicated than that but I'm trying to keep this simple...)

 

simeon has maintained all along that he has quotes and estimates from tradesmen to back up his counterclaim for £16k or £17k.

 

My question to simeon was intended to get confirmation from him that the amount of money he was counterclaiming had some foundation in reality, and wasn't just a round figure plucked out of thin air by him and his "legal friend" - whoever that was.

 

I interpret his answer to my question to mean that he is confirming that he has a whole bundle of tradesmen's quotes and estimates to support his counterclaim for £16k - £17k against the original builder, and that it isn't a figure plucked out of thin air. 

 

When simeon says "... he didn't write builders quotation (sic) ..." the builders he is referring to is not the builder he is suing, but the other tradesmen who have provided quotes to him on which he has based his counterclaim.  Further he's confirming that neither he nor his "legal friend" conjured the figure up from nowhere.

 

Hopefully that makes sense...

 

simeon has been asked umpteen times by FTMDave and myself whether he has evidence to support the amount he is counterclaiming for.  I am now wondering whether the quotes and estimates that simeon is relying on actually cover additional improvement and repair work to simeon's house that are nothing whatsoever to do with anything that the original builder was contracted to do...

 

[Edit:  crossposted with bazza #351]

Edited December 24, 2022 by Manxman in exile

[Manxman in exile]

21 minutes ago, BazzaS said:

I’m wondering if what this may come down to is (as an analogy) : 

person buys a 2nd hand car that needs lots of work..

 

Gets a general garage, asks them “sort my car out”, and they do, creating a 2nd hand mini.

 

Garage sues buyer over unpaid fees, but their claim gets struck out.

 

At the same time buyer says “but that’s a (dodgy looking) mini - I need £17k to get it to be the classic Rover I had in mind!”

 

Expert instructed to provide a report, report says “Mini a bit ropey, will take £1k before it is able to get to basic standard” (but it will still be a mini, after the 1k is spent)

 

If that is a fair analogy, then it will turn (as MiE has said), on exactly what was agreed on when the buyer asked the garage to “sort my car out”!! 

 

That is exactly what I'm beginning to wonder about...

 

[simeon1964]

6 hours ago, Manxman in exile said:

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 h

There is no contradiction in any of of my thread. I may not may not be clear at some point. I got the Quotation from various builders after which I filed defence with help of a friend, The friend didnt advise me to whack the figures in.

[BazzaS]

Glad you’ve so effusively clarified in great detail, providing all the relevant info to back up your post, as always!

(in case it isn’t clear, that is sarcasm based on frustration!).

 

Good luck : if you can’t explain it here (given the gentle prodding and guidance offered), how in hell do you expect to explain it to the judge so as to justify your claim for £17k.

 

The judge doesn’t have to help you explain it as they have to be a neutral / disinterested arbiter. It is your responsibility to make things clear and justify your assertions.

Edited December 24, 2022 by BazzaS

[simeon1964]

You ask again, is it a dead end now? an absolute no way out?

[BazzaS]

I don’t know how anyone can do any more than guess, since you haven’t supplied the detail to make an informed assessment.

 

If, somehow, you persuade the judge, then who knows what they will award.

You’d have to have made, and make, a clearer / better / more justified case then is apparent so far, here, though!

 

On info to date, success in your claim to the value of £1k, interest and costs is “best guess”, but it is literally a guess.

Edited December 24, 2022 by BazzaS

[BazzaS]

20 minutes ago, simeon1964 said:

I may not may not be clear at some point.

Well, you need to start making sure you are clear, and when you are asked for specific detail, providing it, and all of it (not just in ‘dribs and drabs’)

[BazzaS]

If I was the builder I’d be putting in a part 36 offer of £1001 (together with costs and interest to be added to the £1001).

Edited December 24, 2022 by BazzaS

[FTMDave]

The next stage is to ask the expert your questions.

 

You should use today/Christmas Day/Boxing Day/the 27th (a Bank Holiday in the UK, right?) to prepare these with the help of the forum.

 

You could ask why he hasn't considered the air brick for which you are claiming £50.

 

I think Manxman in Exile's idea is excellent.  List the repairs for which you have proper estimates.  Prepare a spreadsheet with five columns: the expert's reference number; your reference number; the name of the repair; the expert's estimate, the estimate your obtained.  And ask the expert why there is such a huge difference between his estimate and what seems to be the market estimate.

 

And any other questions you have.  You're the one who knows your case inside out.

 

Get on with this over the next few days so it's ready to e-mail to the expert on the 28th.

[simeon1964]

If this builder had no qualification to tamper with electrical equipment and had connected several cables into the bathroom and cooker extractor fans via another source,

 

tampering with the boiler and with no Fensa authorisation which will warrant my getting qualify people for safety of these appliances.

 

Why would the expert not take these into account and giving Nil amount.

 

Plus the gutter where the fascia was damaged that has been dripping which the expert witnessed himself.

 

It been dripping since the builder walked away almost 3years now with damp coming into the living room.... yet i got nil amount for that too.

[BazzaS]

Was the air-brick included in the expert’s joint instructions?

 

(We don’t know, we’ve not seen them!)

[honeybee13]

 

tampering with the boiler and with no Fensa authorisation which will warrant my getting qualify people for safety of these appliances.

 

This may not be relevant but Fensa is to do with double glazing.

 

HB

[FTMDave]

13 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

This is not true, is it?

 

The Particulars of Counterclaim were filed on 23 January.  At that time, fair enough, you hadn't got quotations in time for the deadline.

 

The Witness Statement was filed on 21 October, by which time you'd had another 10 months in which to get everything properly estimated.

 

You also posted up the draft WS only a matter of hours before the court's deadline, making it impossible to do any work on it.

 

 

 

[BazzaS]

9 minutes ago, simeon1964 said:

If this builder had no qualification to tamper with electrical equipment and had connected several cables into the bathroom and cooker extractor fans via another source, tampering with the boiler and with no Fensa authorisation which will warrant my getting qualify people for safety of these appliances. Why would the expert not take these into account and giving Nil amount. Plus the gutter where the fascia was damaged that has been dripping which the expert witnessed himself. It been dripping since the builder walked away almost 3years now with damp coming into the living room.... yet i got nil amount for that too.

Well done! You’ve found a question to ask!

 

You need to be clear on the point you are making, though, as you are asking about electrical equipment, then boiler, and then saying “no FENSA”.

 

FENSA relates to windows and doors though, not electrical nor gas!

 

<just seen that I’ve crossposted on the FENSA issue with Hb >

Edited December 24, 2022 by BazzaS

[FTMDave]

2 hours ago, simeon1964 said:

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

Why did you get the report from the other side's solicitor rather than direct from the expert?

 

Did you do the digging that was suggested months ago to satisfy yourself the expert really was independent?

[simeon1964]

This category of work fell under project2 when he was begging for more work to relief the additional payment on the piling. This was the reason he took on plastering as he was not a qualified plasterer and not a window man nor electrician

[Manxman in exile]

@simeon1964   -  three points for you to consider over the next couple of days:

 

1.  Regarding the quotes and estimates backing up your counterclaim

 

Are you 100% certain that the quotes and estimates you have in support of your claim only cover the following three points and nothing else?

 

First, work you paid the builder to do but he didn't do.

 

Second, work that the builder did, but badly, and which now needs to be redone.

 

Third, damage caused to your property by the builder while he was working on it.

 

My understanding is that you can only claim under the above three categories - ie to cover losses actually incurred by you and caused by the builder.  The court will not allow any element of "betterment" in your claim

 

 

2.  Instructions to the expert

 

Were you happy with the instructions given to the expert?  (ie did those instructions address everything in your claim?)

 

If you weren't happy with them, why didn't you get them amended so that you were happy?

 

If you were happy with them, has the expert followed them in his report?

 

 

3.  Compare the amounts in the expert's report against your schedule of loss

 

I've already suggested this twice today and yesterday, and I see FTMDave has at #351 as well.  You need to analyse the variances between your schedule of loss and the expert report.  Then, if I were you, I'd go to the people who supplied your quotes (eg Cheshire Bespoke Building and Leigh Handyman/Eric Pang) and ask them why they think their figures are so much higher than the experts.  I would also show them the instructions the expert was given

 

You can then use that information to draft questions for the expert.

 

If Cheshire Bespoke Building and Leigh Handyman come back to you and say anything like "But what you told us to base our quotes on is totally different from the instructions given to the expert! " then you have a problem...

 

I can't suggest anything else really.

Edited December 24, 2022 by Manxman in exile

[simeon1964]

7 minutes ago, FTMDave said:

Did you do the digging that was suggested months ago to satisfy yourself the expert really was independent?

What digging? dont understand.? The builder was not asked to come and dig but to do underpinning, Piling is underlining as well only that the Expert is not spelling it out. Every builder knows about underpinning. 

[BazzaS]

“digging that was suggested months ago to satisfy yourself the expert really was independent?”

 

Digging as in “digging for information”

 

the “to satisfy yourself the expert…..” bit is what gives it away that this isn’t “digging” that gets done with a shovel or excavator.

[simeon1964]

I was given two options of which he was the only one online and I chose him. Not much of digging?

[Manxman in exile]

29 minutes ago, FTMDave said:

This is not true, is it?

 

...

 

@FTMDave  -  to be fair to simeon he was answering my question about the original counterclaim he filed back in 2020 or 2021, not the one he filed in January this year.

 

I was again trying to get to the bottom of how he had originally justified a counterclaim to the value of £17k.  I was concerned that either he or his legal friend had simply dreamt up a figure.

 

I'm still none the wiser...