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    • It wont let me edit the OP but here's the statement of case. all statements are backed up with evidence in teh bundle as either email messages, text messages, police reports, etc....    
    • Hi   IMO if the Lease has still not been transferred to this new individual you really need to speak to your solicitor dealing with this to put a stop on that transfer of Lease until the money is fully paid and for the solicitor to notify this individual of this.        
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Flaws in Defence counterclaim Help


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Hi simeon.


Wow.  I can see you have spent a lot of time considering the questions I suggested from the other thread - well done. That makes much more sense and I begin to see what has happened - and I can see why you are counterclaiming.  It's that detail - the chronological order and the explanation of what happened that's required.


I've only scanned through it at the moment.  I'll look at it more closely over the next day or two


See what help others can offer.  In particular, BankFodder may suggest that you turn the PDF file in #2 into a timeline or chronological list of bullet points of what happened.  (And I don't just mean copy and paste my questions and your answers, I mean you creating a history of what happened from those questions and answers.  Yes?)


Then you can use that document to re-draft* your defence and counterclaim in your own words for others here to comment on.


Do you have any evidence (eg written reports etc) from the building inspector or structural engineer highlighting that your builder's work was sub-standard?



* I'm assuming that the judge who accepted the claimant's set-aside application told you to go away and re-draft your defence and counterclaim?  So you don't have to rely only on what you originally submitted?

Edited by Manxman in exile
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So who is that from?  Is that from your structural engineer/surveyor and did they draw up the original plans/drawings for your builder to work from?


That report seems quite helpful.  Are they aware that the work in question is the subject of litigation?  It might be worth your while to speak to them to see if they can provide further help for you.  Can they compare what work was agreed against what work was done, and done badly?


Similarly the council building control inspector.  Explain the work is the subject of litigation between you and the builder and you would like a report highlighting the flaws and faults in the work the builder did and needed putting right.  (I don't know if they can do that or not but you may as well try).


Haven't you already got access to all this sort of stuff though?  Didn't your previous solicitor pull all this stuff together in your defence evidence bundle before the original hearing?  If you have paid your previous solicitor off in full, aren't you entitled to all the papers he has relating to your case?  (Again, I don't know, but I thought that's how it worked... )


As regards your £16000 counterclaim, what have you got in the way of physical quotes and estimates from builders and traders (or your structural engineers/surveyors) to back up that value?  In other words, what evidence do you have that getting the work completed and/or put right is going to cost you £16K?  At the moment all I can recall seeing are "blind" (ie just on un-headed paper with no indication where they come from) lists of snagging and remedial work you claim needs to be done to put right the claimant's bad workmanship.  How does the court know you have not made all that up?  (I'm not suggesting you have, but how does anybody know you haven't?).  So how have you arrived at £16K?  You will have to persuade the judge that you are legally entitled to that £16k, so you need to provide evidence that that is what it will cost to put right.

Remember that what you are basically doing with your defence and counterclaim is telling a history that explains why you are right and the claimant is wrong.  Every history has a beginning, a middle and an end.  Everything has to be told in a logical order, and everything needs to be explained in a way that anyone can understand, and which is supported by evidence.  You are not writing a mystery novel where you are trying to confuse and mislead people.  You want everything to be crystal clear for the reader so they don't need to ask any questions.


As I mentioned in the previous thread, have you tried asking Citizen's Advice Bureau for help?  I don't see why you can't.  Are you in a position to get legal advice from another solicitor?  Or if you live in Manchester, have you checked to see if the University Law School offers any kind of free legal advice?  Lots of university law schools do so and Manchester has a good law school.  If you really are pursuing a genuine counterclaim for £16000, it seems a lot of money to risk as a litigant in person without proper legal advice.  In particular, I don't know if a counterclaim of £16000 might have cost implications for you.   But it's entirely your choice what you end up doing.


You don't need to respond to me immediately, but you do need to start gathering documents and evidence to support your defence and counterclaim, and think about how to draft your defence and counterclaim.  (Again, as I said in my previous post, I presume the court has told you to re-do your defence and counterclaim and you aren't stuck with the original one?).


I know there is a lot above for you to take in, but I hope it's some help to you.  See what other people suggest too.


[NB  -  Please note I am not a lawyer and I'm not giving you legal advice, I'm just giving you an opinion that at the end of the day is worth nothing.  I also don't know anything about drafting claims and defence pleadings.  I'm just stating what seems like common sense to me, so you need to bear that in mind.


If you want legal advice you can rely on, you really need to pay a solicitor for that advice.]

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So when you received the original claim from your builder, you drafted your own defence and counterclaim with the help of "a legal friend".  (Can't this legal friend help you again now, as they must be much more familiar with your problems than anybody here?).


You then fell ill and had to get a solicitor to continue with the case, but all he had to do was answer the allocations questionaire because you won default judgement when the claimant failed to comply with court orders.  As you say - Bingo!


55 minutes ago, simeon1964 said:

... Secondly on N149A the former Solicitor had asked  for written Expert Evidence being surveyor/ contractor. and he writes : " Cost=TBC" (Dont know what that is?




So does that mean that your solicitor actually had an expert written report, or just that he was planning to get one done, but had not yet got round to it?  (I suspect honeybee13 is correct that "TBC" means "To be confirmed", which suggests to me that no report has actually been done... ?)


My personal view - and it's only my view - is that if you have nothing else that provides evidence of the claimant's substandard and incomplete work and the damage he has caused to your property (together with an estimate of the cost of putting all that right), then you really do need some kind of "expert" report that explains all that to the court and which you can submit as evidence.


Whether you have time to get that now within the deadline, I simply don't know, but if I were you I think I'd be talking to my structural surveyor/engineer ASAP, or getting a quote from another builder.  Or is the document you posted earlier from Hale Surveys Ltd meant to be that expert report?  We simply don't know - we have to rely on you to tell us and to explain what the different documents are.


Honeybee may have some comments or might be able to get other members of the site team interested in the thread. 


[Edit:  Ah! cross-posted with others.  I see Andyorch and FTMDave are interested as well as Honeybee.  Good.]

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So - Andyorch has confirmed you don't need to have any report on the damage or valuation to put it right before you submit your defence and counterclaim.  Any requirement for reports will come later.  So that's good.


So for the time being you need to concentrate on drafting a comprehensive but easy to understand defence and counterclaim.  In the defence you need to explain clearly and point by point why you don't owe your builder the money he is claiming.  In your counterclaim you explain what damage he caused that you want him to pay for.  And ideally something to back up the £16000 figure you are counterclaiming.  (It might get a bit embarrassing if you get a report afterwards but it only identifies £5000 of work that needs to be redone, reimbursed and/or fixed).

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simeon  -  another couple of points for you to think about:


As I understand it, the main plank of your defence is: yes, you engaged the claimant to do some building work; but he didn't complete it and what he did complete was poor quality; he also damaged your property; you had to pay a third party to do work the claimant had agreed to do but didn't; therefore you withheld the final payment due to the claimant.


If that is correct, what evidence do you have as to the extent and description of the work that the claimant agreed to do for you?  Was it clear that the underpinning/piling work you had to pay a third party to do was something that the claimant should have done under your agreement?  Have you got anything in writing or was it just a spoken agreement?  If he was working from plans and drawings provided by your structural angineer/surveyor, have you got those plans and drawings?


And - sorry to harp on about this - when you and your legal friend came up with a counterclaim figure of £16k, it must have been based on something and not just internet estimates, I hope.  What was it?


Also - and I thought I saw this mentioned by FTMDave, or Andyorch, or honeybee13 - if you win your counterclaim, do you think your builder can pay you?  Didn't he plead poverty after the default judgment?  I'm only saying this to warn you that you might end up in the truly awful position of winning the case, but not being able to enforce judgment.  Not that you can do much about that now...


Good luck.

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@simeon1964   -  OK.  Well that looks like a good starting point for a defence.  Note I say a "starting point" - I think it still needs a lot of work but well done.  For the first time I feel like I'm beginning to understand what has happened.


The first dozen or so numbered points of the defence read quite well and can be understood.  But the second half of the defence gets a bit confusing and muddled again.  It tends to degenerate into:  "He said 'xxx' and I said 'yyy' and my wife said 'ZZZ'".  I think you need to try to cut out the points of dialogue and detailed descriptions (keep them for your witness ststement?) and try to stick to a clear but concise statement of what happened, explaining why you should not pay his claim.


I agree with Andyorch about needing much more explanation of the counterclaim.


At the moment you are basically saying:




I'm not liable to pay the £2800 claimed from the agreed fee because the claimant (a) did not complete the agreed work, so (b) I had to pay somebody else to do the work. and (c) he also damaged my property"


Which is generally OK.  But then you go on:




The claimant damaged my property and I'm claiming £16k for that".


That's not OK because how does the court know it will cost £16k to put right as opposed to - for example - just £3000?  You need to provide the court with something concrete to back up the figure of £16000.

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@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 by Manxman in exile
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@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.




(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... ]

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2 hours ago, 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 workI 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


1918.  Around 15/09/2020 barely a week the builder had got the project 2 job, he was trying to ask for money for project 2Barely 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?]

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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?

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54 minutes ago, 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... )

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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!!!)

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1 hour ago, Andyorch said:

So what happened to their claim ...as per my last post?


As he appears not to be able to remember, should he ring the court ASAP tomorrow morning and ask?  I fear it may be a waste of time but what else can he do?

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So apart from drafting a counterclaim that explains why he's suing his builder for £16000, what else do you think @simeon1964 should be doing?


I freely admit I'm well out of my depth here and I don't want to inadvertantly guide simeon off in the wrong direction.  And I think FTMDave probably feels the same way.


I'm a bit concerned that it will turn out that there has never been any "real" evidence to support the value of the counterclaim and that at the time it just seemed like a "good idea" to both simeon and the legal friend who helped him draft the original defence and counterclaim.

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And presumably that fully particularised counterclaim will need to give a breakdown of the amount (£16k) claimed, or can that wait until later?


(I'm asking because I don't know and I'm pretty sure simeon doesn't know either... )



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Thanks Andy


Whether that makes things clearer for simeon or not, I don't know...


Yes - simeon should have ensured long before arriving at this point that he had an accurate breakdown of the uncompleted work, the damage caused by the builder and what it will cost to put that damage right.  Why he didn't have that before he submitted the counterclaim is unclear.  But that's where he appears still to be even now.


The only possible explanation as I see it (and I have no idea if this is true or not) is that simeon's solicitor seemed to advise him not to bother to get a surveyor's report before the court hearing. 

On 12/01/2022 at 15:58, simeon1964 said:

I remember the former [my solicitor] saying that i should wait till we go to court before I get a surveyor to give assessment of the damage and that the judge might say both parties would pay for the cost, But am not very clear on this.  


I'm also wondering whether because of the excessive delay in the solicitor enforcing the original default judgment and simeon's subsequent dismissal of the solicitor, that the need to back up the counterclaim was overlooked.


Of course, that's all pure speculation on my part, and I have no idea whether it might help simeon buy more time or not?


[Edit:  I was replying to Andy's #71 and I see I've cross-posted.  I think I agree with FTMDave that simeon can only do the best he can and hope...]

Edited by Manxman in exile
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My fear is the ball park figure being claimed has been based onthe dimensions of a polo field when it should have been based on the size of a snooker table.  I don't think we've seen anything that justifies £8k let alone £16k.


I'm not sure simeon has any idea of the real value of his counterclaim.  Sorry.

Edited by Manxman in exile
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Hi simeon - ok maybe that sounds a bit more promising.  Let me have a quick think about this and I'll get back in 30 mins or so.


But remember - I'm not a lawyer and as I've said before I have absolutely no knowledge or experience whatsoever of civil court rules and procedure.  I can't give you legal advice on the best or the correct way of doing this.  As I've said before, if you want legal advice you can rely on, then you need to pay a solicitor.  If you can't afford that you are going to have to make your own decisions having already decided to sue your builder for £16k.  I've already suggested you speak to Citizens Advice Bureau or ask if your local university law school provides a free legal clinic.


All I can tell you is what seems like common sense to me.  I suspect Andyorch is the person you need to be asking what you should and should not be doing from a legal procedure point of view.  But at the end of the day it's only you who knows exactly what has happened and you have to make the decisions.


I'll be back shortly.

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5 hours ago, simeon1964 said:

Will I be able to ask the court to amend the defence alongside the application to extension the counterclaim .


I don't know because I wasn't there when the judge delivered their verdict.  I think I've already suggested you ring the court and ask them if you need to submit a re-drafted defence to the original claim or did the judge dismiss the application to set aside.  Tell them English is not your first language and that you are confused as to what you need to submit next week (or whenever the deadline is).  Ask them to explain what you are required to do and what more you are allowed to do.  OK?


3 hours ago, simeon1964 said:

Yes <Manxman in exile, I need something evidential. The figures were not plucked from thin air, whey were based on searches for estimate from online tradesmen. You hammered on 16k of which I have supported 3.3k receipt  leaving 13k to prove, and two quotes one, from a plasterer to re-do the plaster work for about 3k via my email and another another Handyman for a little over 10K figure over his phone, having come to inspect the job. I agree my resource is running out getting anything that can buttress this claim as reasonable. Do i now go for survey, assessor but at what stage of this claim are these professional needed. I do not like the condition and the state of my home now as I can not do any more building work, since the guy walked away. Help please


OK.  So if I understand you correctly you appear to have some information/evidence to support the amount counterclaimed.  You have:


  1. a receipt for £3300.  Presumably that is from the other people who did the underpinning/piling that your builder was meant to do and was included in Project 1, but he did not do the work and you had to pay someone else to do it?
  2. a quote from a plasterer for "about" £3000, and 
  3. a quote from a trader for a little over £10000 to do the remedial work.

Well that adds up to around the figure you are counterclaiming.  Surely all you need to do is to reference those three documents (the receipt and the two quotes) in the numbered particulars of your counterclaim and attach them as exhibits?  If I were you I would ideally want the quotes to be on headed notepaper identifying the tradesman or the business supplying the quotes, otherwise who is to say you haven't just made them up?  If they aren't like that already, ask them to provide quotes like that ASAP.  But if you can't obtain them, just go with what you have.  You appear to have no choice.


I have one query regarding the receipt for £3300 (item 1.).  If I have understood all this correctly, you had already paid your builder under Project 1 to do that work.  Correct?  But when he couldn't do it you had to pay someone else £3300 to do it.  So you are claiming the £3300 from your bulider because you had to pay that amount to someone else even though you had already paid the builder for that work.  Is that correct?


Can I also ask why you haven't posted up copies of this receipt and the two quotes earlier when you have been asked what evidence you have to support your counterclaim?  It might have saved some time and anxiety...


1 hour ago, simeon1964 said:

What evidence and  in what format, a builder, a surveyor, assessor or a contractor. I am not plucking figures off the tree. I have a table of schedule of loss. They are quotes for work not yet done except for two items, underpinning and dumping the rubble. total £3387.12 . This is 16k-3.4K. The point is; is this evidence needed at this stage as some people on the platform are saying to the contrary. If yes tell what it and will invite the profession to value the damage.


I don't know.  Andyorch has previously said that your earlier detail of the counterclaim was not good enough and he has also said that "... the court now require a full particularised counter claim (in a statement form) along with evidence (exhibits)... "  #69


I would take that to mean that you need to submit numbered particulars of your counterclaim and that included within those particulars you also need to itemise all the work that is needed to be done and which adds up to the total of your counterclaim.  You do that by referencing your particulars of counterclaim to the receipt and two quotes mentioned above, and you attach those three documents as exhibits to you particulars.


As regards an expert surveyor's report etc, I simply don't know.  FTMDave has previously suggested that an expert report may not be strictly necessary (#14) but might be agood idea, and Andyorch said this in #15  "You dont require an expert statement at this stage...simply start again from the beginning and replead ... your ... part 20 counter claim and submit by the date stated. Expert reports come at allocation stage when you will both have to submit a further DQ unless the judge dispenses with allocation....and lets the original DQs stand"


That is as much as I know and understand, but I think you need to incorporate the receipt and two quotes into your counterclaim to support the amount claimed.  Andyorch seems to be suggesting an expert report is not needed at this stage.


That's all I can suggest and it's based on a common sense interpretation of earlier posts in this thread.  As I said before I'm not a lawyer and I can't give you legal advice.  If you want legal advice you can rely on you need to pay a lawyer.


Again - have you approached citizens advice or asked your university law school?


I don't feel I can give any further help beyond the above...


Edited by Manxman in exile
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simeon - just realised that you may also still have been asking about an extension to get expert reports etc?  I think that @Andyorch has already suggested a couple of times that that may not be necessary???


21 hours ago, Andyorch said:

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...



12 hours ago, Andyorch said:

A breakdown should be given within the particularised claim to quantify the losses claimed along with whether in negligence of breach of contract......breach of duty causation and loss as the Defendant Part 20 Claimant must be in a position to be able to plead with fact given that counterclaim has already been submitted earlier albeit with no great detail or support but now the court wish to test the counter claim.


Its no use now rushing around to try and get expert testimonial and what it will cost to correct....that should have all been finalised at the time the counter claim was initially filed....after all the OP was prepared to plead this last year at the time of the claimants claim and all though we are not aware of what happened to the claimants claim....if it had proceeded to a hearing he would have had to plead the counter claim with supporting evidence....


12 hours ago, Andyorch said:

...Point 5 of the court Order confirms that Directions Questionnaires must be submitted by 4.00pm 28th Feb and he can request permission for expert testimony report at this stage so the claim will then move to allocation  which will then allow further directions with regards to submitting witness statement and evidence at a date to be confirmed.



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I unexpectedly had a couple of hours free this afternoon and thought I would have a bash at helping simeon drafting his counterclaim.  Everybody please feel free to comment on and - hopefully improve it!  (In particular I am not sure if I've got the terminology correct vis a vis counterclaimant and defendant - so that may need correcting).


I am aware that Andyorch and BankFodder often stress the importance of keeping POCs to the bare minimum so as not to give away your case too much.  Whether I've given too much detail - or not enough - here, I don't know.  As I say, it's free to be pulled apart, but simeon seems to have nothing else.


Paras 1 - 16 (in black typeface) are simply a precis based on what has gone before and I've used them to put the counterclaim in context.

Paras 17 - 19 (in red typeface) are simply my attempt to provide a basis for simeon's counterclaim.


At the end of the day this is simeon's documant - nobody else's.  simeon has to satisfy himself that it is both accurate and true, and also says what he wants it to say.  He will also have to order and sort out any attachments.  As I said earlier, I'm NOT giving legal advice!


Here goes...




1.      The defendant agreed to undertake building work (Project 1) at the counterclaimant’s property in relation to 3 specific areas of work for an agreed price of £4300.  The work was:


a. To underpin the bay window at the property,

b. To replace and repair a previously removed chimney breast and,

c. To install a new beam to the patio door.



2.      It was agreed that Project 1 was to be carried out under the instructions of a structural engineer engaged by the counterclaimant and that the defendant’s work would be as a result of instructions received following the structural engineer's assessment of the property.


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


4.      It was agreed between the parties that the works would commence on 13 August 2020.



5.      It was agreed between the parties that payments for Project 1 would be made in three instalments. The first payment would be made at the start of the defendant's work. The second payment would be paid at the halfway point of the defendant's work. The final payment would be made on completion of the total works.


6.      The defendant commenced work on 13 August 2020 and the first instalment due was paid.  


7.      On 24 August 2020 the defendant asked the counterclaimant to arrange an inspection of his work by the Building Control Inspector.  The defendant also stated that Project 1 was approaching mid-way and the counterclaimant paid the second instalment due.


8.      The Building Inspector arrived to inspect the defendant’s work but the defendant was absent.  The inspector was obviously very displeased by the standard of the defendant's work.  The inspector spoke to the defendant 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 the counterclaimant to be passed on to the builder.  The building inspector then said he would be getting in touch with the counterclaimant’s structural engineer with his findings and the counterclaimant should hear from the engineer soon.


9.      The counterclaimant passed on the Building Inspector’s instructions to the defendant who agreed to follow them.


10.  The structural engineer visited and recommended piling to complete the underpinning for Project 1.  The defendant explained that he could not undertake this work. The structural engineer then suggested an alternative company to the counterclaimant to do the necessary work and this company was engaged by the counterclaimant to complete the necessary piling at an additional cost to the counterclaimant of £3300. (See receipt at Attachment1).



11.  The defendant asked if the counterclaimant needed any more work to be done and, despite the problems encountered on Project1, the counterclaimant agreed on 7 September 2020 to have more work done (Project 2) at an agreed price of £2580 and on similar payment terms to Project 1.



12.  As work commenced on Project 2 and was continued on the remaining work for Project 1, the counterclaimant had occasion to make several complaints to the defendant regarding the standard of his work.


13.   Barely a week after starting on Project 2, the defendant demanded payment for that work.  After a period of negotiation the counterclaimant agreed to pay him £2000 on 18 August 2020. 


14.  The counterclaimant subsequently paid the defendant  £1500 in cash.  Both parties agreed that this left a balance outstanding on Project 2 of £1080.



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


16.    On 21 September 2020 the counterclaimant highlighted and sent a snagging list to the defendant (Attachment 2).  Over a month later the defendant 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 (Attachment 3).  All of this snagging work remains undone by the defendant.



17.  Apart from the outstanding snagging work referred to in para 16 above, the defendant also left other work from Projects 1 and 2 uncompleted.  That work which was not completed is listed at Attachment 4.


18.  During the course of carrying out work on Projects 1 and 2 the defendant also negligently caused substantial damage to the counterclaimant’s property (as itemised in Attachment 5) by not executing the work with the skill expected of a reasonable tradesman.


19.  The counterclaimant seeks an order from the court directing the defendant to pay to the counterclaimant the sum of £nnnnnnn {Simeon - put in the actual total amount here} in respect of:


(a)   the cost of the piling referred to in para 10 above which the defendant could not undertake and another contractor had to be paid to complete;

(b)   the cost of completing work the defendant had left undone from Projects 1 and 2;

(c)   the cost of remedial work to put right the damage negligently caused by the defendant and referred to in para 18 above; and

(d)    the cost of the steel beam referred to in para 15 above.


A receipt in respect of item (a) - see Attachment 1 - and two priced quotes in respect of items (b) and (c) - see Attachments 6 and 7 - are attached in support of this counterclaim.





What I'm not entirely clear about are two points.


First, it's not 100% clear to me whether simeon can properly claim the £3300 in paras 10 and 19(a) or not.  What I mean is, simeon is arguing that this work required by his structural engineer was always within the agreed scope of Project 1.  But it's not clear to me if it was within scope or whether it was entirely new and unforeseen work.  As I see it simeon can only counterclaim this amount from the builder if it had already been incuded in Project 1.


Second, the basis of the counterclaim still seems extraordinarily thin to me.  Is it sufficient at this stage just to allege that the builder caused any damage negligently and is therefore liable to pay to put it right.


That's it from me I think...



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