Flaws in Defence counterclaim Help

[simeon1964]

received this

..

 

 

 

 

2022-03-21 General form of judgement or Order.pdf

[FTMDave]

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

[simeon1964]

Do I have alternatives?

 

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

 

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

 

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

 

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

 

How do I protect this happening.

Edited April 2 by dx100uk
formatting

[FTMDave]

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

 

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

 

Dear XXXXX

 

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

 

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

 

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

 

Yours,

 

XXXXX

 

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

[FTMDave]

So did you send that off on 3 April?

 

Has there been any response?

[simeon1964]

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

[Manxman in exile]

On 31/03/2022 at 13:35, simeon1964 said:

received this

..

 

 

 

 

2022-03-21 General form of judgement or Order.pdf 151.82 kB · 2 downloads

 

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

 

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

 

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

 

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

 

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

 

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

[Manxman in exile]

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

 

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

 

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

 

Dear XXXXX

 

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

 

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

 

I would also like to ask if whether you still stand by point 17 of your client's defence in which you state your client intends to submit a further counter schedule of loss?  I remind you that your client's claim has already been the subject of litigation and the claim was dismissed by the Court.  And when your client sought to have that decision set-aside, the court rejected that application.

 

Yours,

 

XXXXX

 

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

 

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

 

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

 

 

Edited April 10 by Manxman in exile

[Manxman in exile]

On 01/04/2022 at 11:24, simeon1964 said:

Do I have alternatives?

 

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

 

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

 

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

 

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

 

How do I protect this happening.

 

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

[FTMDave]

Simeon is the Part 20 Claimant.

 

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

 

What I suggested can't harm him.

 

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

Edited April 12 by FTMDave
Typo

[simeon1964]

The General Form of Judgement or Order  of the 28th March 2022, Marked Simeon1964 as Defendant. He can not be translated to mean otherwise.

I want to believe that the court process has moved on from Simeon1964 being counter-claimant. I can still do the letter if desirable, I have till 23rd May.

[FTMDave]

Yes, you have till 23 May but that is when the process is supposed to terminate.

 

The builder is an idiot with a history of ignoring court orders and has stupidly relied on a solicitor to do everything for him.

 

You have a golden opportunity here to get in first, come across to the judge as the reasonable one, and embarrass the builder.

 

I would have sent the letter on 3 April, but it's up to you, it's your 16 grand not mine.

 

 

[simeon1964]

 

The claimant's Solicitors:

 

" I have been instructed to offer a settlement on a drop hands basis with both parties bearing their own costs."

[FTMDave]

OK, so what are your comments on this "offer"?

 

Presumably you reject it completely.

 

Was it in reply to the letter Manxman in Exile & I drafted?

 

 

[simeon1964]

This is not a serious offer. Looks like playing games. Going 2years now since i cant continue the repairs and the quotes to update the house is never going to remain same. Not serious and a waste of time

[FTMDave]

You're absolutely right.

 

Did you send the letter Manxman in Exile & I drafted?

[simeon1964]

Yes

7 hours ago, FTMDave said:

Did

 

7 hours ago, FTMDave said:

Did you send the letter Manxman in Exile & I drafted?

yes

[FTMDave]

OK, well done.

 

That will show the judge that you took the initiative to negotiate and the other party has been unreasonable and offered £0.00.

Edited May 11 by FTMDave
Typo

[FTMDave]

I suggest you reply with something like -

 

Dear XXXXX,

 

thank you for your e-mail of XXXXX.

 

An offer of essentially £0.00 in a claim for nearly £16,600.00 is not a serious attempt to negotiate and I will communicate this to the judge.

 

I ask you again whether you still stand by point 17 of your client's defence in which you state your client intends to submit a further counter schedule of loss although you know full well that the matter has already been the subject of litigation and the claim was dismissed by the Court.

 

Best regards,

XXXXX

 

However, hang on for 24 hours and see what others think.

 

[FTMDave]

No-one has objected, so send the above.

[simeon1964]

On 11/05/2022 at 12:53, FTMDave said:

I ask you again whether you still stand by point 17 of your client's defence in which you state your client intends to submit a further counter schedule of loss although you know full well that the matter has already been the subject of litigation and the claim was dismissed by the Court.

 

What the Defence says at para 17 is,

 

If the Part 20 Claimant establishes any breach of contract or negligence, which is

denied, the Part 20 Claimant is put to proof as to the nature, cause and extent of

such losses. The Part 20 Defendant intends to submit a further counter schedule

of loss once the Part 20 Claimant has provided full disclosure in the case.

 

What exactly does this mean if this matter was dismissed by the court? and what full disclosure?

[FTMDave]

The judge has fixed this negotiating period.

 

After that there will be a hearing.  Before the hearing you will have to produce a Witness Statement.  The WS is "full disclosure".

 

The builder's solicitor is pretending that at that point they will produce a list of the builder's losses but it's a bluff as the builder's claim has already failed in court.  Which is why we keep mentioning it to show the builder's solicitor we know he is full of bull.

[simeon1964]

I need help with the issue of negotiation.

 

My loss to date is more than 16k as my property deteriorate daily, only habitable for me alone.

 

I may not die with my life threatening sickness but i am wary daily of being electrocuted in my home with live electrical flicking in my face daily resulting from the way the builder left my house uncompleted.

 

Yes I want to move on but where do i start ?

£16k two years ago will be more by the time claim is concluded.

[FTMDave]

I'm sorry about the position you're in, but unfortunately you're stuck with the times of the law system in England.

 

This daft mediation period is nearly over, hopefully it won't be too long till a hearing.

 

The big mistake was not enforcing when you won the first time round, I don't know what your useless solicitor was doing - or rather not doing.

 

If there is electrical danger in your home then get it fixed and keep the invoices as proof of the builder's incompetence.

[simeon1964]

On 12/05/2022 at 23:03, FTMDave said:

The judge has fixed this negotiating period.

 

Is it the fixing of the" negotiating period"  that overruled or dismisses the point 17 of the client defence?, as I couldn't find any order to that assertion? or where do i find order that this was dismissed.