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    • I had forgotten that the fleecers had already played a lot of their cards in the WS they made opposing your set aside application (post 12 for anyone looking in) so that means we can already tighten things up.   Obviously the paragraph numbering will now take one hell of a beating, but that can be sorted out later.   Observations in blue, changes in red.     IN THE COUNTY COURT SHEFFIELD    CLAIM NO: XXXX   HX PARKING LTD  (CLAIMANT) VS XXX (DEFENDANT)   Date: 3rd May 2022   Witness Statement   1. I Mr XXX, of xxx and I am the Defendant against whom this claim is made. 1.1. I was the registered keeper of the vehicle XXX. 1.2. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge they are true to the best of my information and belief.   INSUFFICIENT & CONFUSING SIGNAGE  This is likely to be one of your aces so will need a lot of work once you get photos.  The fleecers have also shown a plan where they claim there are signs (their WS post 12, PDF page 15 which you need to confront).   2. I confirm that i was the registered Keeper of the vehicle which is in question in this case and the vehicle was parked in Alma leisure centre Chesterfield. The vehicle was parked there because the driver went to McDonald’s for eat in (the bank statement proof exhibit 1).   3. There were no clear signs at the entrance nor in the car park, it was night time and weather was not clear as well.   3.  Even if the driver had seen the signs, they would have been extremely confusing.  A car is normally allowed to be parked for five hours, yet after midnight this is changed to one hour.  This begs the question for how long a motorist entering at 10pm for example is allowed to stay.  Is it for five hours until 3am or until 1am?   3.1. The PCN/NTK states "period of parking 00:02:05".  It is common sense that a couple of minutes was needed to enter the complex, find McDonald's and find a parking space, before the period of parking began, so it was likely the car entered the car park before midnight allowing the driver to park the car there for five hours.   4.  Even if the driver had seen the signage - they did not - the mention of a £100 charge is literally the last word on the last line of a long board of text.   4. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.     UNFAIR TERM   4.  In an interview with the local newspaper (exhibit XXX) Ms Ellie Berkeley, HX PCN administration team leader, said: “The five-hour maximum stay prevents workers from close by abusing the land and parking there for free, without using the shops on site" which makes sense.   5.  This therefore begs the question of why this limit is cut by a massive 80% after midnight when the cinema and eateries are still open.  The driver indeed ate at McDonald's.   6.  Ms Berkeley continued: "Five hours is sufficient time to visit the cinema and also eat at a restaurant".  Certainly five hours are sufficient.  One hour is not.    7.  I would maintain this is an unfair term under the Consumer Rights Act 2015 part 2 section 62 (6) ""A notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer".  Such a term has absolutely nothing to do with efficient management of a car park and everything to do with trying to catch diners or cinema-goers out and thus have an excuse to issue PCNs.   NO KEEPER LIABILITY   5. The Particulars of Claim do not clarify in what capacity they believe I am liable but state that the Defendant is “liable as the driver or keeper” of the vehicle. This appears to be “fishing” for liability.  Is this really in the PoCs? - you need to look and find out.    The rest of your section is about the use of POFA at airports which is completely irrelevant.    Adapt LFI's suggestions re POFA and keeper liability -   First is the fact that they must have a parking period and it is quite clear that entering and leaving the car park does not constitute a parking period since some of the time the motorist is either driving around looking for a parking spot then leaving the spot and driving to the exit. All that takes time so that is one fail.   The other fail is in their wording when they are trying to transfer the liability of the alleged debt from the driver to the keeper. They are supposed to include at Schedule 4 s9 [2][f] this "(if all the applicable conditions under this Schedule are met)". That in itself makes it non compliant but the fact that they haven't got a parking period means they haven't met the applicable conditions.   PROHIBITION  This deals with no stopping cases.  Yours in not no stopping so it is completely irrelevant.   LOCUS STANDI   You have quoted a different contract in a different place with a different PPC.  You need to read and try to find holes in the contract they produced (post 12, page 15 of the PDF for anyone looking in).   Adapt LFI's suggestions -   Looking at their contract, the names of the signatories and their positions in their respective  companies have been redacted. You do need strict proof of who actually signed. There is no specific authorisation from the Client to allow Court action in pursuit of non payers. In section 11 which is like an addendum it states" the Company shall provide parking control" but doesn't state if that includes legal pursuit as well and it does not appear to be signed.   ILLEGAL SIGNAGE   8. After checking, I have found out that there in NO planning permission granted for said signs, therefore making them illegal as lack of planning permission is a criminal offence under the Road Traffic Acts 1962 and 1991 and no contract can be performed where criminality is concerned.   LFI's suggestion -   They are supposed to comply with the Law and the IPC code of Conduct and they have done neither. The new Private Parking Code of Practice  draws attention to it as well  s14.1 [g]  "g) responsibility for obtaining relevant consents e.g. planning or advertising consents relating to signs."   ABUSE OF PROCESS  I've cut some bits out as the CoP hadn't been published when the fleecers went after you.  Are you sure the Unicorn Food Tax in the PoCs is £60?   9. The Claimant seeks recovery of the original £100 parking charge plus an additional £60 described as “contractual costs and interest” or “debt collection costs”. No further justification or breakdown has been provided as required under Civil Procedure Rule 16.4.    9.1. As part of the provisions of the Parking (Code of Practice) Act 2019, on 07/02/2022 a new Code of Practice was published by the government, designed to prevent these “rogue” traders from "ripping people off" (the minister's words) with extra charges, which have been deemed unfair (https://www.gov.uk/government/publications/privateparking-code-of-practice/private-parking-code-of-practice).    9.3. Section 9 of the new Code of Practice, regulates the matter of recovery costs: “The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued.”   9.2. Even before publication of the government’s Code of Practice, Parliament intended that private parking companies could not invent extra charges. PoFA Schedule 4, paragraph 4(5) states that “The maximum sum which may be recovered from the keeper is the amount specified in the notice to keeper” which in this case is £100.    9.4. Previous parking charge cases have found that the parking charge itself is at a level to include the costs of recovery ie: Parking Eye Ltd vs Beavis (2015) UKSC 67 which is the authority for recovery of the parking charge itself and no more, since that sum (£85) was held to already incorporate the costs of an automated private parking business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that an alleged “parking charge” penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending on the parking firm) covers the costs of the letters. Since 2019, many County Courts have considered claims in excess of £100 to be an abuse of process leading to them being struck out ab initio. An example, in the Caernarfon Court in VCS v Davies, case No. FTQZ4W28 on 4th September 2019, District Judge Jones-Evans stated ‘’Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued, he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.’’    9.5. In Claim numbers F0DP806M and F0DP201T, Britannia vs Crosby the courts went further in a landmark judgement in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain HamiltonDouglas Hughes GC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire. District Judge Taylor echoed earlier General Judgment or Orders of District Judge Grand, stating ‘’It is ordered that the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''    9.6. The addition of costs not previously specified on signage are also in breach of the Consumer Rights Act 2015, Schedule 2, specifically paras 6, 10 and 14.   Statement of Truth    I believe that the facts stated in this Witness Statement are true.   I understand that proceedings for contempt of Court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
    • Can you just remind us what is meant to be happening tomorrow
    • Thanks for your reply, we returned home to find the lock tampered with and it had been broken into. Our alarm system had gone off and we have the log of which systems within the house had been triggered showing they had been in the house. There was a letter left from a supposed bailiff addressed to a complete different property. The letter said they had been acting on behalf of SSE energy company. Our home and street are clearly signed, we have no idea how they have managed to mistake our home for the other property! SSE told us not to call the police and they would get back to us within 48 hours, no explanation or apology. We contacted the police anyway and got a crime number. Thanks 
    • Yes absolutely. The text is as follows:(identifying info removed)   Our response to your complaint     Dear xxxx I am sorry that you have had to raise concerns regarding your Credit File issues and thank you for your patience whilst I have investigated your concerns. Thank you for taking the time to talk to me today regarding these concerns. Your concerns As I understand, you raised concerns that your credit file had shown that there was an association with a previous joint account holder despite them being requested to be removed in 2016. Our findings I have received confirmation that the joint account holder, Miss BRIAN was not fully removed from the current account and her details remain associated with the account until now. This has been manually updated this week and details sent to TransUnion for their records to be updated. I would hope that they would take the information and backdate this to 2016 however, I suggested that it may be in your interests to contact TransUnion directly to ensure this is done. This letter is confirmation that this administrative error has been caused by Nationwide but if you require any further documentation to assist with your Credit File, please do not hesitate to contact me. I have sent a request for all associated financial details to be removed from your profile and this will be processed and TransUnion notified within the next 6 - 8 weeks. Our decision You advised that upon reflection, you have been affected by this over the years when applying for credit and I would like to apologise for any inconvenience or confusion caused by this. In upholding your concerns, I have arranged for £250.00 compensation to be credited to your current account ending xxxx, this will appear as a credit from sundries on your statement by close of business on Monday 14 February 2022. Your information The information you provide will be held by Nationwide. We’ll use it to process your complaint and resolve your concerns. Your rights You have the right to refer your complaint to the Financial Ombudsman Service, free of charge – but you must do so within six months of the date of this letter.  I’ve included a link to their leaflet, or you can visit their website – www.financial-ombudsman.org.uk.  If you do not refer your complaint in time, the Ombudsman will not have our permission to consider your complaint and so will only be able to do so in very limited circumstances.  For example, if the Ombudsman believes that the delay was as a result of exceptional circumstances. Next steps As previously explained, this letter is to confirm you’ve accepted the proposed outcome and we now consider your complaint to be resolved.  If there’s anything you’d like to discuss further, please reply to this message by sending an email to me at MS&[email protected] or you can contact me on 00000000000. Your complaint has been logged in accordance with our internal complaints policy. Our strategic root cause team will therefore be able to access your concerns if required, to identify trends in member dissatisfaction and identify improvements to our products and processes. While we cannot guarantee your case will be reviewed, we take member concerns seriously and therefore are constantly looking to identify areas of improvement. Yours sincerely Chris Hemming Member Relations Consultant Member Service
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Flaws in Defence counterclaim Help


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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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9 hours ago, Manxman in exile said:

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?

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

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8 hours ago, Manxman in exile said:

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.

 

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

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13 hours ago, Manxman in exile said:

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.

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.

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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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2 hours ago, Manxman in exile said:

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...

I have posted it and explained in reply to the new  defence counterclaim I adopted from you. Its nightmare getting through to the court. the lady at the court office  told me that,  to submit N224 for extension will cost me £175.00, may be I didn't hear her well as I believe that, it might be more than that. Can anyone help on this. I have been on to the phone to the court house just to make the payment, cant get through and still on the phone as at this moment. I have however sent a cheque in the phone to the court. 

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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...

=====================================================================================================

Counterclaim

 

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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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. 

 

Not in this instance...as the courts directed a particularised statement.

 

 

.

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1 hour ago, Manxman in exile said:

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.

 

The defendant at the time had excavated the front bay window which was filled with stagnant rainwater. Arguing about money paid out for the work he should have done at the time will only be messy when the project1 work was still there for him to do. Yes I agree to give more work to compromise by position on our  understanding of the of the payment i made. I have not queried his job up until 21/09/2020.  I just wanted him  to carry on doing the rest of the work . These were my reasons for giving project 2 to be better for both parties.

This counterclaim was excellently put together. I am beginning to feel you getting understand  this claim better. I am going to have a read again I come back to you while I wait for other to have their say, and thanks.

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Just trying to catch up with the thread after two long days at work.

 

@simeon1964 you keep mentioning a defence but the defence is no longer needed.  The defence was needed to counter the builder's claim.  You won.  The builder lost.  That part is over.

 

@Manxman in Exile has made an incredible effort - twice.  It's such a pity that all the work he did on the defence was wasted as that part of the claim was over.  The counterclaim doesn't have to be in brilliant legalese.  The common sense explanation that MiE has prepared and which will be clear to the judge is fine.

 

It is now up to @simeon1964 to flesh out the part in red in MiE's excellent description, with as much evidence as possible.

 

One thing still bugs me.  The builder was working on Projects 1 & 2, haphazardly, but he was doing the work.  Then he disappeared.  Why?  Why did he stop doing the work?  To me this is fundamental to the story, needs to go into the counterclaim description and has still not been satisfactorily answered by @simeon1964.

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5 hours ago, FTMDave said:

One thing still bugs me.  The builder was working on Projects 1 & 2, haphazardly, but he was doing the work.  Then he disappeared.  Why?  Why did he stop doing the work?  To me this is fundamental to the story, needs to go into the counterclaim description and has still not been satisfactorily answered by @simeon1964.

On the18/09/2020 he had already taken 2 payments for project1 and one payment for project 2 although I had verbally pointed out snagging, he was in the middle of the jobs nothing complete at the stage. I didn't document snagging until 21/09/2020. I believe he was multi-tasking at other jobs. There were building inspectors, structural engineer paid for the job to sign off . I  didn't want to rock the boat, ( i might not find somebody else to complete the job if I sack him, being covid19 period) he came when he wanted. His last visit was to concrete the front of bay window (where the underpinning took place by another tradesman, because he originally excavated the area.) but he didn't bother to come and check if the concrete set. He made bad job of it.

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16 hours ago, simeon1964 said:

The defendant at the time had excavated the front bay window which was filled with stagnant rainwater. Arguing about money paid out for the work he should have done at the time will only be messy when the project1 work was still there for him to do. Yes I agree to give more work to compromise by position on our  understanding of the of the payment i made. I have not queried his job up until 21/09/2020.  I just wanted him  to carry on doing the rest of the work . These were my reasons for giving project 2 to be better for both parties.

This counterclaim was excellently put together. I am beginning to feel you getting understand  this claim better. I am going to have a read again I come back to you while I wait for other to have their say, and thanks.

 

6 hours ago, simeon1964 said:

On the18/09/2020 he had already taken 2 payments for project1 and one payment for project 2 although I had verbally pointed out snagging, he was in the middle of the jobs nothing complete at the stage. I didn't document snagging until 21/09/2020. I believe he was multi-tasking at other jobs. There were building inspectors, structural engineer paid for the job to sign off . I  didn't want to rock the boat, ( i might not find somebody else to complete the job if I sack him, being covid19 period) he came when he wanted. His last visit was to concrete the front of bay window (where the underpinning took place by another tradesman, because he originally excavated the area.) but he didn't bother to come and check if the concrete set. He made bad job of it.

 

OK.  So if the judge - or anybody else - asks you "Why did you re-engage the builder if he was so useless?"  or "So the builder stopped working on your property in the middle of Projects 1 and 2?" you have answers ready for them.  (FWIW it wouldn't surprise me if the builder was working on more than just your job at the same time... )

 

You need to try to anticipate other possible questions you might be asked by the judge and have potential answers prepared.  Ask a friend or your wife to read your counterclaim and ask them whether any questions they might have spring to mind.  If your friends or your wife have questions about it, you can bet the judge will too.

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Also - and this is entirely up to you simeon because the counterclaim will be your document and it's you who is trying to win £16,000 - if I were you I think I'd be incorporating your report (or whatever it is - you've missed out the letter head) from Hale Survey Ltd that you posted in #4 in this thread and which they carried out in April 2021.

 

Doesn't that report and photos illustrate faults in your builder's work and examples of shoddy workmanship?  I would argue the report shows work not done to the sort of standard you would expect from a reasonably competent builder and therefore demonstrates negligence on the part of the builder.  (Now whether that is actually true or not I simply don't know - but it seems to be evidence you have of a job done badly... )

 

If I were you I would want to make reference to that report somewhere in your particularised counterclaim and I would also want to include it as an additional attachment/exhibit.  Because I don't know the context of that report within the overall saga, you will have to decide where in the counterclaim it goes.  It's part of your story.

 

(I think I suggested in an earlier post that you contact Hale Survey Ltd again and ask if they could help you in gaining more evidence to suport your counterclaim.  Have you managed to do so?  Just a quick 'phone call?  Even if they could only provide an email saying the work was of an extremely poor standard and not what you would expect from a competent builder might help your case... )

 

Just remember you have to be happy to stand beside everything in your counterclaim.  It needs to be accurate and truthful to your understanding.  DO NOT include anything in it just because I or anybody else has said to do so.  We aren't familiar with everything that has happened - you are.

 

 

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Due to the work that MiE has put in, I think what needs to be done now has changed from extremely complicated to very easy.  It's not like there is a hearing on Monday.  Just that a decent document has to be written in preparation for the future hearing.

 

All that is needed is for Simeon to include what estimates, and I would add what photographic evidence, he has to support points 19 (b) and 19 (c) of the counterclaim statement, as attachments/exhibits.  Plus of course any other evidence of the incomplete work and the damage as MiE points out above.

 

Another couple of things.  From the court order I think that the correct term for the builder in this is Claimant and for Simeon is Defendant/Counterclaimant.  I'll tidy that up in the counterclaim when i knock off work this evening.

 

A question for everyone.  Is "snagging" a term you're all familiar with?  Maybe it's just me and I know nothing about building work, but I have to admit I had to look the term up.  If it's in common everyday use in the UK, fine, if not a short explanation for the judge in the counterclaim would be a good idea. 

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7 hours ago, simeon1964 said:

On the18/09/2020 he had already taken 2 payments for project1 and one payment for project 2 although I had verbally pointed out snagging, he was in the middle of the jobs nothing complete at the stage. I didn't document snagging until 21/09/2020. I believe he was multi-tasking at other jobs. There were building inspectors, structural engineer paid for the job to sign off . I  didn't want to rock the boat, ( i might not find somebody else to complete the job if I sack him, being covid19 period) he came when he wanted. His last visit was to concrete the front of bay window (where the underpinning took place by another tradesman, because he originally excavated the area.) but he didn't bother to come and check if the concrete set. He made bad job of it.

So once again you reply but you don't answer the question.  Why did the builder stop working for you?

 

Let's try another way.  The errand boy came.  You e-mailed the builder.  He disappeared.  Have you got any evidence of later communication asking him to finish the work? 

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Understood HB, it's me then that knows nothing about building terms!

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 From the court order I think that the correct term for the builder in this is Claimant and for Simeon is Defendant/Counterclaimant. 

 

Defendant /Part 20 Counter Claimant

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I think I agree with FTMDave that what is important is that simeon has at least a half-way reasonable document to file by 4pm Monday.  (Is that right?  24 January?).  So simeon has almost 5 days yet to incorporate any further suggestions and improvements.

 

I'm certain a judge would be more than familiar with the term snagging.  Personally I would prefer something like "omissions and/or defects" but I suppose it's easier just to use snag(s) or snagging.

 

Thanks Andy for clarifying the correct terminology.  I wasn't certain if it was the original claimant and defendant still or whether that swapped around  in respect of the counterclaim.

 

What still concerns me a bit is whether simeon has sufficient evidence that his builder (1) caused the damage (2) and was negligent or in breach of contract.  I think the form of the counterclaim is OK but I'm not sure if the content is satisfactory in terms of a chain of argument.

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51 minutes ago, Manxman in exile said:

What still concerns me a bit is whether simeon has sufficient evidence that his builder (1) caused the damage (2) and was negligent or in breach of contract.  I think the form of the counterclaim is OK but I'm not sure if the content is satisfactory in terms of a chain of argument.

Counterclaim 24Jan Edit 2page.pdf

 

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