Flaws in Defence counterclaim Help

[Manxman in exile]

OK.  So that looks like you are progressing nicely?

 

I won't have a chance to look at all your attachments closely until later today or tomorrow, but it looks like you have quite a few quotes there to support the counterclaim.  See what others think.

 

A few questions to think about:

1.  Do the individual amounts on all those quotes and on the piling receipt add up to the total you are counterclaiming?

2.  Is it clear that there is no duplication between any of those different quotes?  What I mean is are you sure that two or more of those quotes do not cover the same work so that you are not claiming for the same work twice?  (Obviously you cannot do that!)

 

You will need to think about how best to incorporate each attachment into your counterclaim.  At the moment I'm a bit confused about which is which and how they are numbered etc.

 

I presume the quotes submitted to the court will need to be un-redacted, but I'm not sure.

 

If I were you I'd hang fire for now and wait to see if FTMDave has any more improvements to suggest later today.

[Manxman in exile]

Just to ask (because again you have not explained... ) have you amended anything in what I suggested yesterday as an outline for your counterclaim, or have you just included the attachments?

[simeon1964]

11 minutes ago, Manxman in exile said:

Just to ask (because again you have not explained... ) have you amended anything in what I suggested yesterday as an outline for your counterclaim, or have you just included the attachments?

Yes, just the grammar. all fine and I can defend it. I read it severally. just a little taken by para 9 and 11 but its fine now. As we don't want to give everything away. Its fine. This is my case I know it very well, yet its not usually the case when it becomes more litigious.  You tried your best in understanding the case and my difficulties.  How do you close the counterclaim?

[Manxman in exile]

Ah!  Just the grammar.  OK... 

[FTMDave]

OK, I've sorted out using the correct terminology to refer to the parties.

 

The original document was absurdly long and filled with waffle. I reduced it. Then MiE did so further – twice. I've continued on the theme and have merged (13) & (14) as I don't think we need to go into detail of why a £2000 payment because £1500, it'd just confuse the judge.  Feel free to disagree!

 

I've sorted out the new numbering and references to paragraph numbers.

 

IMO (16) needs beefing up to explain why the builder disappeared, but simeon seems to not want to explain this properly, so so be it.

 

Apart from that it looks about ready to go.

 

Counterclaim

 

1.      The original Claimant agreed to undertake building work (Project 1) at the original Defendant/now Part 20 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 Defendant/Part 20 Counterclaimant and that the Claimant’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 Defendant/Part 20 Counterclaimant 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.

 

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 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.

 

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

 

7.      On 24 August 2020 the Claimant asked the Defendant/Part 20 Counterclaimant to arrange an inspection of his work by the Building Control Inspector.  The Claimant also stated that Project 1 was approaching mid-way and the Defendant/Part 20 Counterclaimant paid the second instalment due.

 

8.      The Building Inspector arrived to inspect the Claimant’s work but the Claimant was absent.  The inspector was obviously very displeased by the standard of the Claimant's work.  The inspector spoke to the Claimant 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 Defendant/Part 20 Counterclaimant to be passed on to the builder.  The building inspector then said he would be getting in touch with the Defendant/Part 20 Counterclaimant’s structural engineer with his findings and the Defendant/Part 20 Counterclaimant should hear from the engineer soon.

 

9.      The Defendant/Part 20 Counterclaimant passed on the Building Inspector’s instructions to the Claimant who agreed to follow them.

 

10.  The structural engineer visited and recommended piling to complete the underpinning for Project 1.  The Claimant explained that he could not undertake this work. The structural engineer then suggested an alternative company to the Defendant/Part 20 Counterclaimant to do the necessary work and this company was engaged by the Defendant/Part 20 Counterclaimant to complete the necessary piling at an additional cost to the Defendant/Part 20 Counterclaimant of £3300. (See receipt at Attachment1).

 

11.  The Claimant asked if the Defendant/Part 20 Counterclaimant needed any more work to be done and, despite the problems encountered on Project 1, the Defendant/Part 20 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 Defendant/Part 20 Counterclaimant had occasion to make several complaints to the Claimant regarding the standard of his work.

 

13.   Barely a week after starting on Project 2, the Claimant demanded payment for that work.  After a period of negotiation the Defendant/Part 20 Counterclaimant paid the Claimant  £1500 in cash.  Both parties agreed that this left a balance outstanding on Project 2 of £1080.

 

14.  It later came to the Defendant/Part 20 Counterclaimant’s attention that the Claimant had removed material (including a steel beam) from the Defendant/Part 20 Counterclaimant’s property that the Defendant/Part 20 Counterclaimant suspects either belonged to him or had been paid for by him in connection with Project 1.  When challenged the Claimant admitted he had done this.  The Defendant/Part 20 Counterclaimant has included the value of this material in his counterclaim detailed below.

 

15.    On 21 September 2020 the Defendant/Part 20 Counterclaimant highlighted and sent a snagging list to the Claimant (Attachment 2).  Over a month later the Claimant 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 Claimant.

 

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

 

17.  During the course of carrying out work on Projects 1 and 2 the Claimant also negligently caused substantial damage to the Defendant/Part 20 Counterclaimant’s property (as itemised in Attachment 5) by not executing the work with the skill expected of a reasonable tradesman.

 

18.  The Defendant/Part 20 Counterclaimant seeks an order from the court directing the Claimant to pay to the Defendant/Part 20 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 Claimant could not undertake and another contractor had to be paid to complete;

(b)   the cost of completing work the Claimant had left undone from Projects 1 and 2 referred to in para 16 above;

(c)   the cost of remedial work to put right the damage negligently caused by the Claimant and referred to in para 17 above; and

(d)    the cost of the steel beam referred to in para 14 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.

[FTMDave]

I see simeon  has several quotes for remedial work and also a report on some of the damage.  They need to be given exhibit/attachment numbers and linked to (16) and (17).  That is simple clerical work, you don't need any legal knowledge to do so.

 

Obviously the piling receipt has to be linked to (10).

 

As MiE has pointed out, the total needs to go in (18) and personally I would include the four sub-totals in (18 a b c d).  After all, the court did ask for a properly itemised counterclaim.

 

If simeon can do the above tomorrow we can then add Andyorch's point about interest at the end.

[Manxman in exile]

@FTMDave  -  Simeon's had a go at incorporating the attachments at #100 (I think?) but I think what he's done needs tidying up.  But as you say that's just an admin/clerical task and all simeon needs to do is to ensure that it all hangs together and makes sense.  Doesn't require specialist knowledge.

 

I agree with your comment regarding my paras 13 and 14.  You've made it clearer than I did!

 

I've also advised simeon to incorporate the report he got from the surveyor.  (Was it Hale Survey Limited?)  Let's see how he got on.

 

Oh - I also introbuced an error in my draft.  I had simeon down as paying the piling company £3300 but it was only £3000 (I think).  Simeon needs to check that the correct figure is in.  (Simeon had corrected my error* in #100.  I think you may have missed that because you've got a day job to do!)

 

Oh - and of course simeon needs to ensure that he has taken account of the corrections you have made to the claimant/defendant terminology.

 

Apart from the above and the interest, I'm not sure if anything else is required.  It's up to simeon now... 

 

*I think the only thing simeon changed in #100 from my earlier draft was the piling bill from £3300 to £3000, and he attempted to add the attachments.  It might have been better - and less confusing for you! - if he'd left that until you'd completed your amendments.  Ah well...

[simeon1964]

ManxmanIE: Looking  at the counterclaim again, I questioned myself, what has the builder completed? having looked at the two projects, my answer is nothing. Yes we have building regulation certificate for the work done or complete. But it was like open the inspection panel, let see under the bonnet or look at the condition of the engine,  everything  ok close it back, and the Inspector is gone on his way to write his report, and you made a mess of shutting the bonnet and things went into snagging mode with promises of sorting it out. The builder has damaged, was negligent, task was uncompleted, caused me money, took money and run ,. I was completely ignorant of his agenda. We were friends, bought me couple of bags of chips  at lunch time in return for helping him buy petrol to power some of his tools. He only asked for money 3times and he got it on each occasion. He never confronted  me that I owe him money. 

[simeon1964]

Cclaim Attach 3and4.pdf

 

Is this ok chaps? I have two to three tradesmen to cover receipts. still waiting a surveyor

[honeybee13]

I'm not clear how all of those figures add up to £16k, to be honest. See what the others thing but I'd have thought the judge would find it useful to have a grand total figure at the end of your schedule.

 

At the end, is 'Abbravations' meant to be Abbreviations? Also, I would change 'To be assess' to 'To be assessed'.

 

HB

[Manxman in exile]

Honeybee - Actually the figures that simeon has posted in #109 do add up to the amount of £16577.12(?).  I've checked them.

 

So that is good (I think?).  Whether the individual amounts on there tie back to the quotes etc that simeon has, I do not know.  I also don't know whether any of the amounts are duplicated.  Only simeon knows that.  (Simeon - that is not a question I want an answer to - it's something for you to be sure about before you submit your counterclaim)

 

I also agree with you about using "To be assessed" rather than "To be assess."  Although I'm not sure if simeon would be better advised to put in an estimated figure (and clearly show it's an estimate) otherwise that amount is not going to be included in the amount he is claiming.  Do you see what I mean?  I don't know the answer to that.

 

@simeon1964  -  can you hold off posting anything else for now while I think about where you are in producing this.

 

I'll post again shortly.  It may be several different posts as I think it may be easier for you to follow if there is only one or two points for you to take note of in each post.  The more points there are in a post, the more likely the reader is to miss them.

 

(One other thing though.  On your schedule you have some items on there marked "TBA" with no amount next to them, but then you have other items marked "TBA" with an amount against them.  Why?  You either need to be consistent or explain clearly why you are not being consistent!

 

Remember - the judge or anybody else who reads your counterclaim and exhibits needs to understand it all first time they read it.  Don't make it confusing for them.  OK?

Edited January 21 by Manxman in exile

[Manxman in exile]

6 hours ago, simeon1964 said:

ManxmanIE: Looking  at the counterclaim again, I questioned myself, what has the builder completed? having looked at the two projects, my answer is nothing. Yes we have building regulation certificate for the work done or complete. But it was like open the inspection panel, let see under the bonnet or look at the condition of the engine,  everything  ok close it back, and the Inspector is gone on his way to write his report, and you made a mess of shutting the bonnet and things went into snagging mode with promises of sorting it out. The builder has damaged, was negligent, task was uncompleted, caused me money, took money and run ,. I was completely ignorant of his agenda. We were friends, bought me couple of bags of chips  at lunch time in return for helping him buy petrol to power some of his tools. He only asked for money 3times and he got it on each occasion. He never confronted  me that I owe him money. 

 

Forget all that.  I don't think anybody is interested about who bought who chips - it's totally irrelevant.

 

All you need to persuade the court of is (a) you paid him money to do a job which he did not complete and requires completion by others, and (b) of the work he did do for you, it was not carried out with the care and skill that you would expect from a reasonably competent tradesman/builder and he thereby caused damage to your property.  You want compensating for the cost of completing (a) and putting right (b).

 

Your particularised counterclaim and attachments will do that persuading.  That's all.

[Manxman in exile]

Attachments (Exhibits)

 

FTMDave and I have called them "Attachments" but I note Andyorch used the term "Exhibits".  I don't think it makes any difference which you use but perhaps Exhibits is more correct.  Whichever you use, make sure you use the term consistently.  (i'm going to use Attachment for now).

 

You use Attachments as supporting evidence for things you mention in the numbered particulars of your claim.  Might be a report from a third party or a quote from a third party.  In the relevant numbered particular of your claim you refer to the appropriate Attachment supporting that part of the claim.  eg like this "(See Attachment A)".

 

You can use numbers or capital letters to identify each Attachment.  I don't think it matters which but be consistent in your usage.

 

It helps if the Attachments are organised and incorporated into your claim in a logical sequence.  (eg A, B, C etc)

 

Make sure each attachment is clearly labelled "Attachment A"  etc.

 

If it is not immediately clear to the reader what an attachment is, put a brief description.  Eg "Quote from XXXXX Ltd to complete unfinished plastering" or whatever.  Make sure the reader can understand what each attachment is.

 

Ideally each Attachment will be no more than one page.  So you can make the labelling of attachments even clearer by labelling them "Attachment A  -  page 1 of 1" etc etc.

 

If an attachment is longer than one page you label it "Attachment A - page 1 of 2" and then "Attachment A - page 2 of 2", or whatever it is.

 

By doing all that you are making it easier for the judge to follow - and you want the judge on your side...

 

Now - what you've posted in #109 is helpful because it adds up to to £16577.  Which is good.  But if I were the judge, I'd want to know where the individual items come from.  

 

So what you have posted in #109 should - I suggest - be your final attachment.  Let's call it "Attachment H" for now.  So at the end of your particulars of counterclaim where you say you are claiming £16577 from the defendant, you put the reference "See Attachment H".

 

The judge then looks at Attachment H and sees a total of £16577.  What you then need on Attachment H next to each individual item on there, is a reference to which earlier Attachment that item comes from.  eg "See Attachment C".  The judge can then look at Attachment C and understand where the item on Attachment H comes from.  By doing that rigorously and methodically for each item on Attachment H you are justifying each item and the total of £16577.  Yes?

 

Your schedule in #109 is OK but raises questions that need answering.  eg:

• spelling as spotted by Honeybee13
• Grand total as spotted by Honeybee13
• TBA or estimates as per my previous post and Honeybee
• why is it in two separate sections (£8577 and £8000)?
• The item numbering is absolute garbage

At the end of the day it is going to be the detail (or lack of detail) in your attachments that will win (or lose) you the case.  It has to be just right and you have to be consistent.  It has to be logical, methodical and consistent so it can be understood immediately.

 

I don't want you to give me answers to these questions.  I want you to act on them.

 

As I said earlier, don't post any more work you have done for now.  Wait until FTMDave is back this evening so we are all working from the same page at the same time.

 

If Andyorch or FTMDave suggest anything that disagrees with me, go with what they say.  They know more than me.

 

(I suspect one of them might suggest some kind of contents list identifying and listing all the different attachments)

 

 

Edited January 21 by Manxman in exile

[Manxman in exile]

simeon  -  if FTMDave doesn't look in tonight and nobody else does either, we'll look at your submission again tomorrow.

 

If you can think about preparing and putting in order your Attachments/Exhibits as discussed earlier today, that might be helpful.

 

If I were you I would also be thinking about what you have at the moment as a fall-back that you can submit on Monday if you can't produce anything better in the meantime.  I'd suggest looking at #105 for the body of your claim, combined with Attachments/Exhibits as discussed earlier.

 

Just try to make sure you have some sort of fall-back document ready to go for submission in case nothing better turns up over the weekend...

 

 

[FTMDave]

I'm watching football tomorrow but will be home at 4pm UK time and happy to look in.

 

It would be extremely helpful if by then Simeon had got on with the suggestions in posts 106-114 so we can do the final tweaking tomorrow.

[Manxman in exile]

Later today then.

 

I will look at what there is again this pm and if any further ideas will post them.

 

NB - Need to remember to claim interest too.

[simeon1964]

I noticNLeak Loft 2022.pdfI noticed water leaking into my loft 3weeks ago from the chimney my builder worked on, so I called in a roofer. Wonder if this evidence is good.

[Manxman in exile]

Might be.  Has the roofer who looked at it for you indicated that the problem might be down to shoddy work from the builder?  Can he send you something on paper confirming that, which you can add into your counterclaim and put in another Attachment.  As you are a bit short of time an email might do.

 

[Manxman in exile]

I see he's given you photos of before and after.  If he's saying that the poor condition of the chimney "before" has been caused (or has been contributed to by) your builder, and it was work you've paid your builder for, I'd include it as evidence. 

 

Have you included the cost of putting that right in your claim?

[Manxman in exile]

OK - I've read FTMDave's suggested particulars posted in #105 and I can't really see that they can be improved upon.  His explanation of the £2000/£1500 paid in respect of Project 2 certainly makes more sense than mine did.

 

The only things I would say are:

 

1.  I wonder if it should be headed "Particulars of Counterclaim" and not just "Counterclaim"?  I don't know if it matters but it might give a better impression to the judge?  (I know it shouldn't matter, but in my experience first impressions do matter).

 

2.  simeon - make sure the amount referred to in para 10 is the correct amount.  I mistakenly put £3300 in my first redraft but I think it's only £3000.

 

3.  I didn't originally number the very last paragraph after 18(d), but I think it will read and look better if that last sentence is numbered 19.

 

4.  I'm not sure but I think I would suggest adding a final para 20 as follows:

 

"20.  List of Attachments

    

        Attachment A  -  one page  -  brief description of what Attachment A is...

        Attachment B  -  one page  -  brief etc...

        Attachment C  -  one page  -  brief etc...

        Attachment D  -  two pages  -  brief etc...

        and so on...

        Attachment H (or whatever)  -  one page  -  Summary breakdown of amount claimed"

 

@simeon1964  -  you then need to make sure that all your attachments are correctly ordered and lettered (or numbered) and that they all cross-reference correctly to the "Particulars of Counterclaim".  As FTMDave said in a previous post, that's simply a clerical task for you to complete and doesn't require input from anybody else.

 

@simeon1964  -  if you have time this afternoon there's a couple of things to think about before FTMDave returns from the football:

 

1.  Can you try to put your attachments together as suggested in #113?  eg  Label each one "Attachment A etc.  -  page 1 of 1 etc" and put in a description if it's not obvious from the attachment itself what it is.

 

2.  Make sure the final attachment which summarises the amount you are claiming can be tied back to the other attachments - so the judge can clearly see how you have arrived at the total amount.

 

3.  If you want to include what the roofer has told you, think about where it logically needs to go in the particulars.  You may as well draft a paragraph to introduce it in the particulars too

 

4.  You still need to include interest in your claim.  I'm sure FTMDave or Andyorch will explain how.

 

For the moment don't waste your time doing anything else other than what I've suggested above.  Wait for input from FTMDave this afternoon.

 

If all the above can be done, you ahve at least something that makes sense that can be submitted Monday.

 

Good luck.

 

 

 

 

 

[simeon1964]

See if this is in order please. I photo of the chimney and Hale Surveys remaining.

 

Bundle 24 JanM.pdf

[Manxman in exile]

Haven't got time to look at the moment but I will later this evening.

 

At least you probably have something that can be submitted as a last resort - if needed,

 

Let's see what FTMDave has to say when he's back from football

 

EDIT:  You may need to check again what I said in #120 about numbering the current last paragraph of the counterclaim as para 19 and then adding a new final paragraph no. 20 - List of Attachments

Edited January 22 by Manxman in exile

[simeon1964]

Just your attention to this attachment, that  the authority certification, refers to the project as underpinning not piling.

 

Last page 13underpinning.pdf

[FTMDave]

I realise this is urgent, I will look in this evening.

[FTMDave]

I've started to look at this and see that Simeon has completely ignored post 105 and refers to himself and the builder with the incorrect legal terms. 

 

Nothing has been done re the four sub-totals at the end, this in a document which is supposed to particularise everything for the court.

 

I for one have not got time to constantly repeat the same things that need to be done, especially as someone else on the the site has asked for help with a Witness Statement this evening.

 

If/when Simeon uploads a version that includes the important changes that have been suggested in order to make things clear to the judge, I will help with any tweaking.