Run a small construction co. - client won't pay final invoice. - help RE: Small claims please Resolved

Kwabena · April 21, 2022

Just writing up my reply, have a quick question

I'm up to this bit..

"You could say to him that if it helps, he should identify those aspects of the work with which he is completely satisfied and settle the bill in respect of those in order to mitigate his situation and to reduce any dispute to a minimum.
You suggest to him at that point that he should then bring in his own independent expert for an assessment of the situation. He will need to do that anyway and at his own expense if he wants to defend the matter in court"

The way we were working was payment for labour every week. The amount of labour on the final invoice is 3 days each for me and someone else I employ, as well as the materials. We spent this time finishing random jobs, tying up loose ends and clearing the site of all our tools, equipment. sweeping etc.

That's really all this invoice is for so will the above statement be relevant ..i.e. any aspects of work he is unhappy with would potentially have been paid already

BankFodder · April 21, 2022

So what work is the actually withholding payment on?

Kwabena · April 21, 2022

No specific work...just the last 3 days labour on a daywork contract plus materials that had been bought through my accounts. Everything else has been paid as we go

BankFodder · April 21, 2022

Does this work or as a basis for some modified version

Quote

So far, despite my repeated questions to you you have not expressed any objections to any of the work which has been carried out.

When I begin my court action against you you will have to do this and it seems a shame that it will take the commencement of litigation to persuade you to express the misgivings of the problems you have with settling my bill.

If you feel that you have some particular objection then now is the chance to say it in order to save the addition of court costs to the judgement debt which you will inevitably incur.
If your objection covers the entire amount of the unpaid invoice then please say so and say what your objections are.
If you object only to a portion of the invoice then I suggest that your best interests will be served by expressing those objections and also paying the amount of the invoice to which you don't object in order to mitigate your eventual loss in court.

However you should understand that even though you now appear to be embarking on an exchange with me, it is quite clear that this has only happened because I have now given you a deadline for court action.
I'm very happy to continue dialogue with you that you should understand that in view of your unwillingness to discuss this matter properly I'm not prepared to be deflected from my deadline for court action.

If you express an objection to part of the invoice then if you're prepared to pay the undisputed amount immediately then I will be prepared to extend the deadline for my court action by 14 days.

It's up to you. I'm not sure that I can say anything more.

Please understand all of this correspondence will be shown to the court

Kwabena · April 21, 2022

Thats fantastic!! I'll modify slightly and include my responses to his questions (unless you think differently) and re post here in a bit

Kwabena · April 21, 2022

So here is the reply combining all of your suggestions..is this good?

Hi ****

I am happy to answer your questions and to maintain a dialogue which will help to solve the problem. However, I have been attempting to have this dialogue for some considerable time now and and so far you have not joined in any particular exchange.

To answer these questions

It was the option building control advised and the option I discussed with you on multiple occasions
I'm not sure what you mean by "did I discuss installation of the drain", who is it you are referring to?
My knowledge/experience of drainage systems is that we install all our own drainage whenever we are required to when we undertake works needing drainage and have never had a problem. I have no experience of pumped systems and I made this clear to you on an email prior to ordering this drain and was quite clear that I was taking advice from suppliers and reps to help you choose the pump.
I don't know if materials are from my account or yours...I don't intend to collect them as you asked for all remaining materials to be left on site on our last day
Sometimes when we went to XXXXX materials were out of stock, wet, not in good condition or more expensive than other suppliers. I tried to use XXXXX as much as possible but also used my experience to judge when it was more practical to go somewhere else. You were generally offered the chance to pay my suppliers directly to save the 10% mark up which you did more often than not.
Please be aware that it would have been so much easier for me to use XXXXX all of the time and not have to deal with all the paperwork/bookkeeping (which cost me more money than I am charging you). I used my accounts purely to get a better product/price where I thought it was appropriate

So far, despite my repeated questions to you you have not expressed any objections to any of the work which has been carried out.

When I begin my court action against you you will have to do this and it seems a shame that it will take the commencement of litigation to persuade you to express the misgivings of the problems you have with settling my bill.

If you feel that you have some particular objection then now is the chance to say it in order to save the addition of court costs to the judgement debt which you will inevitably incur.
If your objection covers the entire amount of the unpaid invoice then please say so and say what your objections are.
If you object only to a portion of the invoice then I suggest that your best interests will be served by expressing those objections and also paying the amount of the invoice to which you don't object in order to mitigate your eventual loss in court.

However you should understand that even though you now appear to be embarking on an exchange with me, it is quite clear that this has only happened because I have now given you a deadline for court action.
I'm very happy to continue dialogue with you, but you should understand that in view of your unwillingness to discuss this matter properly I'm not prepared to be deflected from my deadline for court action.

If you express an objection to part of the invoice then if you're prepared to pay the undisputed amount immediately then I will be prepared to extend the deadline for my court action by 14 days.

It's up to you. I'm not sure that I can say anything more.

Please understand all of this correspondence will be shown to the court

Edited April 21, 2022 by BankFodder
Edits in red

BankFodder · April 21, 2022

edit in red

Kwabena · April 22, 2022

I have received another reply...Just off to work so will check back in later

****

The drain and pumps were commissioned (i.e. became usable) on Wednesday the 13 April when **** **** Services completed the installation work. On the morning of Friday the 15th April you then sent your letter before action email.

The communication from me is because the drains have now been tested.

In my email of the 13 March I confirmed that I would respond to you, however your letter before action changed what the response would be.

The last payment was delayed because the internal drains could not be tested.

Because of the breakdown in trust, my preference is to resolve this by email.

In your last email you say that it is the threat of court action that has prompted an exchange, however concerns over the final bill have previously made.

Your threat of court action has meant I am asking questions about the reason why this solution was suggested. I have contacted Building Control as well in line with your response as you have suggested this was their advice.

The cost of the installation has been c£3,500 (in addition to the cost of the pump).

The reason for asking about your conversations with suppliers was to ascertain was the cost of installation discussed?

The 4 firms who came to quote all stated that the pump was an expensive solution and the existing drains could have been changed. I am not clear why this option was not pursued. I just accepted your advice that this was the only option and in hindsight I wish I had asked other companies with appropriate experience to provide the solution.

In your email you ask me to express any objections to the work you have carried out. I have asked in the last 2 emails what work you are taking responsibility for.

Once you have replied to the above then we can move onto discuss payment.

Kwabena · April 22, 2022

I've had a bit of time to digest this now and have put some thoughts in red after some of the clients comments. I am not necessarily suggesting them as replies to him, just information for you

The drain and pumps were commissioned (i.e. became usable) on Wednesday the 13 April when **** **** Services completed the installation work. On the morning of Friday the 15th April you then sent your letter before action email.

The communication from me is because the drains have now been tested.

In my email of the 13 March I confirmed that I would respond to you, however your letter before action changed what the response would be.

And a month passed after that with silence from them despite my asking for some basic information such as what they meant by "commisioned" and when I could expect for this to take place

The last payment was delayed because the internal drains could not be tested.

Because of the breakdown in trust, my preference is to resolve this by email.

In your last email you say that it is the threat of court action that has prompted an exchange, however concerns over the final bill have previously made.

Your threat of court action has meant I am asking questions about the reason why this solution was suggested. I have contacted Building Control as well in line with your response as you have suggested this was their advice.

The cost of the installation has been c£3,500 (in addition to the cost of the pump).

The reason for asking about your conversations with suppliers was to ascertain was the cost of installation discussed?

No cost of installation was discussed

The 4 firms who came to quote all stated that the pump was an expensive solution and the existing drains could have been changed. I am not clear why this option was not pursued. I just accepted your advice that this was the only option and in hindsight I wish I had asked other companies with appropriate experience to provide the solution.

I agree the pump is an expensive solution...it doesnt necessarily mean its the wrong solution. What suggestions did they make?

In your email you ask me to express any objections to the work you have carried out. I have asked in the last 2 emails what work you are taking responsibility for.

I am happy to take responsibility for any work I have taken payment for and not for any work other people have been paid directly to do

Once you have replied to the above then we can move onto discuss payment.

BankFodder · April 22, 2022

I don't understand this

Quote

And a month passed after that with silence from them despite my asking for some basic information such as what they meant by "commisioned" and when I could expect for this to take place

You say that no cost of installation was discussed – but you did install it. There is an implied term that where a price has not been agreed then a reasonable price will be implied.

Would you say that the price that you apply to this installation was reasonable? Would you be able to substantiate that by getting comparative quotes?

How does the price of the pump – the expensive solution – compare with the price of changing the existing drains? No he seems to be mentioning figures here.

Your initial response about respecting your obligations under the consumer rights act is a more than good enough answer. We will also go on to point out that they have a reciprocal contractual duty to pay you within a certain amount of time.
Payment so far I understand has been made within how many days of the invoice being submitted? And how many invoices?

Kwabena · April 23, 2022

Maybe i should have done this sooner, but i'll attach the working drawing which I have adjusted to show the drainage runs and what was done by who.

I literally put 3 metres of empty pipe into the ground with a slight fall towards the outside ready to be connected onto at a later date. Picture the downpipe from your guttering but laid horizontally underground.

As you can see from the note on the drawing which I have circled, the drains were always an unknown quantity and we have swapped emails before the job started discussing this. It was always going to be a case of once the job starts we find the drains and go from there.

The installation that they are asking about on their email is for the pump and is not work that I carried out.

I honestly don't know how the costs compare with adjusting the drains instead of the pump. We did look at all possibilities and even lifted next doors drain to look at options of joining in further down the run but it didn't seem possible/practical

It's not uncommon for other builders/contractors to go onto a job after another builder and just start saying things like "I wouldn't have done it like that....shoulda done this mate", especially with the client asking them questions that would lead them that way.

It's all well and good saying that we should have adjusted drains and done it differently but I doubt anyone has investigated the possibilities of actually doing that as much as we did or has a clear picture of how this would work. Its all generic...I don't hear any specific ideas of how we should have done it coming from them

As a side note as I don;t know much about this, how does the consumer rights act apply in this case. I did a look for information n it and it seems that it would be saying that all of our previous communication is taken into account and forms a contract of sorts..or have I mis understood?

Drain layout.pdf

BankFodder · April 23, 2022

I'm afraid that I won't be able to go through The drawings etc.

We can only help you on the legal aspects, but in terms of actually making your case, that really will be completely up to you.

I hope you don't think I'm being unhelpful.

In terms of the consumer rights act, you have a legal obligation to exercise reasonable skill and care in every aspect of the contractual work that you undertake .

So if you are advising or suggesting a particular solution then you have to take reasonable skill and care with that.

If you then actually have to do the installation you have to exercise reasonable skill and care with that as well.

The work must be carried out in a timely manner.

I think it is very significant that this guy has not actually raised any objections at all in all of your exchanges or at any point during the carrying out of the work.

It is very important not to be derailed from your deadline for starting action because this is what he is trying to do .

When does your deadline expire?

Kwabena · April 23, 2022

Ah ok...I was just putting the drawing up as it's pretty hard to explain the exact situation to you and I thought it may make it easier to just see how little involvement I have actually had in the drains.

Deadline expires next Friday and I will start proceedings straight away...I'm just about to register with MCOL

Do you think it would hurt if I said that I take responsibily for any work I was paid directly to do, and not work that others were paid to do? It seems this is a sticking point for him to move forward with the conversation

Kwabena · April 23, 2022

Just to clarify the about me saying I'm happy to take responsilibity for work I have been paid for. During the job, there were other trades coming and going doing various aspects of the build. Carpenters, plumbers, a bricklayer, roofers and electricians.

These were all paid directly by the client and not through me so I feel that that I'm liable only for the work we did ourselves and were paid to do...nothing else. Would you agree?

Kwabena · April 23, 2022

Also, sorry...one other thing! I'm registering now and it costs £205 for my claim..is this added to my claim?

BankFodder · April 23, 2022

Who commissioned the work which was done by others?

BankFodder · April 23, 2022

Yes, if you win then you will recover your court costs.

Don't forget the in addition to the crane fee, there will be a hearing fee if it goes that far .

If you win then you will recover that as well

Kwabena · April 23, 2022

They were all needed for various aspects of the job which are outside our expertise..I would probably say he commisioned them but maybe I'm biased.

It was agreed before the job that I would get my usual subbies to give him quotes for their bits and he was welcome to get other quotes and use whoever he wanted. He dealt directly with the roofer I use from day one and I wasn't involved in those discussions. He used his own electrician and plumber

I recommended a bricklayer who turned up on dayrate and was paid directly by the client

I recommended a carpenter to him who has been working on dayrate and in email contact with him about ongoing works I'm not invloved with (fitting kitchen etc)

BankFodder · April 23, 2022

You are responsible for any work which you contracted to do and for which he paid money to you. If you subcontracted some of the work and you were paid by the client and you then had to pay the subcontractors, you would then be liable for the work of the subcontractors.

If you make recommendations as to other workers and he decided to take them on any dealt with them directly and pay them directly then his contract is directly with them and nothing to do with you.

I suppose that if one of the workers was so poor in the quality of what they did, he might have a case for coming to you for your negligent recommendation.

You certainly should have registered with the money claim website by now and you should be drafting your claim.

Of course post up the draft of your claim here before you send it off.

It doesn't need to be very long or detailed. Keep it scant

Kwabena · April 23, 2022

This is my particulars of claim...what do you think?

I am claiming three days labour for two
people plus materials that I supplied to **** **** in the process of working on his
extension. We had an agreement in place
whereby I would charge weekly for labour, and
any materials I supplied would be charged at
cost to me plus 10%.
This agreement had been honoured through my
(roughly) three months on the job but payment
is being withheld on my final invoice

BankFodder · April 23, 2022

No I don't think it works very well.

Anyway you shouldn't be distracted by this you should have your response to his most recent letter out of the door by now. It's taking far too long.. You should be batting them back almost instantly.

It is that approach which is producing any kind of results. It's now been over 24 are since he last wrote to you I think and you haven't responded. This means that he believes that he has given you cause for pause. You are letting him take control again

Kwabena · April 23, 2022

Ok, looking at his email there doesn't seem to be a great deal I can respond to...Ill post here again