Being sued by Cowboy Builders - please help *** Claim Struck Out ***

[wonky100]

Sorry, meant to say the solicitors are MSB Solicitors, 13th Floor, Silkhouse Court, Tithebarn Street, Liverpool, L2 2LZ which is the trading name of MSB Law LLP. Reg no OC355225. Apparently, they won several awards in 2009 but when you check out Companies House, they were only set up in 2010! There was a previous MSB Solicitors so I'm guessing the awards relate to the, but that's not what their letterhead or website says.

[gezwee]

Copy to the ICO [re:e-mail]....... me thinks a possible breach of the DPA

 

To be perfectly honest, you just need to get everything in front of the dj [without going off on one ], concise, structured statement of events to date...... let the court decide and for goodness sake get those costs in.

 

Don't get caught out by timing, 16.00hrs on the dot the dj will be wanting to get off. Your hearings late in the day, make sure you focus on the central points of the case. Don't waste time on superfluous drivel the other side may try to bring in to proceedings

 

Gez

[wonky100]

Thanks for the link to the other thread and thanks to Citizen B for having done all the hard work! Will get onto this tomorrow.

[wonky100]

Sorry Gez but what's a ICO? And what is the DPA?

[wonky100]

Bit quick off the mark. I've googled ICO and DPA. I'm sure I've contacted the ICO previously and not had any joy.

[gezwee]

I.C.O..... http://www.ico.gov.uk/

DPA..... http://www.legislation.gov.uk/ukpga/1998/29/contents

 

Maybe one for your friends Mr & Mrs XXXXXXXXXXX to save for later

 

Gez

[gezwee]

Bit quick off the mark. I've googled ICO and DPA. I'm sure I've contacted the ICO previously and not had any joy.

 

Painfully slow but they do act on breaches of the DPA

 

Gez

[wonky100]

What does "The Defendant is not impetrations" mean?

 

Thanks

[gezwee]

In what context? Can you type the full text of the sentence/paragraph

[wonky100]

"Application 1 Security for costs

 

15) The Defendant is not impetrations. The Claimant is solvent and continues to trade. The Defendant's have already received £7,800 from my bank via the credit card company. The exhibits show in fact that the Claimant is solvent, has money in the account and can easily cover any adverse costs awarded. There is no reason to order security for costs."

 

Is this enough info?

 

Why object to security for costs if he is solvent? We're not asking that he pays us, we're asking that he lodges the money with the Court. The exhibits does not show that he's solvent. It shows that he has an active company.

 

Thanks again

[gezwee]

Its a veeeeeeeeeeeery old fashioned way of saying you haven't fully pleaded the position why there should be security

 

As it was a chargeback it was never in his account anyway........ , considering the claimants details are not those of the named payee account it's arguable it could never have been

 

Gez

[gezwee]

Good luck for tomorrow Wonky

 

Remember to stay calm and focus on the issues at the crux of the case, sure you'll do just fine.

 

Gez

[wonky100]

Thanks for the support.

 

Might need matchsticks to keep our eyes open!

 

I think I need a note pad and pen on my bed side cabinet tonight! If they have an insurance policy in place which they are inferring, then the Insurers would have appointed Ikon. I don't think so!

[Undercover-Elsa]

Good luck for today Wonky, fingers crossed for you!

 

Elsa xx

[gezwee]

Morning Wonky

 

Last one before I slope off to work.......

 

Try to set the tone when the hearing starts, take your copy of the contract with you.

 

The dj needs to understand that you have absolutely no issues with counterclaim for damages if the court recognises the claimant co. If it recognises the claimant, you need to know how it intends to place both parties on a level footing and secure your costs in a successful counter.

 

You also need to know why [based on the contracting parties] Mr Wonky has been filed against.

 

You're effectively back to day 1 of the case, but now have the opportunity to ask the court to decide if the case should progress. I don't believe any of the questions regarding claimants cause would show it in a good light if presented correctly.

 

Last nights w/s and disclosures....... really shouldn't be admissable, remind the dj that the represented claimant has only just served and requested no relief from sanctions.

 

Best of luck for this afternoon

 

Gez

[wonky100]

Morning (is it still morning, I've been up hours!)

 

Feeling remarkably calm this morning, lets hope I stay this way.

 

Thank you Gez for all your support so far. Lets hope I don't have to bug you anymore, although I can't really see this being the end today, but we'll get there.

 

Thanks Elsa for pointing me in the right direction at the start and helping me to get the help that we so desparately needed.

 

Update as soon as I'm home and have dropped the kids off at their various activities!

[Andyorch]

Keep cool Wonky don't be goaded, and of course the best of luck.

 

Andy

[wonky100]

Thanks Andy

 

Maybe when I have more time tonight I'll scan and upload his witness statement. It's unbelievable. I'm not too sure whether I'm bothered if it is allowed.

 

Doing more digging this morning. Am currently awaiting a call back from their Insurers to see if they are dealing with the matter.

[wonky100]

It is not unusual as litigation progresses for the damages heads to change (as for example the issues narrow) from the initial particulars of claim.

 

 

 

Meant to clarify, the claimant has now actually corrected the details re the amount we paid and the amount received as a charge back from the credit card co from that which he originally stated in his particulars of claim. I'm guessing he was originally just hoping for a default judgement and figured he may as well get as much as he could. Wrong!

[wonky100]

Ding Dong, round 3!

 

Disappointing, but as expected, claim wasn't struck out due to non compliance with a number of court directions. Instead the claimant have been given additional time to comply and if they don't comply we can apply to the Courts, again, and then it will be struck out. So now we won't be going to court until September! Well I guess that's going to cause the claimant some inconvenience as there must have been a reason for him not to want to be a director in the first instance and now he'll have to continue to be so for a further 6 months.

 

We're not allowed to use the independent structural engineers report which we obtained last year, so annoyed about this. Also, not allowed to use the roofing report who the claimant appointed as this wasn't in CPR format. Now have to agree to a SJE and it has to be someone who will also agree a value for the structure, if there is one. Well the condition of the conservatory gets worse daily, so not too concerned about this. Foundations are shocking, no damp proof course, there's mould everywhere and that's not to mention the leaks! Only issue now is agreeing to a SJE. Judge did say that we'll all have to reconsider our position once SJE report received as it may be that we want to counter claim against claimant or it may be that we decided to pay something towards it. Time will tell.

 

Claimant has to provide a copy of the contract and evidence of the chargeback. If he hasn't got it I have to apply for something under section 18 of CPR, something to do with verbal contracts!!!! So will wait for new directions hopefully for clarity. I got the impression that the Judge really wasn't too bothered about a contract. I got the impression that at the end of the day we have a conservatory regardless of who built it and it's just a question of getting it put right. I did point out that contract allows for it to be removed should it not be paid for and that we'd asked them to do this and they hadn't and that they had subsequent demanded it be removed but then changed their mind wasting us a days holiday.

 

Security for costs also not awarded as claimant is active and has a Director and we have a structure for which we haven't paid anything for, even if it does need knocking down. Solicitor was adamant that the company wasn't able to trade without a Director. I pointed out that he had been trading without a director and this was evidenced by Companies House and that he'd only reappointed himself on 2 March. Also pointed out that the claimant company had been first gazetted twice but their solicitor played this down saying this was only because they had filed paperwork late. Judge pointed out that the claimant co appeared to be sailing close to the wind. However, the Judge did aware costs of £410 to be paid within 2 weeks by claimant for this afternoon. If not paid we have to apply to the Courts for the matter to be struck out and it will be struck out.

 

A copy of the claimant's current bank balance was provided and the Judge didn't consider this to be evidence that the claimant co was solvent as he didn't think there was very much in it and they don't have an overdraft facility. I won't say how much but our costs will take a chunk of it and goodness knows how they intend to pay their new solicitors with the funds that are in the bank. They'll have to get some business in pdq.

 

Judge questionned whether the claimant's solicitor had been appointed by the claimant's legal expenses insurers, since they provided what they purport to be a copy of the policy. Solicitor advised that they hadn't been appointed by the Insurers but didn't think this would be a problem. At least I managed to get the point across that the "policy" provided didn't actually show an Assured name or period of insurance and that there was a condition in the policy that stated there was a 180 day time limit which had now been exceeded, so Insurers could exclude cover (which I guess they will - times are tough!).

 

One thing the DJ did say is that since we've already provided witness statements we're allowed to respond to any witness statement that they provided.

 

PSU representative who came with us said it all went very well and we should be really pleased and that the Judge had put some pretty tough sanctions in place (I just feel like it could have gone better and that the claimant co have got away with murder) and that the claimant's solicitor was put in his place on a number of occasions. I think I must have completely missed this since I didn't have very much sleep last night.

 

We won't have to complete a schedule of damages at all, the Judge today is getting rid of this from the directions, but we need to keep track of any further costs (plus our original costs) and there's nothing else for us to do now, other than agree SJE and ask any questions of him if we have any, until pre trial checklists (other than make sure claimant co complies with new directions!)

 

At your stations for the next batch of questions to follow!

 

Thanks again everyone

[gezwee]

Hi Wonky

 

All in all a good day then....pick the positives out of this;

 

1. He's now under notice to follow procedure.

2. Costs awarded in your favour

3. SJE to be nominated ....... assume at claimants cost until final hearing?

 

Aaaaaaaaand, he's got no cash in the bank...... bit of leverage if ever there was.

 

I get the impression from reading your brief synopsis above that the dj will apply sanctions quite harshly if he doesn't get his house in order.

 

Did his sol give any indication of being instructed to settle this?

 

Gez

[wonky100]

Hi Gez

 

Yes, the DJ did give the impression that he will come down on them quite harshly.

 

I'm hoping that the PSU wouldn't have said it had gone well if it hadn't and therefore it must have done.

 

Didn't speak to solicitor at all. The ushers pointed out the solicitor when we arrived and I turned round and said afternoon and he didn't respond. When the matter was over, he collected his stuff and disappeared pronto.

 

The hearing lasted 1hr 45 mins and not 45 mins! They're costs are going up!

 

What I should have asked is whether they can claim interest for all this period since it is them who have delayed matters?

 

Had a thought though, wonder if the solicitor was hoping that he could claim against their insurance policy??? He'll be gutted if he hadn't got to the 180 day time limitation! He may have also had a minor panic attack when he saw the amount of paper work we had!

 

Going to go and destress now with a glass of wine and an early night!

 

Wonky

[gezwee]

Lol, think you earned the rest of the night off

 

Wait on the orders now, sometimes they don't end up drafted quite how you remember them quoted at the hearing. You never know he may come to his senses in the meantime and decide to settle this. Oh and make a note in your diary of when his cheques due by

 

Gez

[unclebulgaria67]

I can't see them being able to claim on a legal expenses policy. Normally you have to obtain agreement for costs, before you commence any legal proceedings. Why would any Insurers want to get involved after the event on a standard legal expenses policy. There are specific 'after the event' legal expenses policies, but I don't think this is what was being talked of.

[wonky100]

Hi Uncle Bulgaria

 

I agree. I can't see their insurers coughing up. Firstly the policy didn't shown an Assured name or period of insurance, so can't see this being a valid policy. I think it was used to try and avoid the security for costs. I don't think it was necessary as the reason for not granting the security for costs was that we'd already had our money back and the DJ didn't think it would be fair to ask the builder to "lose" another amount of money even if only until after trial in September, providing they win. Also, as you say, agreement has to be obtained prior to any legal proceedings. Any costs incurred prior to agreement would definately not be covered. And, I can't see insurers appointed a one of solicitor. I would have thought they would have used one of the national cos. Plus there's the 180 day time limitation which has been exceeded plus there's the fact that the probability of success has to outweight the probability of failure. I'm not sure that they can demonstrate this.

 

But, just when everyone thought I'd disappeared for a few weeks........

 

As mentioned, the solicitor told a number of "mis-truths"!

 

He said he didn't have the file from the previous representative yet he happened to have the letter re yesterday's hearing and the original court directions, which were both sent to the previous guys. He also said he didn't have a copy of the contract but he happened to know that the contract had the claimant's registration number on the bottom of it. The more I think about this the more incensed I become! How can a solicitor lie about these things? I know everyone is entitled to representation but do we not have any morales left anymore? Is this acceptable behaviour of a solicitor? How can I make my point with the Court???

 

Also, he doubted (he never actually denied) that the company would ever have been without a Director as it was illegal to trade without a director and the company continues to trade. I have evidence that the company didn't have a Director from November until 2 March which I had provided. What can I do about this? I know the company is now back in good order, on paper in any case, but it still riles!

 

Another question. The costs that he has to pay by 4pm on 3 April, will these have to be cleared by then or will I only have to receive by then? Should I insist that proof of posting is received as I don't think this will be sent to me on time yet I think it will be dated on time (the envelope could prove when it was posted though if the franking is clear enough).

 

Finally, can anyone point us in the right direction for a surveyor? Everyone I've spoken today can't do the work. I've been advised by one guy that the man for the job is the guy who we originally appointed but the Court won't allow him back! I need someone to inspect the structure including foundations and electrics and provide a value. I don't want to accept anyone in the Liverpool area as this is where the builder and solicitor is from and I don't trust them as far as I can throw them!

 

Thanks again