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

[Ganymede]

Hi Wonky

 

Did they respond by e-mail or was that over the phone? If it's in writing and a direct response to your request for the additional disclosure I'd hold them to it.

 

Tbh, it would make sense to copy the docs into a bundle whilst you have time on your hands...... if this does progress to a hearing its in your interest to have everything in order anyway.

 

If they want to inspect any of the docs they only have to ask, if they don't it's not your responsibility to serve.

 

Oh and, just sending you a PM on another matter as well

 

Gez

 

 

31.15

Where a party has a right to inspect a document –

(a) that party must give the party who disclosed the document written notice of his wish to inspect it;

 

(b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and

 

© that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request.

 

 

 

Are you sure the Claimant needs to specifically ask to see the docs in the Defendant's disclosure list?

 

The Court Order says disclosure by 20th so I would personally send all docs regardless of any request from the Claimant. The Defendant can't be criticised for having not served then.

[gezwee]

Morning Gany

 

Order was for disclosure pursuant to 31.21, no order for service [inspection by 20th]......... 31.15 should apply unless otherwise stated.

 

Having said that, the claimant does appear to be a little bloody minded in their approach to this so it would do no harm to serve given the limited cost involved.

 

Anyway....... back to the most effective application to draw all issues to the dj's attention - any suggestions beyond disclosing the docs core to their case?

 

Gez

[ScarletPimpernel]

The Companies Act 2006 requires a Limited Company to show, on all its stationery, certain details:

 

Registered name

Registered number

Place of Registration (i.e. England)

Registered Office address (this can't be a PO Box no.)

 

Where a company is 'trading as', it must still show the above details, e.g. Phoenix Ltd., t/a Cowboy Builders

 

If a business is VAT registered, its VAT number must be shown.

[gezwee]

Evening SP

 

Yep, we've come to the same conclusion re; companies act........ local TS have agreed same.

 

To summarise where we are at the mo with this;

 

The main issue now is to bring an end to the case in the most efficient way without encumbering Wonky with further costs........ which, I don't believe she'll have a snowballs chance in hell of recovering.

 

Case for counter is very strong, however....... I have my concerns that the claimant won't be about when it comes to the matter of costs/damages.

 

I 'think', although Wonky would be able to confirm, there are now something in the region of 6 company names using 2 company registration numbers and 3 addresses all fronted by the same individual.

 

The claimant, as far as I can tell is associated to 'contract' by directorship only. The claim has been issued by the Ltd co [not the director, although in probability this was to avoid consequence of a counter and/or costs]. The named party has [in the process of litigation] changed trading name twice and is currently without Director.

 

Both Mr & Mrs Wonky have been served.

 

Original contract is a mix of address, name and reg number [not clear on VAT number]....... none of which reconcile with the other. Mrs Wonky was the only party to contract [whether void or not]

 

Claimants counsel is an ILEX rep via IKON, no current right of audience so it appears to be an appointment to cover the donkeywork only.

 

My thoughts are to progress with an application for disclosure of all docs core to the case [per Wonkys 31.14], served as an unless. It would have to be done sooner rather than later as disclosure lists have now been exchanged.

 

Not sure if this could be combined with application for security for costs? The application itself looks straightforward enough, it's the burden of proof and how much in the way of supporting evidence would be required to push it through....... oh, and of course, whether it could be combined with disclosure appy?

 

Gez

[ScarletPimpernel]

My thoughts are to progress with an application for disclosure of all docs core to the case [per Wonkys 31.14], served as an unless. It would have to be done sooner rather than later as disclosure lists have now been exchanged.

 

 

This sounds very sensible. Once the docs are disclosed it should be quite easy to demonstrate to the Judge that the Claimant isn't the paragon of virtue he makes himself out to be.

 

I have never dealt with security of costs, so can't really comment on that aspect. However, it's certainly worthy of serious consideration.

[wonky100]

Morning all

 

Many thanks for all your posts.

 

I 'think', although Wonky would be able to confirm, there are now something in the region of 6 company names using 2 company registration numbers and 3 addresses all fronted by the same individual.

 

I forget how many companies this man has had however:

 

Conservatory 1 Ltd, the claimant company, has only traded as Conservatory 1 Ltd, Quality Conservatories Ltd and latterly Conservatory1 Ltd - convenient how the name now only differs by a "space" from the company which originally served the papers. This company has no Directors.

 

Lakeland Conservatories UK Ltd, who we thought our contract was with (name on contract is Lakeland but registration number belongs to Conservatory1 Ltd, but we didn't check this out at the time of signing on the day in our home!), has only ever traded as Lakeland Conservatories UK Ltd. This company has no Directors.

 

There have been numerous companies prior to these 2 which this man has set up and closed down however, since these 2 he has set up:

 

Quality Conservatories Ltd (note Conservatory1 Ltd have also traded as this) however, this company started out as Conservatory 2 Ltd, then Bespoke Conservatories, then Spectusconservatories Ltd, then Bespoke Conservatorie Ltd and now finally Quality Conservatories Ltd. This company no longer has any Directors.

 

Spectus Conservatories Ltd (note Quality Conservatories have also traded as Spectus Conservatories Ltd but without the space!). I believe the Director of this company to be Stephen Sartorius' daughter.

 

The address switch between a number of addresses.

 

The Companies Act 2006 requires a Limited Company to show, on all its stationery, certain details:

 

Registered name

Registered number

Place of Registration (i.e. England)

Registered Office address (this can't be a PO Box no.)

 

Where a company is 'trading as', it must still show the above details, e.g. Phoenix Ltd., t/a Cowboy Builders

 

The contract simply showed "Lakeland" no trading names. The address on the contract was Lakeland Conservatories UK Ltd's registered address, at the time of signing the contract although this is now the registered address of Conservatory 1 Ltd, the claimant company. It doesn't show England in the address. The registration number belongs to Conservatory1 Ltd, the company company.

 

There was no VAT number on the contract but I'm guessing they should have been VAT registered. I'm not sure what the threshold is but am guessing it's between £75k and £100k. Even at £10k per conservatory this is only 10 conservatories a year.

 

The ex Director signed the claim as Director. He has now signed the disclosure list as an employee!

 

Both our names are on the contract, but only I signed it.

 

ILEX have this morning confirmed in writing that the legal rep nor the owner of the company hold a Certificate in Civil Proceedings.

Ikon confirmed that we could have the documentation by email in response to my email to them asking for the documents in their disclosure list and the remaining documents as per my CPR request. They have until Friday to disclose. Can't wait to see the photos! Also, I'm wondering how an email from 16 November 2011 can have any relevance to a relationship which broke down months before? Anyhow time will tell.

Ikon advised by email that they had appointed the SJE however, I emailed back and advised that the SJE hadn't received their letter (supposedly sent 03/01/12) so put a copy in the post and ring them to expedite. Well Mr Wonky (LOL!!!!) has received a voice mail today from the SJE advising that he's received a letter from Ikon at the weekend. He says that he has been given instructions and that he must have the report back by 31 January. The SJE has advised that he cannot do this by 31 January - I'm sure he must have other work on and hasn't sat around waiting for Ikon instructions. My hubby has rang the SJE but he just keeps getting his answer phone, presumably he's busy, so will keep trying. We want to establish whether he got a copy of Ikon's letter of 03 January 2012 (although they could always fabricate one), what their instructions are, does his letter show the 3 logos which they're not permitted to use (just to demonstrate their continuing misrepresentation and to let the relevant companies have copies) and when can he fit us in?

What would be the impact of not getting the report by 31 January?

The Courts Directions state "The Defendant shall raise any questions of said expert in writing by 4.00 pm on 10 February 2012 whch shall be responded to by 4.00 pm on 24 February 2012." Couldn't we and Ikon agree to amend these dates by mutual consent?

Ikon have not included the SJE in their disclosure list, so I'm guessing it was never their intention to appoint him and they've just been backed into a corner which they're trying to get out of.

All correspondence on our disclosure list has now been scanned and I have forwarded some to Ikon by email (the stuff I've sent them is correpondence that they would have had anyhow or at least Lakeland would have had). The CCTV images are on disc and are being posted today (gutted as my husband found more than I disclosed, so can't use this!). All correspondence will have been emailed to them by Thursday pm, so we won't fall foul of non disclosure.

Gezwee, sending you a PM!!!

Thanks again everyone.

[gezwee]

Hi Wonky

 

I'd be inclined to get that disclosure application in sooner rather than later.

 

You're still missing several docs which they pleaded within their particulars...... without them and putting them to proof you leave yourself open to the dj questioning the reason for delay.

 

Wouldn't rely on Mr Kalyan supplying anything not already within dislosure list.

 

N244 is pretty straightforward, I think all the info you need is already on here, just needs reworking to suit their current disclosure.... and you need to be adding a line to request an extension to current orders until your application is heard [CPR3.1(2)].

 

Incomplete copy contract is not really reliable as a true copy....... if that's all they've supplied in the past and all you think they're likely to produce next week you need to be requesting service of true copy and inspection of the original [within application]

 

Gez

[wonky100]

Thanks again Gez

 

I will apply to the Courts for disclosure but after Friday, sorry but the Courts directions say they have to disclose by Friday and the Courts have verbally told me to wait and see if they comply.

 

Have however, had an email from Ikon today which states:

 

 

Having considered this case further and the fact that you are not legally represented, furthermore in view of the escalating costs and no doubt you will be aware that costs are included as part of the claim and therefore we would like to suggest at this stage, for both parties to enter into mediation with a view to settling this matter in an amicable and a satisfactorily manner for both parties.

 

 

Any thoughts? We know what ours are!

[wonky100]

Just another thought, the claimant can't provide the original contract as I have the original. The copy they have provided in the past is illegible.

[gezwee]

Wonky

 

That's not quite correct......

 

Disclosure list was last Friday. that was the disclosure part of the order...... inspection for the 20th is reliant upon the disclosure list, they have no further time to list [disclose]anything without permission of the court.

 

Look at it from another perspective.......... anything they failed to disclose within their list cannot now be relied upon without the courts permission.

 

The courts term for disclosure is a merely a means to assert that you have something in your possession, it's not quite the same as a layperson would think [a physical disclosure of something tangible] until inspection.

 

My thoughts are that they've been reading this thread, the major concern for them will be one of directors personal liability to costs. He's only got to google himself to find this thread

 

Test them a little........ try a 'without prejudice save as to costs' e-mail inviting them to discontinue and bear your costs to date.

 

Gez

[gezwee]

Just another thought, the claimant can't provide the original contract as I have the original. The copy they have provided in the past is illegible.

 

I know Thats the purpose of application for true copy

 

Gez

[Ganymede]

Wonky

 

That's not quite correct......

 

Disclosure list was last Friday. that was the disclosure part of the order...... inspection for the 20th is reliant upon the disclosure list, they have no further time to list [disclose]anything without permission of the court.

 

Look at it from another perspective.......... anything they failed to disclose within their list cannot now be relied upon without the courts permission.

 

The courts term for disclosure is a merely a means to assert that you have something in your possession, it's not quite the same as a layperson would think [a physical disclosure of something tangible] until inspection.

 

My thoughts are that they've been reading this thread, the major concern for them will be one of directors personal liability to costs. He's only got to google himself to find this thread

 

Test them a little........ try a 'without prejudice save as to costs' e-mail inviting them to discontinue and bear your costs to date.

 

Gez

 

 

 

Exactly.

 

Anything not in their disclosure list cannot be relied on now without the Court's permission. However, you can't force them to actually supply anything in their list until after the 20th.

 

Anything not in their list is fair game although I'd wait for 21st as its unlikely they'll disclose most of what's in the list then you can apply for disclosure of everything at once!

[wonky100]

Thanks again

 

What do you mean by "try a without prejudice save as to costs"? I know what without prejudice means, it's when you talk about save as to costs that confuses me. We'd already offered them £1,500 without prejudice via a solicitor back in July. Just to cover the cost of the roof and windows. Doors are of no use and we could damage the windows and roof when dismantling everything.

 

Also, what can we do about the SJE? He can't attend until mid Feb. Can us and Ikon agree to extend the dates? Courts directions state that we have to raise any questions by 10 Feb and this has to be responded to by 24 Feb. Ikon haven't included the SJE in their disclosure list. Would really like to know how to proceed with this? Trust me no surveyor is going to like what they see.

[Ganymede]

The SJE can't be in the disclosure list as the report doesn't exist yet!

[gezwee]

'save as to costs'..... doesn't bear the same weight of privilege as 'without prejudice' correspondence, it can be ordered for disclosure when costs are decided [much the same as a part 36].

 

I meant they pay you You agree to allow them to discontinue on the basis that they meet your costs to date - its a starting point for negotiation and you can always draw up a consent if they agree.

 

If the claimants [or defendants] conduct is questionable when costs are assessed any material offers to settle can be considered by the dj.

 

I would think it'll require an application to the court to extend current orders to bring the SJE into play [whether both parties agree or not, you can't move from the current directions without permission], as Gany says, the SJE is effectively a non-starter now.....

 

Gez

[Ganymede]

If the Claimant makes an application to amend the directions so that a SJE can be appointed, and the Defendant consents to it, the the Court would allow it.

 

Wonky, did you include the contract in your Disclosure List?

[wonky100]

Yes, I did include the contract in my disclosure list.

 

Can you really see them paying us???!!!! They've already previously refused a WP offer and now they've incurred court costs.

 

Head is now banging. Don't know what to do! Obviously would like this mess to go away but a part of me would like to stick 2 fingers up at them and say see you in Court! But then that's more months of stressing.

[gezwee]

Yes, I did include the contract in my disclosure list.

 

Not a contract with the named party to claim.......you require inspection of the contract which affords the claimant the right to pursue you for damages

Can you really see them paying us???!!!! They've already previously refused a WP offer and now they've incurred court costs.

 

Nothing ventured, nothing gained...... try them

Head is now banging. Don't know what to do! Obviously would like this mess to go away but a part of me would like to stick 2 fingers up at them and say see you in Court! But then that's more months of stressing.

 

Have a cuppa and draft up an e-mail inviting them to discontinue

 

Gez

[wonky100]

Oh well, our offer wasn't accepted!

 

We emailed Ikon pointing out the many faults of their claim not in the least them having shown no locus standi, the claimant company having no Director and therefore who was giving instructions in the matter (which they haven't advised) and the fact that they themselves do not have authority to issue proceedings in the matter. We did however invite Ikon to view the structure so that they could realise the true extent of the remedial work which is required but they haven't taken us up on this offer (nor in fact commented on it).

 

What they would like to do is appoint an independent contractor to assess and advise (been there, got the t-shirt) and then they will remedy (not bloody likely) and then we pay up. Perhaps if they'd done this 12 months ago we'd been agreeable, but there's absolutely no way they're coming back. Oh and they'll deduct our solicitors cost. Jolly decent of them.

 

We can instruct an independent contractor do to the work but they'll only stop proceedings once the work has been completed and we provide a receipt. OK and what if we get the work done and they don't stop proceedings? I guess everything would have to be in writing, but just don't trust them and they could issue proceedings any way and have us jumping through hoops, again. And what about the fact that we've already got a price that is over and above the original contract price? Are they going to stump up the difference and pay our costs?

 

So was going to advise them that the SJE could be appointed and we would take it from there or in the alternative as per the contract (and as previously demanded by them) the structure could be removed.

 

I was also going to seek clarification regarding the contract value, since their particulars of claim state it is higher than it is.

 

We still haven't been provided with the documentation listed in their incomplete disclosure list. I was going to remind them that this is required.

 

I know it's best to negotiate but they've got a bloody cheek since the contract isn't even with them!

 

Any thoughts or comments would again be appreciate.

[gezwee]

Oh well, our offer wasn't accepted!

 

They've still got time to change their mind

We emailed Ikon pointing out the many faults of their claim not in the least them having shown no locus standi, the claimant company having no Director and therefore who was giving instructions in the matter (which they haven't advised) and the fact that they themselves do not have authority to issue proceedings in the matter. We did however invite Ikon to view the structure so that they could realise the true extent of the remedial work which is required but they haven't taken us up on this offer (nor in fact commented on it).

 

Don't get drawn into discussing the verasity of the claim, you can't conduct a hearing by e-mail

What they would like to do is appoint an independent contractor to assess and advise (been there, got the t-shirt) and then they will remedy (not bloody likely) and then we pay up. Perhaps if they'd done this 12 months ago we'd been agreeable, but there's absolutely no way they're coming back. Oh and they'll deduct our solicitors cost. Jolly decent of them.

 

No comment, lol

We can instruct an independent contractor do to the work but they'll only stop proceedings once the work has been completed and we provide a receipt. OK and what if we get the work done and they don't stop proceedings? I guess everything would have to be in writing, but just don't trust them and they could issue proceedings any way and have us jumping through hoops, again. And what about the fact that we've already got a price that is over and above the original contract price? Are they going to stump up the difference and pay our costs?

 

Now, that would have been interesting...... had it not been for the works completion prior to discontinuing!! No possibility given the time.

However; if they were to offer this by way of Tomlin [discontinuing immediately on sealing of order], with your costs and works done within the schedule to be contra'd against the original build price.... that would be an option worth investigating. Regardless of the contract issue, if it puts you back to status quo financially it'd be worth consideration...... I think I'd be looking for a minimum of a couple of £k off any balance for the distress as well though.

 

So was going to advise them that the SJE could be appointed and we would take it from there or in the alternative as per the contract (and as previously demanded by them) the structure could be removed.

 

You can advise them that you will agree to SJE report to be submitted late for disclosure but they'll need to make the application for the extension

I was also going to seek clarification regarding the contract value, since their particulars of claim state it is higher than it is.

 

You'll get that when you inspect their copy of the contract...... hope for their sake its a true copy

We still haven't been provided with the documentation listed in their incomplete disclosure list. I was going to remind them that this is required.

 

Keep chasing them, they relied on it within particulars........ if they don't then it's back to disclosure application.

I know it's best to negotiate but they've got a bloody cheek since the contract isn't even with them!

 

Any thoughts or comments would again be appreciate.

 

Personally, I'd still be looking to have it struck out as soon as they fail to disclose ........... when you get around to making that application

 

Failing that [and depending how you set out the schedule]... Tomlin comes a close second with all works rectified by an independent of your choice.

 

Gez

[wonky100]

OK, so I'll go back with 4 options:

 

1. The SJE is appointed and the matter is considered further upon receipt of his report - they haven't told us that he can't attend soonest (we just know!)

2. They agree to pay costs over and above the initial contract value (less legal costs paid to date and a distress disbursement)

3. The structure is removed as per clause 28 of the contract which states that it is removed if not paid for

4. They accept our offer to discontinue subject to paying our legal costs to date

 

I told them in my email yesterday that if they continued then I would be making an application to the Courts for full disclosure and a further application re security of costs.

 

Does this seem ok?

[gezwee]

Looks fine to me....... all w/p of course........ and any settlement reached to be backed up by Tomlin

 

Gez

[wonky100]

Sorry, 1 quick question!

 

Do I need to send the documents in my disclosure list to the Court?

 

Thanks

[cymruambyth]

No, they need to be available for inspection and for production at court.

[wonky100]

Thank you Cymruambyth

 

Thank goodness for that. I had a mad panic this morning thinking I was going to have to start running round copying everything again!