Advice needed on claim withdrawal

[Vandosa]

Hi there,

 

Any advice much appreciated.

 

My wife went ahead and claimed against an architect for poor work. She really doesnt know what she is doing and claimed for 12k instead of keeping it within the small claims court (under 5k).

 

Our case will be hard to prove and she wants to withdraw her county court claim due the risk involved in losing.

 

Can you simply withdraw your court action using a 'notice of discontinuance'? And does it all depend on whether they have counter claimed or simply defending? I assume if they have counter claimed then to withdraw, we will incur their costs to this point?

 

Also, can you drop the amount back down to 5k to push back into the small claims court facility?

 

Thanks in advance for any help.

[the_shadow]

If you issue a notice of discontinuance you will indeed be liable for the other sides costs up to the point of discontinuance, it matters not whether they have simply defended or counter claimed she will still be liable for their costs.Obviously the further down the line this goes those costs will increase massively especially if it gets to the actual court appearances.

 

You could attempt to negotiate a settlement, both sides agree to discontinue claims but bear there own costs but I suspect the architect has used a legal firm and hence would be significantly out of pocket.

 

Do you have a legitimate claim? might be worth getting free legal advice on that point first? some solicitors run 30mins sessions for free.

 

S.

[the_shadow]

Oh and moving this to the legal section for more specialized advice.

[Vandosa]

Thanks shadow.

 

Would be good to see what people think about our case.

 

1) We signed flmsy contract with little or no details

2) Contract was made with loft company to initially provide architect services

3) Got loft company via FMB website, loft company said they were master builder winners

4) Loft company not master builder award winners, just minor award winner. Incorrect advertising.

5) They said they had an architect, it turns out the architect is really a structural engineer

6) Started April 2011. Thing went straight downhill after we paid deposit (£1500 of 3500 for drawings/regs)

7) Guy from loft company said they would proceed only with another $500...a 1 line email

8) Obv our alarms went off but the guy doing the drawings was very nice, if a little slow/weak on detail

9) Another week and another demand for $500

10)We spoke to the guy doing the drawings and he said he would support us the entire way through to planning acceptance

11) He was slow but he got an app together. We asked via email/phone to make sure what we were doing was acceptable to the council - he said no worries

12) He submitted the plans and we were happy.

13) Loft guy contacted and said if we want, pay last £1000 and they could do building regs early. As it was same guy we paid to get an early start.

14) Plans came back rejected. What was alarming were the comments from the planner. Way too many things missing. Sarcastic comments about placement of windows which where they were not possible. Missing too much information hardstanding, distance to boundaries, direction of e/w mixed up, and a lot more.

15) Structural engineer (architect) starts a full time job. Can only now talk to us 30 mins on car trip home.

16) I make a complete list of things he needs to address. He says yes on phone but only actions a couple

17) We ask him to submit another post refusal advice form with updated drawings (now July)

18) 8 weeks later we get response from council... sarcastic comments from them again that this app is not fit for submission. Missing way too much information.

19) Knowing the other guy from the lot company is a shark i have no real option but to persist with this friendly but useless guy. Again phone call in car and list everything that the planner talked about.

20) Weeks later September he sends us drawings for comments. They look awful even too me and no detail at all. I think he has given up.

21) We email and terminate with him directly.

22) We aks him if he has started the building regs..he says no, he wouldn't start them until planning is approved. He emails us the same so we have proof.

23) We tell loft guy we are terminating and can we get our building regs money back at least. We explain and send him all council planner comments.

24) He is a shark and just says building regs have been started and we cant have any money back. no surprise there.

25) My wife decided to go to petty claims and fight for building regs.

26) she does 30 minute free meeting with a solicitor who says she can claim for non delivery under goods/services, and claim for our rental (lost time) that we have to stay in while we wait.

27) She does something silly, she adds up the rental and fees and comes up with 12k.

28) She lodges laim online and we are now no longer in petty claims court.

29) We understand that our overall claim of non delivery/poor work will be hard to prove. I mean council planners are involved and they are notoriously difficult. They can simply say the council planners are fickle and that they might deliver over years. They will also say the things we failed planning on were our demands. Our only real specification was whether we would pass planning so keep it simple.

30) We now need to make a decision on whether to proceed or withdraw.

 

Their arguments (lies but how will the judge know)...

1) It is our demands that caused failed planning

2)They delivered buildings regs. After our termination, he quickly got hold of the engineer and said send them something, so weeks later (October) we got an email of building regs on a failed planning application on a design that is not possible.

3) He said we have no case to stand on because he said we gave him no chance to put right. I would have to agree with him there. As we knew he was a shark and the other guy was useless, we wanted to finish with him totally. His argument is he could source someone else for the work.

 

He has done some other dodgy things along the way but not worth mentining because i dont think they will impact a court decision.

 

Any thoughts from anyone?

[joesweetsllm]

Thanks shadow.

 

Would be good to see what people think about our case.

 

1) We signed flmsy contract with little or no details

2) Contract was made with loft company to initially provide architect services

3) Got loft company via FMB website, loft company said they were master builder winners

4) Loft company not master builder award winners, just minor award winner. Incorrect advertising.

5) They said they had an architect, it turns out the architect is really a structural engineer

6) Started April 2011. Thing went straight downhill after we paid deposit (£1500 of 3500 for drawings/regs)

7) Guy from loft company said they would proceed only with another $500...a 1 line email

8) Obv our alarms went off but the guy doing the drawings was very nice, if a little slow/weak on detail

9) Another week and another demand for $500

10)We spoke to the guy doing the drawings and he said he would support us the entire way through to planning acceptance

11) He was slow but he got an app together. We asked via email/phone to make sure what we were doing was acceptable to the council - he said no worries

12) He submitted the plans and we were happy.

13) Loft guy contacted and said if we want, pay last £1000 and they could do building regs early. As it was same guy we paid to get an early start.

14) Plans came back rejected. What was alarming were the comments from the planner. Way too many things missing. Sarcastic comments about placement of windows which where they were not possible. Missing too much information hardstanding, distance to boundaries, direction of e/w mixed up, and a lot more.

15) Structural engineer (architect) starts a full time job. Can only now talk to us 30 mins on car trip home.

16) I make a complete list of things he needs to address. He says yes on phone but only actions a couple

17) We ask him to submit another post refusal advice form with updated drawings (now July)

18) 8 weeks later we get response from council... sarcastic comments from them again that this app is not fit for submission. Missing way too much information.

19) Knowing the other guy from the lot company is a shark i have no real option but to persist with this friendly but useless guy. Again phone call in car and list everything that the planner talked about.

20) Weeks later September he sends us drawings for comments. They look awful even too me and no detail at all. I think he has given up.

21) We email and terminate with him directly.

22) We aks him if he has started the building regs..he says no, he wouldn't start them until planning is approved. He emails us the same so we have proof.

23) We tell loft guy we are terminating and can we get our building regs money back at least. We explain and send him all council planner comments.

24) He is a shark and just says building regs have been started and we cant have any money back. no surprise there.

25) My wife decided to go to petty claims and fight for building regs.

26) she does 30 minute free meeting with a solicitor who says she can claim for non delivery under goods/services, and claim for our rental (lost time) that we have to stay in while we wait.

27) She does something silly, she adds up the rental and fees and comes up with 12k.

28) She lodges laim online and we are now no longer in petty claims court.

29) We understand that our overall claim of non delivery/poor work will be hard to prove. I mean council planners are involved and they are notoriously difficult. They can simply say the council planners are fickle and that they might deliver over years. They will also say the things we failed planning on were our demands. Our only real specification was whether we would pass planning so keep it simple.

30) We now need to make a decision on whether to proceed or withdraw.

 

Their arguments (lies but how will the judge know)...

1) It is our demands that caused failed planning

2)They delivered buildings regs. After our termination, he quickly got hold of the engineer and said send them something, so weeks later (October) we got an email of building regs on a failed planning application on a design that is not possible.

3) He said we have no case to stand on because he said we gave him no chance to put right. I would have to agree with him there. As we knew he was a shark and the other guy was useless, we wanted to finish with him totally. His argument is he could source someone else for the work.

 

He has done some other dodgy things along the way but not worth mentining because i dont think they will impact a court decision.

 

Any thoughts from anyone

 

 

 

HOW FAR HAVE YOU GOT ?

ARE YOU AT PRE TRIAL REVIEW OR DIRECTIONS YET ?

HAS A DEFENCE BEEN ENTERED ?

DO THEY HAVE A SOLICITOR AS THIS CAN EFFECT COSTS ?

ONE MIGHT ASSUME THAT IF THEY DO NOT HAVE A SOLICITOR THEIR COSTS ARE NOT SUBSTANTIAL AT ALL

SEEMS A BIT OF AN INVOLVED STORY SO I WONDER IF IT IS CLEAR ON YOUR CLAIM - WHAT YOU ARE CLAIMING FOR

AND HOW YOU HAVE WORKED OUT THE LOSS.

YOU CAN ALWAYS APPLY TO HAVE YOUR CLAIM AMENDED AND IT MAY WELL BE WITH A COST PENALTY - BUT NOT

A PENALTY THAT WOULD MAKE YOU WISH TO STOP THE CLAIM AND ALSO THE COURT MIGHT WELL ALLOCATE IT

TO THE SMALL CLAIMS TRACK - IF - THE SUBSTANCE OF YOUR CLAIM IS LESS THAN £5000.

BEST TO RUN DOWN TO A SOLICITOR NOW - AND GET THIS ISSUE CLEARED UP - BUT THE SOONER THE BETTER

BEFORE A PRE-TRIAL REVIEW - AND IN TIME TO NOTIFY THE OTHER SIDE NOT TO ENTER A DEFENCE AS YOU WILL

BE APPLYING TO THE COURT TO AMEND AND WILL NOT BE APPLYING FOR JUDGEMENT IN DEFAULT.

THAT IS MY GUESS.

THE PREVIOUS PERSON IS QUITE RIGHT ON DISCONTINUENCE - IF YOU APPLY WITH THE OTHER PARTY AGREEING

TO A CONSENT ORDER TO DISCONTINUE WITH EACH PARTY BEARING THEIR OWN COSTS - YOU ARE LIABLE FOR

THEIR COSTS.

[Vandosa]

Hi,

 

Thanks for responding.

 

My wife is sending the defendent a letter re: pulling out of the claim.

 

The guy is a shark and will love it. Really annoyed at my wife.

[joesweetsllm]

Hmmm best do it via Consent Order which states

 

 

 

That upon Plaintiff filing a Notice of Discontinuence, each party has agreed to bear its Own Costs.

 

 

In that way you avoid would certainly avoid a Bill of Costs although the shark may well leave you alone.

On the other hand a DDJ DJ might want to inquire why if he or she sees merit in the claim, why you are

withdrawing which would give you the opportunity to explain [ plus they may have seen claims against

the shark before or even made awards ]

 

Good luck anyway - no point in getting annoyed with the wifve - atleast she had a go.

[Gaston Grimsdyke]

Is there a counterclaim? If so discontinuing the claim won't kill that so the action will continue on the counterclaim anyway.