Being charged for unusable crooked sliding gate track/ broken contract

[disillusion'd]

Yes there is a limit, but I worked on this before I tried to file my defence on MCOL.

 

I did try a cut and paste without submitting, and it counted my whole paste as just one character! So maybe I can get away with it.

 

I think it is best if I use your wording and just put in the figure and the short write up as you wrote, I will do as you say and follow up with the document later.

 

Yes there is a limit, but I worked on this before trying the MCOL submission.

 

I did try a cut and paste and the whole document went in, so I might be able to send it that way . It does need some editing, so perhaps its best to go with the short version and follow up.

 

I see that i have pay a claim fee anyway - £185 for a claim under £5000, £410 for a claim between £5000 and £10000.

 

My concern is that if I make the figure too high, he will fight tooth and nail.

 

I think there's some benefit to being reasonable, and maybe keeping the claim below £5000. I can always show the judge that my costs have been greater than that.

 

What are your thoughts on that?

 

If I use the text you gave me in post #49 (modified) with just a total figure at the end and if I was able to post that online I would then not have to send in another counterclaim document, would I?

 

The MCOL website is down, I can't submit. MCOL helpdesk have told me I can send in my defence and counterclaim by email, so that gives me more space. I have to wait until tomorrow to pay before they will accept the email. I propose £4700 + their and my court costs £255 = total £4955.

 

This is the defense I propose to put in, using your text:

 

The claimant held out their expertise and advised that the existing track foundation was inadequate to meet the need and would need to be replaced.

 

On the basis of that advice, I removed the existing track foundation and commissioned the claimant to replace it with their own foundation, together with a metal track to carry the automated gate.

 

I have now received advice from my own expert that the original track foundation was in fact perfectly adequate.

 

Furthermore my expert has advised that the new foundation and embedded metal track by the claimant has been incorrectly laid and needs to be removed and replaced .

 

Additionally, the claimant commissioned their own independent report of the new metal track embedded in concrete foundation and that report also concludes that the claimant’s work is not fit for its purpose.

 

Although the claimant's expert has not been able to make any assessment of the suitability of the original track foundation, it is my case that the original track foundation was removed unnecessarily, incurring unnecessary expense and causing unnecessary delay.

 

As a result of the unnecessary work and the substandard work carried out by the claimant, I claim:

Cost of laying original track foundation; removal and consequent alterations to wall foundation; disposal of rubble/waste material; preparation of base for claimant installation (this work was included in claimants quote, but carried out by me under instruction from claimant); making good area surrounding claimant’s work; cost of removal and replacement of claimant’s substandard work; cost of defendant’s electrician undertaking electrical work not done by claimant as per contract/quote, and correcting works done by claimant £4700.00.

 

My Court costs and claimant Court costs £255.

 

Additionally, as a result of the unnecessary and substandard work carried out by the claimant I have been put to great inconvenience.

 

This the inconvenience –

 

I have been obliged to instruct four experts; take time off work to meet them;

take time off to meet the claimant’s expert;

spend 6 hours on the telephone;

17 hours dealing with correspondence;

10 hours arranging and meeting with builders, electricians and gate installers to assess technical issues with removal of substandard work;

delays to landscaping works;

delays to building schedule;

time and inconvenience in rescheduling prearranged and booked works on site;

time and inconvenience rescheduling materials deliveries;

costs, time and disruption involved in unnecessarily removing foundations under instruction from claimant;

costs in removing rubble created by unnecessary removal of foundation;

costs involved in alterations to foundations to property perimeter wall adjacent to removed track foundation;

time spent researching for alternative gate suppliers,

time spent on Court requirements.

 

I believe that the facts stated in these particulars of claim are true.

signed

 

Can I ask for advice on my submission?:

 

I have written the following a paragraph. to include in my counterclaim. Is there a benefit in including it, or do you advise against this? I think the claimants behaviour throughout has been pretty bad.

 

Due to the claimant's behaviour throughout; their failure to provide qualified personnel or to provide a service with reasonable skill and attention, resulting in work unfit for purpose; their failure to provide paperwork; their threats of court before presenting an invoice and final presentation of a backdated invoice in an email format which does not match other forwarded emails, we have lost confidence in the claimant.[/i

[BankFodder]

I don't think you need to include this in the online form.

 

You should include a version of what you have proposed in the hardcopy counterclaim which you will prepare in the next few days.

 

It needs also to be set out in a more formal and factual format.

 

I think it might be sensible to get your defence and counterclaim off today. I can imagine that the claimants are waiting and poised to apply for judgement at the very moment that the 28 days expires. You don't want to be pipped at the post

[disillusion'd]

I have been on the phone today to try to get some written backup from someone re the removal of the original concrete foundation, to be told by everyone that it is purely a personal choice and assessment, there are no written specifications for the levels or flatness of the concrete.

 

The claimant told me the level went up and down by up to 20mm along the length and therefore he wanted it removed. The suppliers of the track told me they had never heard of this being even asked about, one simply uses shims to level it. There are no written tolerances even from the manufacturers. I'm not sure how I will defend this in court. The costs to me of this were just over £1000 to lay, £2000 to remove. But I can't put technical paperwork forward. Do I go ahead and include it in my claim, because it will change the value of the claim I make?

[BankFodder]

I don't all together understand what is being said here, but it seems to me that the suppliers seem to be saying that the claimants have imposed requirements that they have never heard of and that shims could have been used instead of having to undo the whole work. Is this correct?

 

If that is so, then I don't really see how it changes your position because from what I understand from you, the claimant insisted on removing the foundation and replacing it when in fact he could have dealt with the levelling problem simply by using shims which presumably would have been much easier and much cheaper and he could have used the existing foundation. Have I misunderstood?

 

Also, you have since told us that the work done by the claimant has itself been judged to be unsatisfactory.

 

Whatever the situation here, I suggest that you put in the counterclaim broadly as we have suggested – but instead of having a firm figure, put "damages in the region of £XXX but still to be assessed by further expert examination". This is a bit unconventional but it will serve as a placeholder and as you are a litigant in person, they will cut you some slack

[disillusion'd]

You have got it absolutely correct.

 

My costs work out like this: £1024.00 to lay foundation

Labour + materials to remove, replace adjacent wall foundation and create a new , lower foundation for the claimant to use for track: £2450.00

Remove and replace claimant's work £2200.00

 

MCOL wants a claim to be a fixed figure. I could use email for the claim, so perhaps could claim unspecified amount for damages that way.

 

My husband suggests we keep the claim below £5000 or claimant will fight tooth and nail.

 

It's the claimant's word against mine that the track should/should not have come out. He will no doubt find someone to write something down to put in front of the court having seen my counterclaim.

 

I need to make a decision about this: my thoughts are 1. stay under £5000 on the MCOL system and just accept a few losses or

2. claim the full amount, damages etc. if you think I have a reasonable chance of getting the court to agree with my position re the removal.

 

I will go with whatever you advise, I have no experience at all.

[BankFodder]

Well the small claims limit on the MoneyClaim system is £10,000. I can't really imagine that it will make any big difference whether you are counterclaiming for £5000 or more. I can't really see that there is any magic barrier after which the claimant will resist any more enthusiastically.

 

In terms of MoneyClaim wanting a fixed figure – yes, that's right. Put in your top figure but then in your sentence referring to your counterclaim, state that this is subject to further assessment – as I have suggested. If you need to raise the amount of the claim then you may need to make an application to amend your counterclaim – but at least you have put down your marker and this will make it easier. Also, it will flag up to the claimant that there could be big trouble on its way and so it might suit him to sort it out more quickly.

 

Personally I don't see why you should accept any losses – but that's my style. At the end of the day, it's your case and either you take the winnings, or else you suffer the losses. You have to make your own judgement.

 

You have already said that their own expert has criticised their own work. If this is the case then frankly I think that this casts grave doubt not only over the work they did, but also the initial assessment they made of the existing foundation. Have you got report from the people who made the existing foundation?

 

If you have their own report which already criticises the work then frankly I don't see that they have much hope and really they should be trying to cut their losses and start carrying out a damage limitation exercise.

[disillusion'd]

Thank you BankFodder. I understand the thinking. This gives me much more confidence with my claim. I will file now.

 

You've been extremely patient with me, I know I've been all over the place with this.

[ericsbrother]

the building trade has its own ADR, beware of using it for mediation or adjudication.

[disillusion'd]

Thanks for the heads-up.

 

Is there an ADR you recommend I request?

 

Defence and Counterclaim were sent today by email. There is an acknowledgment of receipt on MCOL, and the claim has been transferred to my local court.

[BankFodder]

Okay. Now we need to start working on the full particulars of defence and counterclaim.

 

An ideal target forgetting those in the post would be next Wednesday with guaranteed delivery of Thursday morning.

 

Why are you considering ADR? Have a look at what we have to say about Mediation http://www.consumeractiongroup.co.uk/forum/showthread.php?440009-Guidance-Note-Mediation

[disillusion'd]

And here I was feeling relieved and thinking I might get a bit of a breather! haha.

 

Not sure what it is I have to do for the full particulars.

 

How is the Tomlin order introduced into the proceedings?

 

I read that mediation article. It's very helpful. I'll go through it again.

Re ADR: It's just that ericsbrother mentioned I should avoid the building trade ADR.

 

I wasn't really considering it other than expecting that it might be required of my by the court. Or that the court would take a dim view of me if I refused ADR if it was suggested.

 

Wouldn't it be good if the claimant is off on his Christmas hols and doesn't respond to my counterclaim! 14 days from now = 29 December. Maybe he gets another 5 days for service.

[BankFodder]

This will give you a head start. Or expand it or modify it and continued in the same vein.

 

Start listing out expenses at the appropriate place. Post up what you have done when you're finished

 

In the XXX County Court

claim number XXX

Between

 

XXX claimant

And

XXX defendant

Defence

1. The claim is denied

 

2. It is admitted that the defendant entered into a contract with the claimant on 18 April 2016 to fit an automatic gate system

 

3. The defendant had previously prepared a concrete foundation with a another contractor the cost of £XXX

 

4. The claimant told the defendant that he considered that the above foundation was inadequate for the installation of the gating system and required that it was removed and that a new foundation was installed.

 

5. The defendant accepted the claimant’s advice and instructed the claimant to carry out this work

 

6. The agreed contractual price for the removal of the existing foundation and the installation of new foundation and the supply and installation of the gates was £5614 plus VAT

 

7. The claimant completed the demolition of the existing foundation and then installed a new foundation to his own specifications in preparation for the gating system.

 

8. At this point, on the XXX date, the claimant informed the defendant by email/telephone call that they would be an increase in price of £XXX – a 28% increase.

 

9. The defendant refused to agree to this variation in the contractual price

 

10. The claimant refused to proceed with any further work and presented the defendant with an invoice for £XXX

 

11. The defendant has refused to pay the said invoice.

 

 

 

Counterclaim

1. The defendant has sought expert opinion as to the quality of the new foundation which has been laid by the claimant.

 

2. Two experts, independent of each other, have each concluded that the claimants foundation is of poor quality and is inadequate to meet the need as a foundation for an automatic gating system.

 

3. Furthermore, the claimant’s themselves instructed their own expert to report on the quality of the work done by the claimant and they also have concluded that the foundation is of poor quality.

 

4. Additionally, it is the opinion of the experts that the foundation which was previously judged by the claimant to be unsuitable was in fact completely suitable and need not have been removed

 

5. Accordingly, before the installation of any automatic gating system can continue, the defendant will be obliged to demolish the work carried out by the claimant and reinstall a new foundation to a satisfactory specification.

 

6. As a result of this, the defendant has either incurred or will be faced with certain expenses and all losses.

 

Particulars of expenses

 

 

ADR cannot be required by the court. It can be suggested by the process but it would be most improper for a court to take a negative view of your refusal to get involved.

 

Particularly in an expert industry like this, you need to be very careful about getting into ADR if you do not have equal expertise – which you don't. ADR is usually suitable for two corporates who are in conflict with each other. For individuals, it is extremely overrated and usually acts for one party to cheat the other of their rights.

 

Don't worry about Tomlin order is for the moment. That comes up if the other side approaches you and wants to try and negotiate a deal. If eventually you agree some kind of settlement which appeals to you then you need to hammer out the details, render into a Tomlin order and have it signed off by the judge. It's all a question of how quickly they blink – if they do at all.

[disillusion'd]

OK, Ive copied that. I'll work on it.

 

My builder is working out material quantities and specific costs as he has to separate them out from materials for other work that was being done on site at the same time. I won't get that til tomorrow earliest, but I can estimate and alter later.

[BankFodder]

Okay but don't let him hang around. You really need to get this sorted out by Tuesday in order to tidy up the details here.

[BankFodder]

Here's the file

Gating system.pdf

[disillusion'd]

Thank you BankFodder. You've held my hand all the way through this.

[BankFodder]

That's what we do, but remember that it's your case, your winnings if you win, your losses if you lose. You must exercise your own judgement

[disillusion'd]

Hello

 

I've worked on the particulars of claim. It is largely as you wrote, with a few modifications.

 

I put in a claim to MCOL for £8404. My figures here are for the invoices I hold. My builder has a few more (to come) so I wasn't too far out I think.

Final particulars of claim draft 1.pdf

[dx100uk]

att unapproved

you need to remove names and clim number etc etc

[disillusion'd]

oops

[disillusion'd]

Can you remove it, please?

[BankFodder]

Hello

 

I've worked on the particulars of claim. It is largely as you wrote, with a few modifications.

 

I put in a claim to MCOL for £8404. My figures here are for the invoices I hold. My builder has a few more (to come) so I wasn't too far out I think.

 

I would take out paragraph 15 of the defence. It's not really part of the facts of the case. It can be useful as evidence later on – particularly if you have written exchanges which demonstrate the lack of cooperation.

 

One thing that makes me curious is how your experts have been able to conclude that the pre-existing track was suitable even though they couldn't have seen it because it had been demolished. Please can you let us know about this. It is a question which will come up in the proceedings

[disillusion'd]

]This is a difficult question and one I've been concerned about presenting

- however it has been the largest part of my costs to date.

 

I was present throughout the laying of the removed concrete foundation.

It was done with skill and care by my own inspection and that of my builder who did the demolishing work (not the builder who had laid the track) who is a builder of 35 years experience

 

. It was his opinion and my own that the concrete foundation was laid to industry specification. He was surprised that the concrete was required to be removed.

 

I contacted several companies who supply the bolt-on track system for which we had prepared the foundation originally

 

. I was told there is no industry specification governing the track lay system, or requiring that the track is embedded in concrete which is what the claimant caused us to do

 

. It is apparently the preference of most installers to have a bolt-on track precisely because it is a simple matter to remove it and replace if it is damaged

- or laid crookedly as this embedded track has been.

 

I am told the choice is purely at the personal preference of the installer.

The track suppliers told us that if the concrete base is not completely even as no man-made base can be, shims are used to level it.

 

The claimant has told us that the concrete was not flat enough for him.

The suppliers told me that a bolt-on track can be laid on any driveway or even on block paving which is not even. The claimant will disagree.

 

It seems difficult to get any documentation on this because, as the suppliers say, 'it's too well accepted in the industry for suppliers to produce a document on this'.

 

Please can you give me some advice on this. I don't want to get demolished in the court room!

 

I have taken out the paragraph you suggested. I have put in a few further paragraphs. Please would you advise me if any of these should come out or be changed.

 

I'm struggling a little with no 14.

What I want to say is that on different occasions when I queried, the claimant presented me with different versions of what he was asking me to pay for, so I never knew what it was that I was being asked to pay for

 

. It changed each time I wrote back why I disagreed. There was no invoice presented until some time later. You would probably say it is a short concise sentence.

 

Today I received by post a Notice of Proposed Allocation to the Small Claims Track with form N180 to fill in and send back to the Court. It's unclear, I assume this goes to the County Court suggested on the MCOL site under our claim number.

 

Re the written evidence of an expert,

I will ask to show the claimants expert report, plus my quotes from accredited gate installers who have stated that the track must be removed.

 

One has written that his company 'would not be prepared to install a tracked gate onto this track’ . I guess I should ask to bring an expert which gives me the option?

 

The claimant has sent me an email accepting that the track is not correctly laid and must be replaced.

Final particulars of claim draft (2) for PDF.pdf

[BankFodder]

You are a long way from a hearing so we can worry about how you're going to present this down the road. I was only asking because it occurred to me that I needed to raise the point. It's not immediately relevant.

 

I have to say that with all the admissions that are being made by the claimant, I'm just wondering where exactly are the issues between you – the issues being points in dispute.

 

Now that he has agreed that the track is not correctly laid, he basically has no case and there is no reason for him to continue the claim. Now that he has agreed the track must be replaced he has pretty well handed you a victory on your counterclaim.

 

Could you just quickly list out the remaining issues in contention please

[BazzaS]

ADR cannot be required by the court. It can be suggested by the process but it would be most improper for a court to take a negative view of your refusal to get involved.

 

The court cannot consider a refusal to undertake ADR when making its judgement : it should not be allowed to be raised until judgment has been made.

The court can consider if a refusal to undertake ADR was reasonable or not when it comes to costs : this will be of less import if the claim is in the Small Claims rather than fast- or multi- tracks.

 

Looks like this is Small Claims track.

As such the permission of the court will be required to allow expert witness evidence (even 'written only') (CPR 27.5)

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27#27.5

 

Only one expert (who's responsibility is to the court, not either side) for any issue in dispute is likely to be permitted (CPR 35.4(3A))

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35#