Being charged for unusable crooked sliding gate track/ broken contract

[disillusion'd]

Thank you BazzaS. I'll complete the form accordingly.

 

Bankfodder, Shall I just tidy up that particulars a bit and send it in today? I'm guessing it gets emailed to the same address at MCOL or do I have to send it somewhere else too by registered mail?

 

Is there anything I should leave out/change?

 

You asked about the issues: as I see them they are:

I haven't paid his invoice £918.

 

He hasn't withdrawn his claim for £918 + £10% late payment fee + further interest so I had to respond.

 

The costs to remove and replace his work by accredited company: £2200.00

 

I want to claim for the unnecessary removal of the first foundation, wasted time, disruption for removal of both the first foundation and his work.

 

He has offered to 'rectify' the track. I don't want him working here, I have lost confidence in him . (Also if he replaces, a new installer taking over won't give us a warranty).

 

We entered into a contract which he changed after commencing work by changing the price. This is one of two reasons I haven't paid. The second reason is they did not appear to know what they were invoicing me for, saying it was for work that I had done (3 Aug), then that the charge was for site visits and delays (04 Aug) , and then it was finally that it was for the track (16 Sept).

 

The admission he made re keeping to his quote: he has said 'it is true I originally agreed to keep to the quote'. I think by this he means he agreed in June 2015 when he offered and I did not accept. I believe he will argue that he commenced work in April 2016 without agreeing a price after a long telephone call and immediate attendance after that at our site, followed by the track installation. I don't know where we are with a contract after this, and his changing the price?

 

I think he didn't withdraw the claim after his expert's report because he's quite chaotic, and of course because he wants us to pay the invoice.

 

He will argue that he is not going to pay for removal of first foundation, that in his expert opinion, it wasn't good enough.

[BankFodder]

I'll deal with the rest later – but in terms of sending off the defence and counterclaim, the very best thing you can do is to go to your local County Court and give it to them over the counter.

 

County Court staff are very decent but the system is hopelessly under resourced and they make big mistakes.

 

You should try to go to the County Court with your defence and counterclaim and also a copy. Show them the documents you have so far which show that the case is being transferred to them. Ask them to accept your defence and counterclaim and to stamp it and also to stamp the copy. Once you have a stamped copy send a photocopy of that by recorded delivery – or preferably guaranteed next day delivery – to the claimant.

 

It really is the very best idea to get to the court yourself and do this. If you're not able to do that, then you will have to fall back on sending a copy by recorded delivery to your local court and also a copy by recorded delivery to the claimant. However, it will be much better if you can get the court to stamp it and to receipt you copy and then send it all off.

 

In respect of the rest, I've just come back from the dentist and I'm just too distracted with pain to deal with it at the moment.

[disillusion'd]

Thank you Bankfodder.

 

It's very good of you to write to me when you're feeling awful. I really hope it improves soon!

 

I'll take in to the Court tomorrow first thing in the morning.

 

Do Litigant in person fees of £18.00 per hour apply to Small Claims track?

[BankFodder]

No they don't. Keep a detailed record of the amount of time you spend on all of this – just in case the question of costs comes up. The judge has in exceptional cases discretion to award costs – especially if the claimant has acted unreasonably

[disillusion'd]

Is your tooth better?

 

Can I claim for loss of enjoyment of my property?

 

The track is going to be a bodgie because we are going to have to try to join the track to a part we can get at to remove (constructed after installation). It will never be right, even though it's cost a lot to do.

 

Alternatively (or additionally) can I claim an amount for disruption/inconvenience/impact on my building schedule? If so, is this to be left to the Courts discretion?

[BankFodder]

In theory you can, but it's going to make it more complicated and also you stand to lose the moral high ground in the eyes of the judge in the event of a hearing. Those kind of losses which are known as "general losses" have to be accompanied by quite a detailed and convincing account so that a judge can allocate a money value to them. Also you need to keep it modest so that the judge doesn't think that you are simply trying to make a land grab

[disillusion'd]

OK. I have cut my claim figure back from $8404 to £7896.

 

Perhaps I should just say at the end of my claim that I have been without the use of the gate and security for the period of the delay caused by the claimant and not ask for any financial compensation.

[BankFodder]

This

As a result of the claimant's substandard conduct of his contractual duties, the defendant has been left without gates and security for XXX months since X month and continuing

 

Don't forget to include a statement of truth and to sign and date it

[disillusion'd]

I did forget. Thank you.

 

That's a good sentence.

 

Do I include all the extra that I put in under the defence? Perhaps I have included too much. But I wondered if the courts would decide the case based on what I had written if the claimant doesn't do anything in the time required.

[disillusion'd]

Have just been to the County Court, they no longer have counter service, you have to use their Dropbox, which I did for the Particulars and the Form N180 Directions Questionnaire. They apparently process and backdate by a day. Spoke to a lady on the phone, she said they will send the docs on to the other party.

[BankFodder]

Well protect yourself and send a copy to the claimant directly as well – recorded delivery – with a note explaining that they have also be filed with the court and the court have informed you that they will be letting them have a separate copy by post.

 

Belt and braces

[disillusion'd]

Right. I'll do that now.

 

I've posted a copy of the Particulars off to the Claimant by recorded delivery, guaranteed before 1pm tomorrow. I kept a photocopy of the note I sent with the Particulars.

 

I was thinking of emailing the Particulars over to the MCOL email address. Just in case.

[BankFodder]

Yes, why not.

[disillusion'd]

I've just sent that off now.

[disillusion'd]

Hello

 

Can I check the next step with you please? I put in my defence and counterclaim Particulars along with the Directions questionnaire at the County Court on 15 December, my deadline was 19 Dec. I also posted off a copy of the Particulars to the claimant on 15 Dec. I saw that the claimant had been given a deadline of 3 January for his Directions questionnaire.

 

I haven't received any documents at all from the Court since the Directions questionnaire and no documents from the claimant, nor an answer to the CPR 31.14 I sent. At this stage all I have from the claimant is the very short description of their claim on the original notification of the claim.

 

I have received two emails from the claimant saying they were offering to 'come and straighten' the crooked track. I don't want them working here again. We wrote back to them the first time saying that the matter was with the Courts, and they received my Particulars shortly after the second email, so they know that we have lost confidence in them.

 

Bearing in mind that it is over 2 weeks since my counterclaim went in, is there an opportunity for me to ask for judgement against them if they have taken no action, or is this not possible once it has moved from MCOL to the County Court?

 

Is there anything further I need to do?

 

Thanks for your help.

[BazzaS]

You need to give the County Court it had been allocated to a few days to see if the claimants DQ has been received.

If it hasn't the court MIGHT make an order of its own volition but you can speed up the process by making an application for an "unless" order (that their claim is struck out unless they comply with the court's instruction to complete a DQ).

Have they replied to your counterclaim? If not, then also seek summary judgment for your counterclaim unless they comply with the court's instructions.

You can ask for both "unless" orders in a single, joint application to the court.

[disillusion'd]

They haven't replied to my counterclaim - or at least, I haven't received anything. Bearing in mind the holidays, how much time would they be allowed for a reply? Perhaps I'm being too impatient. I do think they would have jumped on the opportunity to get a judgement against me on MCOL if they could have.

 

How would I know if the Courts have received the claimants DQ? It isn't possible to speak to anyone there as they don't have counter service. Would this just be a notification from the Court?

 

Is this 'unless' application just a letter I write to the Court, or is it a form?

 

Do you recommend taking the 'unless' application route - I'm reading online that it's not very common and I'm not sure if the failures could be said to be wilful or just because it was all over Christmas. Would I do better to simply allow the process to go forward in the normal way? I guess it wouldn't look so very good for the claimant if he hadn't complied with the Court requirements. But equally, I don't want to fail to take a route I should take.

[BankFodder]

Have you tried telephoning the court? I suggest that you do this because they may able to tell you if they've received anything. Also, have you accessed your account on MoneyClaim? This may give you some information on current progress.

 

Other than that, I suggest that you write to the claimant and tell them that as they know, you have already filed a defence and counterclaim. You are now enclosing a copy of your directions questionnaire and although you expect that they have sent their own copy to the court, it might be helpful if they sent you a copy as well.

 

You can also ask them if they are proposing to make any replies to your counterclaim.

 

I suggest that you send this letter off tomorrow and send it by recorded delivery.

 

Other than that, suggest that you wait until you hear from the court that the matter has been transferred to your local jurisdiction.

 

It could be a good idea to call the court every Monday, for instance, and to see if they have received anything and if there are any developments.

[disillusion'd]

Hello

 

In a phone call to the Court they told me they had not received the DQ from the claimant, due 3 January. They said the Court would be sending their own 'unless' order to the claimant, and they told me they generally allow 14 days for a response.

 

I imagine that i will have to wait until that deadline expires before I can apply for a judgement against them?

 

MCOL has no more information listed on it, it seems since the notice that the claim was being transferred to the local Court.

 

I read online that the original claimant doesn't necessarily have to file a defense to a counterclaim. Is that true for a Small Claims Court matter?

[BankFodder]

It may well be true. I think most people don't file a defence to a counterclaim and I also think that it is fairly unusual for part 20 claimants to try and get a default judgement on an unanswered counterclaim.

 

You could put in an application for the judgement but I suppose it would cost you quite a bit of money and I think in the end the judge would simply make another "unless" order – so it's probably not worth your while.

 

Wait and see what happens when the claimant receives the order from the judge. If they failed to respond then their claim may well be struck out and then you will be left with the counterclaim and a hearing date would be allocated for the trial of the counterclaim.

 

Keep in regular contact with the court – don't rely on them to contact you.

[disillusion'd]

Thank you, I'll do that.

[disillusion'd]

Hello,

 

Can I check what is required to be done now?

 

I have checked with the court, the claimant was required to lodge a DQ by 3 January and failed to do so. After i called a couple fo times the court sent them an 'unless' order to reply by 20 January and they sent in their DQ on 17 January. They have not supplied a defence to my counterclaim.

 

I don't know what their defence is or what documents/other they will rely on as I have received nothing from them or from the court. They have received my defence and counterclaim both from me by recorded mail and from the court.

 

Is there something i should be doing now for the court?

[BankFodder]

I think that as they have now responded with a DQ, that you had best way for a hearing date to be allocated and instructions are given concerning the exchange of documents.

 

Of course, you could make an application to get a judgement on your counterclaim but this will cost you money and because it is a counterclaim – although it should have the same status as a principal claim, they tend not to.

 

However, as you seem to have made some headway telephoning the court, you could telephone the court again and ask them if they will send another "unless" order unless they supply a defence to your counterclaim. The court are unlikely to do this – but you never know and at least it doesn't cost you anything.

 

Although it is frustrating not knowing what is going on, their lack of responses and lack of cooperation will count against them later on – especially if there are any issues relating to costs

[disillusion'd]

Hello.

 

I've just received a notice from the Court giving me a date for a Directions Hearing. It says 15 minutes have been allocated for this.

 

The notice says: "Upon considering the Court File...

1. This matter be listed for a directions hearing to deal with whether expert evidence is required."

 

What am I required to do for this hearing?

 

I did ask for the opportunity to use expert evidence , as I wanted to present quotes, witness statements and the evidence of the claimants expert. In my Directions Questionnaire I ticked the box "Are you asking for the courts permission to use the written evidence of an expert", and in the 'Why' box I wrote 'Technical expertise and opinion'.

 

In the box saying how many witnesses, I wrote 4. This was to use the witness statements of 4 witnesses, (but not ask them to appear, except maybe my husband).

 

I haven't seen anything from the other side at all, no documents of any kind and no response to my CPR31.14 request.

[BankFodder]

Four sounds a bit like going over the top to me - – but if you think that is what you need then it's up to you.

 

Have you got the witness statements ready yet? If you have, then I would suggest that you let the other side see them and agree them or dispute them and decide what aspects of them are in issue. You can also ask the other side if they want the experts present or whether they are happy simply that the statements are presented to the court without any supporting oral evidence.

 

At the directions hearing, you can then tell the judge that such and such statements have been agreed, such and such statements are in dispute but no supporting oral evidence is necessary, and such and such statement is in dispute and it will be necessary for an expert to attend.

 

The court will be very pleased if you can keep it all to a minimum and the few experts who need to turn up the better. I don't think the court will be happy to feel that there are four experts being paraded before it for a small claim.

 

In addition to that, you can ask the court to make orders as to disclosure of evidence by the other side, if you feel that there is stuff they are withholding or orders on any other matter which you think might be relevant.

 

How long before the hearing date?

 

Incidentally, when you send the statements to the other side, you should accompany them by a formal letter, describing each one, the qualifications of the expert who has produced it, formally asking them if they would want to question the expert in court, if no, do they agree the statement and if not to they take issue with all of it or part of it – and if so which parts.