Flaws in Defence counterclaim Help

[BazzaS]

I've certainly felt dissuaded from trying to offer advice by the almost impenetrable posts of the OP, devoid of any useful details, and them not interacting when asked for that detail, or of not following the advice offered (and hence, now I am adding comment rather than advice).

 

Maybe the OP feels they don't want help, but rather, someone to blame when it all goes wrong.

I'm wondering this because they don't appear to be helping CAG'ers help them ....

Edited August 28, 2022 by BazzaS

[BazzaS]

Comes here a day before WS due, with his last contribution August 27th.

 

I’m not sure if he is a windup merchant or just beyond help (as people asked him to reply further before now) : neither are great options.

Edited October 20, 2022 by BazzaS

[BazzaS]

That looks like his WS?

Is it not that he is the claimant (C), except the D has also filed a counterclaim?

[BazzaS]

I still do not know the strength or otherwise of the OP’s position.

 

I do feel that even if they have a strong position, if they present it to the court as they’ve presented info here, that they’ll snatch defeat from the jaws of victory. 

[BazzaS]

Well, what do you think the expert is saying you are entitled to?

 

The expert has looked at what you are saying is wrong and needs fixing, dividing it up into each item you’ve said isn’t up to scratch, and assessed if you are owed anything at all for that item, according to their expert opinion.

 

Where you are owed something, they’ve assessed how much you are owed, in their expert opinion.

 

The total, in their expert opinion, reaches £1,000, comprised of the subheadings they’ve split it into.

 

What other conclusion can you reach from reading the jointly instructed expert’s report?

Edited December 22, 2022 by BazzaS

[BazzaS]

I think the expert states it clearly.

 

I think the problem is you don’t accept that the expert thinks you are entitled to only £1,000 (not the £17,000 you now haven’t established you are owed)!

[BazzaS]

Who do you think the judge will find more persuasive?

 

You, who seems to be pulling figures out of the air, or the (jointly instructed, independent) expert you agreed to.

 

I’m not a chartered surveyor, nor a builder. However I found the expert’s report clear, and can see how a judge would find it persuasive.

The expert notes the questions they have been asked to answer in their instructions.

The expert notes their qualifications and expertise.

The expert lays the report out clearly, answering the points individually.

The expert notes where they haven’t been able to inspect (E.g concealed) work, and states what is their opinion and what their assumptions are.

The expert avoids jargon, or where jargon is essential (such as underpinning vs piling) explains the jargon clearly.

 

Overall the expert’s report gives the impression of an expert well able to give their opinion and express it clearly to the lay person / judge.

 

So, if you think you are owed SUBSTANTIALLY more than £1000, how are you going to persuade the judge you are right and the expert is wrong, against such a persuasive report?

[BazzaS]

Well, you agreed to that expert, the expert was jointly instructed, and has made it clear that the report is in their honest belief and is their professional opinion, as well as highlighting that the expert is aware their duty is to the court, not one side or the other.

 

Unless you can PROVE the expert has made a mistake, you can’t really complain about their report, and in terms of “could i have gone wrong in agreeing to single expert nominated by the claimant solicitors.”

how else would you expect a court to reach a judgment in a case where the builder and you disagree so wildly on what needs paying for!?

 

You are required to substantiate the sums you are claiming for. You can’t say “I need £17,000 to complete the work” and expect the court to grant you that. It may be that you need £17,000 to complete the work BUT you have to show the court WHY it will take £17,00 and WHY the builder is liable for that £17,000.

 

The expert’s report says the builder owes £1,000 towards any work, not £17,000.

 

Do you still owe the builder anything for the work they have undertaken?

Edited December 22, 2022 by BazzaS

[BazzaS]

Make sure you show any prospective builders the court documents and the expert’s report, so they know how much you are willing to pay when you ask them for a quote …….

 

They can then decide if the job is worth it to them, and what sort of client you are likely to be.

This should lead to no mismatch of expectations, reducing the risk of further litigation arising…….

[BazzaS]

Well, expect the court to find in favour of builder for the sum claimed by them, LESS the £1000 the expert believes you are entitled.

 

I’d expect the court to award costs “in the case”, so, to the claimant (the builder), as well as interest based on the amount awarded.

 

You don’t have to get different builders in to do the work for £50 here and £100 there for each small job. Get them to give you one quote in total.

 

 

Edited December 22, 2022 by BazzaS

[BazzaS]

From the WS:

“30. Subsequently the Claimant made an application for Judgement to be set aside which was granted on 10/01/ 2002, further to which Iwas ordered to provide a further particularised Counter Claim and schedule of loss, which I then served on 26/01/2022 (Exhibit 14)”

 

Some people might have considered posting this as it is supposed to be

a) particularised, and

b) have a schedule of loss

 

given that contributors are again asking for the relevant details.

Is that what is at post #133, and if so, why doesn’t the WS try to give detail of exactly what needs fixing and the costs (for each item) to fix it!

 

It shouldn’t be too hard for the OP to provide if it is available to the OP as “Exhibit 14”, but (true to form) the OP prefers to make this like “pulling teeth”.

 

OP if the particulars of claim and schedule of loss match with the experts report: the expert has addressed what they believe you are owed. Nil / nothing for many of the items, and an aggregate £1000 for where the expert believes you are owed.

You’d also be able to ask for costs and ask for interest (provided you included these in your counter claim)

 

Edited December 22, 2022 by BazzaS

[BazzaS]

Comparing items between Simeon's (S) schedule and the expert's (E) report, items 1-8 match in terms of description.

S's item 9 : E's item  22

10 : 10

11 :23

12 :24

13:27

14: 25

15 (air brick) : was the expert asked regarding this? it may be included in their report overall, but then again, only £50 is being claimed

16: 11

17 : 12

18 : 13

19 : 14

20 : 15

21 : 16

22 : 17

23 : 18

24 : 19

25 : 20

26 : 21

27 : 26

28 : 28

29 : 29

30 : 9

 

So while S's schedule seems counter-intuitive (why would you include items where you are claiming zero loss, S's 2,4,6,10, 18,20,22,24,28, and 29?), there seems a vast gulf between what S is claiming and what the expert believes is owed. The items match (albeit with different numbering) except for S's 15 missing from E's report, S's schedule having 30 headings, with the experts report matching 29 of those 30.

 

In summary, if the court prefers the experts view ahead of S's, the judgment (excluding interest and costs) will be in the order of £1k, not the £17k claimed.

 

Edited December 23, 2022 by BazzaS

[BazzaS]

Ideally you’d have got an idea of the sum you were claiming. Courts don’t like it when claimants are nebulous about sums, when the claim is well advanced.

 

Is that why some say zero?

Zero is the wrong thing to say : you’d be better to put “to be determined”, putting zero isn’t the same as “leaving it blank” as zero implies “no loss”.

 

a) why on earth didn’t you ask about this before you filed that schedule

b) why on earth are we only seeing this now? What else (that could be game changing!) remains to emerge??

Edited December 24, 2022 by BazzaS

[BazzaS]

Where did you put a value on them in the claim?

 

The expert has given their opinion on items 1 to 29 where those raise issues of breach / negligence.

[BazzaS]

6 minutes ago, simeon1964 said:

BazzaS: Looks like End of the road

that doesn’t actually answer what I asked (in keeping with your previous posts : not providing info, not answering questions, filing schedules without getting them reviewed …..)

[BazzaS]

23 minutes ago, simeon1964 said:

Thats right but he didnt write builders quotation

Perhaps I’m being obtuse, but can someone explain this to me?

 

MiE was asking about S’s comment of “I have written the defence and counterclaim myself with the help of a legal friend and quickly submitted it to meet deadline as have serious health issues at the time. I contacted my former solicitor there after.  All he did was dealt with  the allocation questionnaire and since the claimant didn't defend it, bingo...”

Then S replies “Thats right but he didnt write builders quotation”

 

?!?

 

Well, surely the only person likely to have written the builder’s quotation would have been the builder, unless I’m missing something……

 

 

[BazzaS]

I’m wondering if what this may come down to is (as an analogy) : 

person buys a 2nd hand car that needs lots of work..

 

Gets a general garage, asks them “sort my car out”, and they do, creating a 2nd hand mini.

 

Garage sues buyer over unpaid fees, but their claim gets struck out.

 

At the same time buyer says “but that’s a (dodgy looking) mini - I need £17k to get it to be the classic Rover I had in mind!”

 

Expert instructed to provide a report, report says “Mini a bit ropey, will take £1k before it is able to get to basic standard” (but it will still be a second hand mini, after the 1k is spent)

 

If that is a fair analogy, then it will turn (as MiE has said), on exactly what was agreed on when the buyer asked the garage to “sort my car out”!!

 

Meanwhile : we are still just guessing

a) as we aren’t hearing the garages side of things, and

b) the car owner never quite answers what is being asked!

 

Edited December 24, 2022 by BazzaS

[BazzaS]

Glad you’ve so effusively clarified in great detail, providing all the relevant info to back up your post, as always!

(in case it isn’t clear, that is sarcasm based on frustration!).

 

Good luck : if you can’t explain it here (given the gentle prodding and guidance offered), how in hell do you expect to explain it to the judge so as to justify your claim for £17k.

 

The judge doesn’t have to help you explain it as they have to be a neutral / disinterested arbiter. It is your responsibility to make things clear and justify your assertions.

Edited December 24, 2022 by BazzaS

[BazzaS]

I don’t know how anyone can do any more than guess, since you haven’t supplied the detail to make an informed assessment.

 

If, somehow, you persuade the judge, then who knows what they will award.

You’d have to have made, and make, a clearer / better / more justified case then is apparent so far, here, though!

 

On info to date, success in your claim to the value of £1k, interest and costs is “best guess”, but it is literally a guess.

Edited December 24, 2022 by BazzaS

[BazzaS]

20 minutes ago, simeon1964 said:

I may not may not be clear at some point.

Well, you need to start making sure you are clear, and when you are asked for specific detail, providing it, and all of it (not just in ‘dribs and drabs’)

[BazzaS]

If I was the builder I’d be putting in a part 36 offer of £1001 (together with costs and interest to be added to the £1001).

Edited December 24, 2022 by BazzaS

[BazzaS]

Was the air-brick included in the expert’s joint instructions?

 

(We don’t know, we’ve not seen them!)

[BazzaS]

9 minutes ago, simeon1964 said:

If this builder had no qualification to tamper with electrical equipment and had connected several cables into the bathroom and cooker extractor fans via another source, tampering with the boiler and with no Fensa authorisation which will warrant my getting qualify people for safety of these appliances. Why would the expert not take these into account and giving Nil amount. Plus the gutter where the fascia was damaged that has been dripping which the expert witnessed himself. It been dripping since the builder walked away almost 3years now with damp coming into the living room.... yet i got nil amount for that too.

Well done! You’ve found a question to ask!

 

You need to be clear on the point you are making, though, as you are asking about electrical equipment, then boiler, and then saying “no FENSA”.

 

FENSA relates to windows and doors though, not electrical nor gas!

 

<just seen that I’ve crossposted on the FENSA issue with Hb >

Edited December 24, 2022 by BazzaS

[BazzaS]

“digging that was suggested months ago to satisfy yourself the expert really was independent?”

 

Digging as in “digging for information”

 

the “to satisfy yourself the expert…..” bit is what gives it away that this isn’t “digging” that gets done with a shovel or excavator.

[BazzaS]

13 minutes ago, simeon1964 said:

I was given two options of which he was the only one online and I chose him. Not much of digging?

you could (& should) have enquired (“dug”) further.

you could (also) have proposed your own INDEPENDENT expert.

 

However, the expert’s report says he was jointly instructed and understood his duty to be to the court.

Edited December 24, 2022 by BazzaS