Small Claims - breach of contract glazing

[pyrocluster]

Hi,

I am new to the forum and started a small claims (as an individual) against a glazing company for breach of contract.

The case has been rather prolonged for various reasons, I will try to summarise but apologise in advance for the long post,

The company was contracted to supply and install bifolds in my new kitchen extension last year. Their surveyor came out to survey the opening, order details etc.
The screed and floor were not down yet and we communicated very clearly the system track must line up flush to the projected finished floor, to prevent tripping, protruding parts etc. The surveyor requested express terms in the contract, after liaising with the site contractor the glazing company emailed a contract with accurate millimetre heights.
The surveyor called me over the phone (call recorded) to confirm everything as agreed. I paid a deposit and confirmed the contract between myself and the company.

Long story short, the installation went through and signed off by the glazing company. The building work moved forward. All balance paid in good faith that the company had performed the contract as expected by a reasonably competent professional. The tiles went down at later date in line with the ground floors and it was brought to my attention the track was protruding over the floor by a margin of centimetres.

I am not a surveyor and in this instance had to triple check measurements before appointing responsibility.
I notified the glazing company and right from the start they argued everything was done right. To keep this short, I made a timeline below,

• Jan 2018 - company notified of issue and invited on site / they denied responsibility outright / requested system drawings
• Feb 2018 - company became unresponsive / no site visit / case submitted with all evidence to mediation scheme they are a member of
• April 2018 - long trail of wasted communications / company refused the error but proposed "goodwill offer" under terms to reposition system / "terms" were that all making good damages to the building should be covered by client.
• May 2018 - One of the directors accepted to visit site 4 months late to measure / a witness was present. They arrived premeditated to blame the issue to the floor / they took measurements and photos pretty much proving doors are in the wrong position. They simply repeated "conditional goodwill-only" offer.
• The offer was reject as unacceptable, too many risks and costs while the other party was at fault not admitting the breach. The company somehow assumed they have the right to return on site for works after 8 months while disputing any responsibility.
• May 2018 - I sent a final settlement offer equal to the refitting cost they disclosed, much lower to the remedial costs. The reason was to receive part compensation and appoint a competent installer to undertake the full remedial works. They rejected the offer in a very rude email claiming I was after making money.
• June 2018 - Mediation scheme offers arbitration but the company says "case is closed and we do not want to hear again".
• June 2018 -Evidence, remedial quotes and expert witness estimates are collected / Served Final Notice with steps and timeline asked other party to disclose evidence.
• July 2018 - Notice expires without reply / I extended notice by 7 days on email, company responds they accept none of my views or positions, 3rd party survey costs etc and stand by goodwill offer / I instruct independent Expert Witness pre-action due to the precision of the error and complexity
• Sep 2018 - Report conclusion is that doors were designed shorter and fitted higher than contract
• Oct 2018 - Claim, Particulars of Claim and annexed report are all served to defendant

The damages include part removal of render and plaster/plasterboard outside and inside the building respectively, decorations etc. There is risk of damage to tiles and kitchen furniture. The cost is in the range of few thousand pounds assuming the system is reused and refitted.

The company argue they do not have to cover making good damages because this was new built and incomplete at the time of fitting.
According to their rationale it was someone else's responsibility to evaluate the errors in their works against the contract. I simply put it they have to bring me in the position I would have reasonably been under the contract execution.

Due to the complexity of the case, precision agreed and continuous dispute from the other party, I decided to appoint the independent expert witness pre-action. I would have difficulty supporting my own measurements to a judge. However I do understand they need to approve the report during DQ stage, so I may not be able to claim that cost back.

I am a little overwhelmed about performing at a hearing, how to prepare/present evidence and ensure I follow the CPR rules. Especially because they are a mid-scale company and will potentially afford a solicitor to represent them, argue details or use case law.

Any help on how to prepare before the defence would be most welcome.

[pyrocluster]

Coming to practical CPR issues...I may have served PoC one day too early. I read in most cases the problem is where separate PoC are served late, but what if served early?

The MCOL guide is misleading,
https://www.gov.uk/government/upload...user-guide.pdf

it advises that additional PoC should be served within 14 days from the ISSUE of the claim. However CPR-7.4b.1 says after the SERVICE of the claim (and 7E points to the same).

In this case I may have served PoC 1day before the claim is "deemed" served based on the five day period from issue and also filed a N215 certificate with that date. What now?

[pt2537]

Coming to practical CPR issues...I may have served PoC one day too early. I read in most cases the problem is where separate PoC are served late, but what if served early?

The MCOL guide is misleading,
https://www.gov.uk/government/upload...user-guide.pdf

it advises that additional PoC should be served within 14 days from the ISSUE of the claim. However CPR-7.4b.1 says after the SERVICE of the claim (and 7E points to the same).

In this case I may have served PoC 1day before the claim is "deemed" served based on the five day period from issue and also filed a N215 certificate with that date. What now?

i dont think you have anything to worry about, if the Claim form was sent and the particulars of claim also sent, then as long as youve filed a certificate of service you shouldnt have a problem.

Let the Defendant take the point if he wishes, then deal with it and if not then you should be fine.

[pt2537]

Hi,

I am new to the forum and started a small claims (as an individual) against a glazing company for breach of contract.

The case has been rather prolonged for various reasons, I will try to summarise but apologise in advance for the long post,

The company was contracted to supply and install bifolds in my new kitchen extension last year. Their surveyor came out to survey the opening, order details etc.
The screed and floor were not down yet and we communicated very clearly the system track must line up flush to the projected finished floor, to prevent tripping, protruding parts etc. The surveyor requested express terms in the contract, after liaising with the site contractor the glazing company emailed a contract with accurate millimetre heights.
The surveyor called me over the phone (call recorded) to confirm everything as agreed. I paid a deposit and confirmed the contract between myself and the company.

Long story short, the installation went through and signed off by the glazing company. The building work moved forward. All balance paid in good faith that the company had performed the contract as expected by a reasonably competent professional. The tiles went down at later date in line with the ground floors and it was brought to my attention the track was protruding over the floor by a margin of centimetres.

I am not a surveyor and in this instance had to triple check measurements before appointing responsibility.
I notified the glazing company and right from the start they argued everything was done right. To keep this short, I made a timeline below,

• Jan 2018 - company notified of issue and invited on site / they denied responsibility outright / requested system drawings
• Feb 2018 - company became unresponsive / no site visit / case submitted with all evidence to mediation scheme they are a member of
• April 2018 - long trail of wasted communications / company refused the error but proposed "goodwill offer" under terms to reposition system / "terms" were that all making good damages to the building should be covered by client.
• May 2018 - One of the directors accepted to visit site 4 months late to measure / a witness was present. They arrived premeditated to blame the issue to the floor / they took measurements and photos pretty much proving doors are in the wrong position. They simply repeated "conditional goodwill-only" offer.
• The offer was reject as unacceptable, too many risks and costs while the other party was at fault not admitting the breach. The company somehow assumed they have the right to return on site for works after 8 months while disputing any responsibility.
• May 2018 - I sent a final settlement offer equal to the refitting cost they disclosed, much lower to the remedial costs. The reason was to receive part compensation and appoint a competent installer to undertake the full remedial works. They rejected the offer in a very rude email claiming I was after making money.
• June 2018 - Mediation scheme offers arbitration but the company says "case is closed and we do not want to hear again".
• June 2018 -Evidence, remedial quotes and expert witness estimates are collected / Served Final Notice with steps and timeline asked other party to disclose evidence.
• July 2018 - Notice expires without reply / I extended notice by 7 days on email, company responds they accept none of my views or positions, 3rd party survey costs etc and stand by goodwill offer / I instruct independent Expert Witness pre-action due to the precision of the error and complexity
• Sep 2018 - Report conclusion is that doors were designed shorter and fitted higher than contract
• Oct 2018 - Claim, Particulars of Claim and annexed report are all served to defendant

The damages include part removal of render and plaster/plasterboard outside and inside the building respectively, decorations etc. There is risk of damage to tiles and kitchen furniture. The cost is in the range of few thousand pounds assuming the system is reused and refitted.

The company argue they do not have to cover making good damages because this was new built and incomplete at the time of fitting.
According to their rationale it was someone else's responsibility to evaluate the errors in their works against the contract. I simply put it they have to bring me in the position I would have reasonably been under the contract execution.

Due to the complexity of the case, precision agreed and continuous dispute from the other party, I decided to appoint the independent expert witness pre-action. I would have difficulty supporting my own measurements to a judge. However I do understand they need to approve the report during DQ stage, so I may not be able to claim that cost back.

I am a little overwhelmed about performing at a hearing, how to prepare/present evidence and ensure I follow the CPR rules. Especially because they are a mid-scale company and will potentially afford a solicitor to represent them, argue details or use case law.

Any help on how to prepare before the defence would be most welcome.

When is their Defence due? I would suggest that until you have their defence it is going to be tricky to advise.

one thing to be aware of is that it is quite unusual for expert evidence to be called in the small claims track, so there is a risk you could get reallocated into the fast track where costs come into play

[pyrocluster]

i dont think you have anything to worry about, if the Claim form was sent and the particulars of claim also sent, then as long as youve filed a certificate of service you shouldnt have a problem.

Let the Defendant take the point if he wishes, then deal with it and if not then you should be fine.

Thank you, I couldn't find anything specific in CPR suggesting an issue if particulars are served earlier than the claim.

I just want to be sure there are no grounds on such trivial matter for their defence to dismiss the case on technicalities.

[pyrocluster]

When is their Defence due? I would suggest that until you have their defence it is going to be tricky to advise.

one thing to be aware of is that it is quite unusual for expert evidence to be called in the small claims track, so there is a risk you could get reallocated into the fast track where costs come into play

The acknowledge date is 3rd of Nov, they may extend assuming a full defence and possibly a counterclaim.

Re: expert, he was instructed as part of the notice steps i.e the defendant disputed all measurements and the error. They were never willing to provide a proper response quoting factual measurements or the contract. Always sending personal tone emails without evidence.

The notice allowed 14 days to share measurements/evidence or, agree to an independent survey on shared costs. They were even offered the option to choose the expert but simply rejected everything.

The next step was to instruct a survey on my own, because I still believe it would be complicated to explain all the technicalities to the judge without qualification. Ideally the expert should have been instructed during proceedings. I had to ensure the contract was interpreted correctly. The expert service was inferior to my expectations and it was very difficult to find an expert. But he was chosen from two options to demonstrate cost mitigation.

Small claims only allows a max of £750 according to CRP. There is a possibility the report is not accepted by the judge which will be difficult.

I hope it does not move to fast track, it is a remedial claim for approx. £2,500

[pyrocluster]

I received an acknowledgement of service letter from Money Claims on the last day of the 14 day period.

The letter is stamped dated "received" by the court on 1st November 2018, a little strange the director signs it as 27th October...

They now have to my understanding another 14 days to file a defence?
They intend to "defend all of the claim" despite receiving a report of breach with the particulars, so I anticipate they will exhaust all the procedures.

I understand that preparing points before defence is hypothetical however their key arguments are historically known.

I would appreciate some thoughts,

The company argue that the floor is not "perfect" to millimetre precision as suggested in the contract, so they do not need to hold their end of the contract. However the contract does not stipulate a mutual term, the scope was for the two to meet but one does not affect the execution of the other. Even assuming that the floor was perfect to millimetre the door track would still be in breach of contract by a margin of 2 centimetres for anyone concerned.

Consideration needs to be taken into account for mechanical precision required in such high end aluminium systems. The design provided post-dated 7 months after installation and shows millimetre precision. The key is in the dimensions, the doors were designed shorter from the start.

In contract terms, the contract was between myself and the company. There is no mention of another party in the contract but it is implied the measurements were previously consulted with the building contractor. There is no issue with the dimensions alone but the company did not follow what they suggested in their contact when designing the system. Someone suggested the doors may be coming from stock but I won't go there.

The final point is neither party's actions affected, altered or impeded the performance of the parties involved in a specific way. The original conditions at the time the contract was signed were also the same at time of fitting i.e the size of the opening measured.

The company is trying to blame everything else but themselves.

[2222]

It is not really worth their while to appoint solicitors for a claim of a couple of thousand in the small claims track. Hopefully, you will find they now make a sensible offer. They could easily spend as much defending this as you are claiming, so they lose either way.*

If it does go to fast track, I think you should appoint a solicitor to act for you immediately. If it stays in the small claims track, it makes sense to continue to represent yourself.

[pyrocluster]

If it does go to fast track, I think you should appoint a solicitor to act for you immediately. If it stays in the small claims track, it makes sense to continue to represent yourself.

I agree, although not sure what timeframe I will have to find a capable solicitor for this sort of case at a reasonable fee. Albeit the majority of the leg work is already done.

There are a some issues for me to understand. For example how to present the report, is this done at DQ and do I need to add a letter or additional information to justify the cost and necessity to the judge before a hearing?

The report will need to be accepted first in court, if not I cannot imagine what they can base their views on for credibility of technical details or quantifying the damages.

https://keoghs.co.uk/keoghs-insight/...e-small-claims

My surveyor's service was far from perfect. They delayed the report and also presented additional hours late in the process. Any independent report would cost higher than small claims allowance. But on top of this they notified me their fees have now doubled should the court use their service under CPR35 for i.e questions etc. (This may be for RICS)

I will need to work on presenting the report and justify the need to bring it into evidence.

[pyrocluster]

A defence was submitted one day before expiry of 28 days from claim date.

I am now in receipt of a letter including two pages, a court letter and counterclaim form N9B with a 20 line hand written defence. The company is making a counterclaim of over £10,000 for "Loss of business time taken by sales staff member and all correspondence". This is ludicrous, I am not sure if they realise what they are claiming.

The handwritten defence suggests there is a cover letter, a director letter and correspondence. I have not received either of these documents so far. They may be arriving in the post but I cannot understand why not with the court letter.

The counterclaim fee has not been entered or paid in the form. The court letter says,

"The enclosed response is deemed to be a counterclaim. The Defendant has a total of 10 days from the date of this letter to pay the requested fee or the court will take steps to remove the counterclaim and the claim will proceed as defended only. If no counterclaim fee is received, and the counterclaim struck out, then a Defence or Part Admission will be filed as per the defendant's original response, and Notices and/or Directions
Questionnaires will be issued."

The company claims "not in breach of contract" pretty much on the same arguments already exchanged in previous correspondence. They stand by being "correct" and make no mention to my evidence sent in particulars.

At this point it does not appear I have to return anything to court. But I should probably prepare for my defence if the fee is paid.

1. Company is making an unreasonable counterclaim outside the track of the court and somehow "forgot" to pay the fee. Is this a tactical move from a solicitor to test if I withdraw the claim or they are trying to move the case at higher track to bring lawyer's costs into play?

2. The defence is based on the same points, I would still need the full letters which I have not received but cannot understand how they intend to defend the breach of contract on such arguments. There is no mention of the expert report but essentially they are disputing the expert witness.

[pyrocluster]

Any thoughts on process or next steps?

I contacted MCOL and they said no other documents are served to them and they will not be sending anything further served by defence since the "defence" is now filed and further docs would require court permission (as I expected).

The defence is missing documents claimed to be attached and does not address my numbered particulars, based on CPR I understand this to be an implicit admission of points not individually addressed.

[pyrocluster]

Would really appreciate some help as I don't want to miss any time limits. The court doc does not provide a lot of detail.

I understand CPR 20 requires response to CC as a "part 20 Defendent" but fee was only paid last Friday. Does the 14 day reply period still count from the service date or am I going to receive docs from the local court it was transferred first?

[pyrocluster]

I received allocation to Small Claims track and some generic Directions from what it appears.

I want to admit an expert report into evidence and seek permission, the Direction included states,

14) Neither party may rely at the hearing on any report from an expert unless permission has been granted by
the court beforehand. Anyone wishing to rely on an expert must write to the court immediately on receipt of
this Order and seek permission, giving an explanation why the assistance of an expert is necessary.

What information would you include in the letter to the court apart from the technical reasons? Does the cost of the report need to be included at this point (CPR35.4)?

Thanks

[pt2537]

I received allocation to Small Claims track and some generic Directions from what it appears.

I want to admit an expert report into evidence and seek permission, the Direction included states,

14) Neither party may rely at the hearing on any report from an expert unless permission has been granted by
the court beforehand. Anyone wishing to rely on an expert must write to the court immediately on receipt of
this Order and seek permission, giving an explanation why the assistance of an expert is necessary.

What information would you include in the letter to the court apart from the technical reasons? Does the cost of the report need to be included at this point (CPR35.4)?

Thanks

I think you need to set out the reasons why an expert is needed, explain why and what points the expert will need to address etc, the Court then will decide on the issue and will make an order either way

[pyrocluster]

Thank you, I have sent a letter to the court setting out reasons such as
high precision requirements for the system, heights agreed on contract that the other party now disputes and the need to have independent assessment of heights that demonstrates the breach. Lastly quantum, i.e evaluation of remedial damages to bring me in the original contract position.

I am not familiar how the courts process this information, hopefully they will ask to review the report before making a decision. I have provided a rate for the expert in case it is decided questions should be put forward by the other party. I doubt this is necessary for such case and it would be costly.
I will not be able to recover the report cost due to the SCT cap. The expert came into play after the other party denied everything, refused to provide evidence to support their dispute and refused to agree to an independent survey. I am not sure if a DJ will review the particulars of claim while making a decision on the report.

The defence so far is acting out of spite, just to frustrate matters. They have made no contact since the claim was filed and even had the propensity to counterclaim a ridiculous amount.