Court Claim received from builder

[Chickenbrick]

Had originally posted this in the Welcome Forum, but guessing it might be better here.

Just received a court claim from my builder for an remaining unpaid £2.5k as part of a much larger project. I have already informed him I do not consider the payment due as I cannot deem our contract complete due to an issue with an overflowing soakaway which he installed Feb 2018 and has been asked to resolve since Mar 2018.

I have attached the particulars of the claim, which he has submitted himself.

He has made allegations that I have flooded and vandalised the soakaway but provided no evidence to prove this.

Will complete the acknowledgement of service as recommended, I intend to defend this claim and am looking for some assistance with my defence.

[Chickenbrick]

The question I have is..

The builder raised the claim in person rather than using his limited company. Just his name and address as the Claimant, no company name provided.

I have an agreement with his limited company but nothing with him personally, how strict are courts regarding this?

Not sure how to proceed now as I would like to file a counterclaim, but this would need to be against his limited company rather than him personally.

[2222]

The counterclaim, you could file this as a new claim against the company. No hurry.

You should ask the builder for proof that the company has assigned the claim to him personally or other explanation why he has brought the claim personally.

the big question is whether the soak away is actually defective. He says he has tested it and it works correctly. That is evidence. Before you get into a legal fight you could lose, you would be well advised to get an independent expert to test the soak away.

The big question is whether it routinely floods in normal usage and who specified it?

I see you say it overflows, does that happen a lot?

[2222]

By the way do you really mean a counterclaim?

[Chickenbrick]

Sorry if this is a bit all over the place.

As I intend to defend the claim, there is the counterclaim section 4. Could/should I use this to claim back the money required to rectify the issue?

I have also written a letter asking him to resolve withing 14 days and when this was not resolved followed up with another letter advising that I would ask another tradesman to rectify and I would forward the remaining monies. The court claim was submitted before the 14 day period had expired and I am now in the process of obtaining quotes for the rectification work.

I'm confident I can prove the soak away is defective as standards are defined very well by documentation. It has overflowed numerous times since installation and I have demonstrated my concerns to the builders foreman who verbally agreed there was a problem. Very happy for any further testing to be completed if requested as the results are consistent and repeatable.

Also he has not followed the specification which was given to him for the build, which required percolation test and soak away sized accordingly. Instead he has just spoken to the building inspector who said we normally install this size, which does not work for my ground conditions.

It's the legal part that I am unsure about as I have never been in this position before.

I have sent another letter asking for detail concerning his testing and the allegation that I have 'forced flooded and vandalised' but have so far received no reply.

[Chickenbrick]

1. The Defendant received the claim FXXXXXXC from the Northampton County Court Business Centre on 01/02/2019

2. In this Defence:
(a) except as expressly admitted, the Defendant requires the Claimant to prove its claims; and
(b) entirely without prejudice to that requirement and except as expressly admitted, the Defendant denies each and every allegation in the Particulars of Claim.

3. By way of general comment, the Defendant believes the Claimant has failed to comply with the Practice Direction for Pre-Action Conduct and Protocols insofar as the Claimant did not issue a letter before claim prior to the commencement of these proceedings. The Defendant has therefore been deprived of any opportunity to address the Claimant's allegations without the need for legal proceedings.

4. Further, the Claimant has not pleaded his case in accordance with CPR 16.4 (1) (a), in that there is not a concise statement of the facts on which the Claimant seeks to rely. The claim is inadequately drafted, however the Defendant will respond to the best of his ability.

5. By way of background, the Claimant is a director of XXXXXX Limited (the "Company") which was engaged by the Defendant to build a single storey extension and provided with drawings and specifications.

6. The Defendant believes the Claimant has issued the claim incorrectly, the agreement was between the Defendant and the Company, not the Claimant in person.

### The remaining defence has been removed, will be added again later if required ###

[jaguarsuk]

You have two options:

1. You can contact the claimant to inform him that he has claimed under the wrong name and that you consent at his cost to him making an application to amend the name of the claimant. If he does, this would allow you to file a Defence and Counterclaim then proceed with this matter and you should ask him to include in his application for the court to issue an directions order of a new date to file your defence once they have dealt with his application. Finally inform him in the letter that unless he makes the application by (date 7 days before your defence deadline) you intend to apply to strike out his claim without further reference to him and will seek costs of an occasioned in doing such.

2. Make an application to the court to strike out the claim on the grounds that the wrong claimant has filed and you have no contract with the claimant. He'll probably file a new claim in that instance under the correct claimant name.

You cannot launch a counterclaim against him on this claim as an individual for the same reason he is the wrong claimant, so that is a none starter.

FYI option 1 is likely to be the more expensive option to him and saving your defence until the correct claimant brings proceedings against you will preserve your element of surprise regards your arguments. 7 days before your defence deadline contact the court and find out if an application has been lodged and a bar put in place, if not file form N244 to apply to strike out the claim and for £255 costs of the application.

[Chickenbrick]

Many thanks for your reply,

How strict is the 7 day defence deadline for option 1?

The court claim is dated 29/01/2019 so I believe I have until 03/03/2019 to submit my defence as I have filed an acknowledgement of service, but this is now only 4 days away.

If I have missed option 1, should I file form N244 or file my defence as the following?

1. By way of background, the Claimant is a director of XXXXXX Limited (the "Company") which was engaged by the Defendant to build a single storey extension

2. The Defendant believes the Claimant has issued the claim incorrectly, the agreement was between the Defendant and the Company, not the Claimant in person.

3. The Defendant respectfully requests the court strike out the claim as the Defendant has no contract with the Claimant.

[jaguarsuk]

Many thanks for your reply,

How strict is the 7 day defence deadline for option 1?

The court claim is dated 29/01/2019 so I believe I have until 03/03/2019 to submit my defence as I have filed an acknowledgement of service, but this is now only 4 days away.

You need to submit a defence then and that defence should simply be that you have not contracted with Mr X, you owe Mr X nothing and the claim should be dismissed or else the defendant file a Notice of discontinuance.

I assume that you have a contract or quote between you and the Limited company you intend to use to prove you contracted with them and not him as an individual?

[Chickenbrick]

Looks like I edited my previous post while you where typing your reply.

Yes, I have a signed agreement with the limited company.

Just checking did you mean the claimant file a notice of discontinuation?

[jaguarsuk]

1. The Defendant received the claim [Claim Number] from the [Name of Court – Town County Court, Northampton County Court Business Centre or County Court Money Claims Centre Salford] on [Date you received the claim].

2. Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

3. The Claimant has issued the claim incorrectly, the Defendant has never entered into a contract with the Claimant in person.

4. By way of background, the Claimant is a director of XXXXXX Limited which was engaged by the Defendant to build a single storey extension on [Date].

5. The Defendant respectfully requests the Claimant file a Notice of discontinuance or else the Claim should stand struck out.

6. In the event that the Claimant applies to the court and is granted amendment of the parties of the claim, the Defendant will then be in a position to amend his defence, and would ask that the Claimant bear the costs of the amendment.

7. Under Civil Procedure Rule 16.5 (4) “Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation.” Therefore, it is expected that the Claimant be required to prove the allegation that the money is owed as claimed.

8. It is denied that the Claimant is entitled to the relief as claimed or at all.

Statement of Truth

The Defendant believes that the facts stated in this Defence are true.

Signed ________________________________
Dated ________________________________

Here's the defence.

Once he either files a NoD, applies to change the name or even continues on ignoring the defence come back to let me know.

If he files a NoD then we'll await him filing a claim properly then work through your defence and counterclaim .

If he applies to change we'll get started on your defence and counterclaim.

If he belligerently carries on we'll go through how you will apply to strike out the claim, it'll cost £255 to apply and is recoverable by way of a costs order against him.

That's just a heads up though, for now you just need to file your defence.

[Chickenbrick]

Wow, thanks again...

[Chickenbrick]

Defence filed yesterday and it appears a DQ has been posted today.

After reading the library guidance, guessing this is just an automatic step for the court to gather information and I should agree to mediation even though if the claim continues I will apply to strike out the claim.

[jaguarsuk]

They’ll send the Claimant your defence and his DQ first with an option to continue.

If he decides to continue then you’ll get a DQ with an order detailing the date to return it by. At that point you make your application to strike out the claim.

The defence is written to basically tell him his error and the two ways he can go about resolving it, if he’s stupid enough to press ahead regardless then you simply move to ensure you defend your position.

[Chickenbrick]

MCOL shows under my claim status

Your defence was submitted on 27/02/2019 at 12:22:08
Your defence was received on 27/02/2019 at 14:02:26
DQ sent to you on 28/02/2019

So does this mean he has chosen to continue?

As a side note my wife has also received a claim form with the same claim reference, so we are both defendants. I'm presuming everything that has been discussed so far can apply to both of us?