Application Hearings - preparation, evidence questions

[DeMycroft]

This is about the Defendant's propositions to resolve.

They will surely use this situation to try and gain favour with the judge. I feel back to square one and on the losing side. While talking they said* my approach "hit a nerve" so I am fairly convinced they acted out of spite.

The question is, why do I have to accept their proposal to return on site after all this and still not cover the full remedial works. And why should they be allowed, it does not sound right and I have not heard of this before. Of course I wanted to fix the problem not just earn some cash which will be far less to my loss.

They did not appear to care about going to trial, obviously they have resources and know it costs me proportionately more.


In any case, if we agreed to anything it would make my future case worse, because the claim will lose substance while they still don't admit error as "goodwill".

Options:

• Mutually withdraw Claim and Counterclaim (have to understand process and how to do this right) and let it go with a loss of +2k on my end

*

• Accept their proposal to come out and also quote building work, see where costs stand against existing quote and decide if to carry out works but with contract of liabilities ? Still this makes it look like accepting they are not in "error"

*

• Sub-section of above - ask them to cover part of the making good 50/50 due to error - probably not going to work but could be see by judge as effort to resolve.

*

[Amethyst]

Hmmm. Tough to read the Judge there isn't it. It sounds like you handled everything well.*

So. Possibly the negotiation could result in a Consent order signed off by the court keeping the claim on hold whilst the agreed action is taken with consequences drawn in if anything should go awry *- that is IF you want the doors moving to the correct position as under the original contract. The consequential building work and making good costs will have to be negotiated on - be aware that the Judge may come down in their favour on that as you had a duty to mitigate your losses therefore allowing the work to proceed from the point you/the builders were aware the doors were in the wrong position could go against you. *Having the agreement written up as a consent order should protect against any shenanigans. Certainly it should include timescales. ( and an admission of liability for the original error )

I don't think you can read too much into his refusing to strike out the counterclaim - your application didn't ask for that so it would be looked at through your defence of the CC. You can include in your defence to strike out.*


Mutually withdrawing and both parties just walking away and bearing their own costs would be a 'drop hands' agreement. **

If you do decide to continue with the claim then it would certainly be worth you getting professional legal advice from a Solicitor and likely representation for the next hearing/s. It could well be worth discussing the position with your solicitor anyway now as they will have a better idea the way the judge may go if it went to full trial as things stand and be able to advise on potential terms of settlement by consent order. *



*

[DeMycroft]

be aware that the Judge may come down in their favour on that as you had a duty to mitigate your losses therefore allowing the work to proceed from the point you/the builders were aware the doors were in the wrong position could go against you. Having the agreement written up as a consent order should protect against any shenanigans. Certainly it should include timescales. ( and an admission of liability for the original error )

The problem is that we were not aware of the error until the floor went down and realised the door is lower after finishes were done. I have dated photos of the exterior finishes within a week after installation. This is metadata though. The problem is that we noticed the doors are wrong 1.5 months later and due to ongoing work with a kitchen delivery carrying delay penalties I had no time to measure the doors and call them out straight away. It took me another few weeks to establish which party made the error.

My case was set to prove the damage to put the doors right (as per the Defendant's remedial goodwill) affects the exterior render of the building
and this is what I asked them to pay apart from fitting the doors in the right place. Judging from today, they will never admit error so I am not sure this can go in as "admission of liability".




*

[DeMycroft]

If you do decide to continue with the claim then it would certainly be worth you getting professional legal advice from a Solicitor and likely representation for the next hearing/s. It could well be worth discussing the position with your solicitor anyway now as they will have a better idea the way the judge may go if it went to full trial as things stand and be able to advise on potential terms of settlement by consent order.

I agree about getting legal advice but representation would be really expensive for a small claims case and possibly no recovery in costs? It may be worth getting a solicitor to write/set terms for the court or advise how it should be done to avoid being open to further disputes.

The issue is that if I accept their return and pay for the damage they cause, it would almost be admitting they have no fault.

*

[DeMycroft]

Amethyst*

Hi again,

Over the last two weeks we engaged in communications via email with the compan, but everything I write comes under "without prejudice save as to costs".

They are desperately trying to use the communication to gain favour with the judge. Constantly suggesting we made you a proposal but you are the one refusing.

However, in reality there is nothing different or compromising for their side. They are fixed on the same position as 2 years ago, saying all the work is fine and they only offer goodwill to move the system down, but I have to pay the damage. They even have the cheek to propose bringing their builder to quote for a better price.

In reality I simply said* we will consider proposals,* I did not accept their offer in court, certainly not the same position that I filed the claim for! I am utterly fed up with these people and their low level communications after 2 years.


I told them this is a 2 way communication, the judge did not ask me to accept their proposal. Instead, I made two offer to the company,

1. This was proposed by a solicitor, I sent a settlement proposal under reduced sum of my costs/claim* i.e my breakdown costs to date and the claim, then offered £1,000 lower to settle and in return to sign a confidentiality agreement not to disclose the settlement in public if that addresses their concerns.

Part of their response: "The offer you have made us is that if we give you a load of money you will not talk to anyone. We are not sure where you are going with this".

2. I wrote that their position is logistically impossible, they do not accept any error or liability, we are in court for over a year and they now want to perform works after 2 years of disputing, while I pay the damages to a builder of their choice!

Essentially they are asking me to "invite" them to carry out work as if I request it, not because of any fault.*It would make my claim pointless.* I replied we completely lost trust in the company but if they so much want to entertain this concept, they would have to compromise on costs. I added that we will need to sign terms drawn in a Consent Order (as above) and signed by the court.

Again the response is* rubbish, rejecting financial settlement and just pushing that I agree to their only offer without any ties.



We had a long pre-action in 2018, I chased them up through their glazing association for*4 months with emails. They would simply not come out on site to measure. When they finally came out (after preparing excuses for months) they started measuring the floors, not their door system. They came up with the "goodwill" if I cover the damages, saying ther floor has discrepancies too.

In my last effort LBA 2018 I invited them to come forward with quotes from other professionals in the business and/or choose an independent surveyor to make a report. I asked they shader their evidence from the site visit and they sent nothing. They wrote "We completely disagree with your views and have been on site to explain" rejecting all proposals and saying their goodwill stands.



Aside of all technicalities e.g expert report, my understanding is that if the company had solid grounds we would not engage in such long dispute. They would present evidence before all the goodwill nonsense, asking a client to pay damages. I cannot see any home owner accepting such proposal as reasonable. My only concern is any possibility of a judge falling for this nonsense.

Last, I have a call recording with the company surveyor, he rang me on the day before we placed the order to say they are satisfied with everything and they plan to meet my new extended floors "flush". I made a transcript of this and sent it to them with my LBA. I don't intend to play in court (RIPA?) unless the judge asks.

We are back to square one...

[DeMycroft]

So. Possibly the negotiation could result in a Consent order signed off by the court keeping the claim on hold whilst the agreed action is taken with consequences drawn in if anything should go awry - that is IF you want the doors moving to the correct position as under the original contract...Having the agreement written up as a consent order should protect against any shenanigans. Certainly it should include timescales. ( and an admission of liability for the original error )

If you do decide to continue with the claim then it would certainly be worth you getting professional legal advice from a Solicitor and likely representation for the next hearing/s. It could well be worth discussing the position with your solicitor anyway now as they will have a better idea the way the judge may go if it went to full trial as things stand and be able to advise on potential terms of settlement by consent order.

Ok, so there is no "negotiation" with the company really.

It is now clear they just started this communication to impress the court or something.

They won't compromise on anything, I am being dragged into time wasting emails again. They aggressively push for the same position as pre-action, exactly what the claim was filed for.

I wanted to fix my door position so that I don't trip over them but just not with this company after disputing for 2 years.

They want to challenge my LBA remedial quotation after 2 years, saying their "self-quote" is cheaper. Well, the Claim was filed after they rejected all the LBA proposals and I have incurred costs and huge loss of time.

Settlement offers are classed as "threat" and they do not agree to sign terms in consent order or cover any part of remedial damage or accept any liability.

The worse part is they say in writing if you pull your claim we will pull our counterclaim, pretty much admission their CC is frivolous.

I just want to ensure my WPSAC response does not put me in disadvantage. Is there any point thinking about consent orders?

There is no chance we will agree on anything and they are wasting my time. I believe there isn't anything else to do, just wait for court directions for trial?