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Application Hearings - preparation, evidence questions

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  • #31
    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.

    *

    Comment


    • #32
      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. *



      *
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      Comment


      • #33
        Originally posted by Amethyst View Post
        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".




        *

        Comment


        • #34
          Originally posted by Amethyst View Post
          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.

          *

          Comment

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