Breach of Contract options

[LegallyNaive]

I have a written contract with my seller which basically says everything in this area is included in the sale. Copious photographs were taken before finalising the sale but now I find several item are missing. I sent a letter about the missing items to the seller but was ignored and my phone black listed.




So I sent a letter of claim to the defendant that he responded but twisted the facts so much that it is unbelievable that we are both talking about the same event.




The total cost of the missing items is less than £10,000 but some items are unusual and difficult to quantify.




The seller in his reply to my letter of claim admits that they are in his possession.




My initial question is; should I go for specific performance or just seek damages. What are the advantages/disadvantage of either course of action.




Any input is welcome

[echat11]

Celestine Please can you take a look and advise, many thanks.

[Celestine]

I'm going to need some context here! What are we talking? House sale, Business sale, other items?
What kind of items are missing? In any case their value amounts to under 10k, so you can quantify their value a issue a moneyclaim for that amount unless you especially want/need these items, in which case you would ask for specific performance to return the items. Very different processes for each, so once we've gripped the key facts we can consider how to go about the legal action.

[LegallyNaive]

Thanks Celestine for responding, I will try to flesh out my problem.




The items in question are various garden ornaments and the their valuation is base on an estimate to make fibreglass copies of them. They are a prominent feature in the garden and their unusual size and shape initially attracted us to the property. We want to go for specific performance to get the items returned.




The contract is for property and the ornaments are included on the fittings and content form as being included in the sale.




The sellers have not responded to letters requesting the return of the items or to my sugestion for ADR so I sent a DIY Letter Before Action. Their reply was most unheplful.




That in a nutshell is the cuurent state of play

[Celestine]

I've done a little research and these matters are usually resolved through Small Claims Court. Rather than complicating your claim with SP, I would send them the standard pre-action letter demanding the return of the garden ornaments. (enclose a copy of the Fixture and Fittings list) or if that is not practical, payment to the value of £X within 14 days or you shall initiate court action without further notice to them.
This should focus their attention that the matter is escalating and if it is possible to return the ornaments, the threat of court may work.

[LegallyNaive]

Had this response from the other party. It starts:




Our interaction with you has been odious and unpleasant from start to finish. Your behaviour in purchasing our previous home can only be described as deplorable and disgraceful.

You may have not have noticed; the world is in a bad place, killer pandemic, horrific implications of climate change and you are not getting any younger. We appreciate being retired with nothing to do, leaves you plenty of time to agitate and cogitate on irrelevant matters.

However, if it will make you disappear from our lives, without any further communication whatsoever, ( save as below) we will let you have 3 x plastic flower pots, the ones you seem so very fixated about.

And finishes:

A simple email with a ‘yes please’ will suffice. If you do not stop this irritating tirade we will go to court if necessary and let a judge decide if your ridiculous behaviour over pots valued at about £100 in total , is really worthwhile.

I was flabbergasted when I received this.




PSs each pot have been valued as 10 times the figure quoted above

[Celestine]

Crikey, this is turning into quite a bizarre dispute. What a very weird email to send.
do you have a photo of the pots you can upload, purely so I can assess their individuality and difficulty to replace. (Before law I worked in landscape design) I shall remove the photos straight after I view them if preferred.
Dont respond to that email yet. Let’s have a ponder on best approach. How can they ‘go to court’ or do they mean respond to your claim perhaps.

[LegallyNaive]

Planters like this. Size about 800 X 800 oval shaped

[echat11]

They certainly aren't 'Ming Dynasty 1368 to 1644 A.D' just from a cursory glance, but what do I know.

[Celestine]

Thanks for uploading. these planters are made of a composite plastic material, not concrete?
They would be hard to replace as identical items, I've not personally seen that shape/dimension before BUT I do think you will come unstuck with the Judge on the feasibility of replacement with something similar - The need to have new pots moulded to be identical might not be supported.
Three very large composite pots of a reasonably similar size could be purchased and painted for around £300. The plants within the pots, if similar to the Pieris in the picture would again be around £60 each. Absolute maximum total claim of around £500. Getting the pots made out of fibre glass to be identical may be seen as unnecessary and any claim far higher than that may fail. Their assertion about their worth being under £100 is probably reflecting the fact that they did not themselves pay much for the pots originally. I do agree strongly that 3 800mm high pots are a focal point in your new garden and their removal was distressing and disappointing to you.
I understand the frustration that they have breached the contract by removing the items, the law offers no 'punishment' for their meaness, just a route to either getting the pots back or quantifying their value.
If I were you, even though their email is rude and bizarre, I would accept their written offer to return the pots to you as soon as possible. This would then fulfill the contract. In fact refusing their offer is not an option, because if you did refuse and then sued them, you would be on very unsteady ground.

[LegallyNaive]

This is becoming increasingly farcical

Since sending the letter of claim in late September I have been trying to engage the dependents in accordance with the pre-trial protocol as defined in the CPR i.e. suggesting ADR and making offers as a basis for negotiation by sending polite, businesslike and factual emails.
In return I received the vile email mentioned in my previous post and the latest cryptic email from the one defendant shown below:

Read it yourself, front patio set. Left for you.

Will not tolerate any further harassment from you, my husband is now seriously ill, totally as a result of your harassment.

Will see this matter through in court.

Any further communication ONLY from your solicitor.


Yesterday, much to my surprise, I received the following from a firm of solicitor (synopsis below)

Letter before Claim as regards Protection from Harassment Act 1997
We confirm we are instructed by our aforementioned clients. Kindly note our interest and correspond
directly with us at our central correspondence address.
Our clients have instructed us that you have committed various acts which amount to harassment and
therefore, under the relevant law, being the Protection from Harassment Act 1997 (‘PHA’) gives our
clients civil and criminal causes of action against you. There are also other matters which our client has
concerns about which we will deal with this in letter.
This is a letter before action written in compliance with the pre-action protocol for media and
communication claims. A copy of which can be found here https://www.gov.uk/guidance/pre-action-
protocol-for-media-and-communication-claims.
….............

Since the beginning of October 2021 you have sent no less than 5 aggressive emails to our clients
which are/were unwanted and distressing,

…...................
We also set out below the relevant law concerning harassment:
S.1(1A) of the Protection from Harassment Act 1998 (‘the PHA’) provides that:
“(1A) A person must not pursue a course of conduct —
(a) which involves harassment of two or more persons, and
(b) which he knows or ought to know involves harassment of those persons, and
(c) by which he intends to persuade any person (whether or not one of those mentioned above)—
(i) not to do something that he is entitled or required to do, or
(ii) to do something that he is not under any obligation to do.

…...............

S.3A of the PHA further provides:
(1) This section applies where there is an actual or apprehended breach of section 1(1A) by any person (“the relevant person ”).
…..................

(b)contacting, or attempting to contact, a person by any means,

…................

Our clients are entitled under section 3A of the PHA to seek a civil injunction against you to prevent this harassing behaviour …...... Whilst this is a civil injunction, we will consider asking the
Court to attach a penal notice to the same, which means, in short, should you breach the injunction then
the Court can impose further sanctions (including potentially a prison sentence) for serious breaches of
the same.

To prevent this matter from escalating, our clients require the following confirmations from you in
writing:
1. Your undertaking not to contact our clients again directly by any means or by any medium.
a.
The above shall apply equally to our client’s jointly and separately.
In addition, our clients also seek your written confirmation that you have not opened any personal and/or
private correspondence addressed to both/either of them.
We look forward to your response to the above, and compliance with point 1 and 1a above, within 14
days from the date of this letter.
If you do not comply, then our clients’ rights in this regard to bring proceedings against you without
further notice to you are fully. If any such proceedings become necessary our clients will seek not only the relief specified herein, but also available costs and damages from you accordingly

I think I would have a stronger case for harassment then the defendants

If I agreed their their demand would I, as a Litigant in Person, be able to cross-examine the defendants in court?

[islandgirl]

Its all getting a wee bit out of hand...

[echat11]

If they have left the front patio set, 'front patio set. Left for you.', doesn't that bring the matter to an end?

We haven't seen your emails to them, but even if they weren't threatening, because of their circumstances, they may perceive them as threatening, being elderly, health etc.

[LegallyNaive]

That's the strange thing the patio set was excluded from the sale and had been removed before Completion. Now almost 18 months later they make this first reference to the patio set.

Comparared to us they are spring chickens. They have started and run several busines and have recently started a new venture so I do not believe receiving polite factual and businesslike emails having such an impact. Not like the vile email they sent to us as mentioned ina previous post

[ostell]

Now that they have employed a solicitor you point out to the solicitor the LBC you sent to their client and were merely trying to come to an agreement, as expected by the courts. If their client is not willing to enter into negotiation then you will let the matter proceed to court.