Can anyone advise which pre-action protocol applies?

[SkiGal]

I am busy drafting my defence and counterclaim to a MCOL made by my "ex" builder's solicitor. The sum involved including costs is just under £1.8k (the balance of my offer to settle). As the claim relates to an outstanding sum for building work, which pre-action protocol applies - for construction and engineering disputes or for debt claims?

The letter before action that I was sent was not titled as such and gave no date to respond by (even though I did respond in good time by recorded mail). There was no breakdown included and the additional information that I requested in my reply in relation to fees and interest has not been responded to. All requests for meetings to discuss the situation have been refused and my suggestions for ADR through FMB or mediation have either been refused or ignored.

I have in mind to make a general comment in my defence with regards to pre-action protocol but I don't want to use the incorrect protocol as my reference point and make things worse for myself.

To give a small bit of background to the case, the builder walked off site when I asked to meet with him to discuss spiralling costs, ever extending timescales, errors and defects before settling the latest invoice. All previous weekly invoices had been settled within 7 days. At the time of his departure, the work was incomplete, defects had not been rectified and building control sign off had not been achieved. Goods and tools paid for in full were either not delivered, were incorrect or removed from the property. I had to arrange for specialist trades to complete certain works at extra cost to myself as he couldn’t get the trades arranged. He has had already been paid the full price of the estimated works + nearly 50% more and I am out of pocket to the tune of several thousands. It has been a nightmare situation that I have tried everything I can to settle out of court and just move on but over a year down the line the situation has reached the stage of a MCOL.

Any advice anyone can give with regards to the correct protocol would be much appreciated. I am not planning on making a big thing about adherence in my defence but do want to make a general comment so that I can expand upon it once the matter comes to hearing.

[Partypooper]

Hi Skigal

This is a debt claim.

You would be right not to make a big issue out of the LBA because the court's management powers afford it the option of rectifying a matter where procedure has not been strictly followed. I don't see what you seek to achieve?

You would be better focusing on your attempts to mediate. As you are probably aware, proceedings should be the final option and the courts are very keen for parties to settle disputes without the need to issue proceedings.

You (and the Claimant) will of course be offered mediation before a hearing takes place. Hopefully you will be able to come to an agreement at that point.

I am a little confused. If you offered to settle at £1.8k, why did the builder not accept? Also, why did you not pay what they were asking when it is (albeit slightly) under what you offered?



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[SkiGal]

Hi Partypooper

Many thanks for taking the time to reply and for providing the clarification and advice. It has helped me to focus my response.

Upon reflection, you are absolutely right. If there are failings in the documents sent on behalf of the Claimant in the pre-court arena, the Court will see this when they review the documents and can take action as they see fit.

To clarify my original posting, the sum being claimed is the balance after I made additional payments to the builder in line with my offer to settle. The reason why I didn't pay the remaining sum to him was that he had retained and refused to deliver goods that I had paid for in full that had greater invoice values than the sum remaining and, if he decided to sell these goods, he would have easily been able to collect the remaining sum and bring the outstanding balance to nil.

As to why he has not accepted the offer, you are as confused as me but I guess it will all come out in the Courts mediation process if he agrees to use it - so far all my requests to meet or mediate have been refused.

Once again thanks for your help.