Frustration of Contract - surprise Money Claim

[FireWyrm]

Hello All



Claim Made : Yes (we are defendants)

Total Amount : 7000+ all items on an invoice plus interest, plus costs



I really need some help and advice on how to navigate a claim that I have received from a Roofing Contractor (aka Roofer from now on) because I am very much in the dark now. I have just found this forum and regret I did not know about it earlier.

1. Last year we asked for quotes from a Roofer (June) to re-roof the house. A quote was accepted and an initial payment of £3000 was paid for materials to begin and as a deposit. The person who accepted this quote was my husband.
2. Last year my house was completely destroyed by fire (July)
3. At the time of the fire, the Roofer was engaged in re-roofing the house. The work that had been completed was some felt and batons to both sides and partial tiling of the front (not the back). Total 10 days between scaffolding erection and fire.
4. The Roofer was advised on the day of the fire that the house was destroyed and therefore work could not continue
5. The Roofer demanded full payment of the invoice (no terms and conditions - just a bit of paper). Items on that invoice after the tiles/scaffold etc were not supplied and I have photos of drains and downpipes etc still in situ. The upshot was, the final items on the invoice were never supplied
6. The Roofer was advised to remove his scaffolding so that work could commence by my insurer
7. The Roofer refused and demanded full settlement stating that he "could not remove the scaffolding until we paid him and he paid the scaffolder".
8. I rang the Owner of the scaffolding and was told that the Roofer owned the scaffolding and therefore they could not remove it themselves. The Roofer claims that the Owner of the equipment still owns it and he cant remove it.
9. The insurer confused the situation by initially suggesting that they might "borrow" the scaffolding for damage inspection and offered to pay the Roofer from the day of the fire until Sept (64 days). This offer was never taken up by the Roofer and remains outstanding with the Insurer to this day.
10. The Insurer told Us that the issue with the Roofer and his payment was our problem and not theirs - they could not intervene and restoration could not commence until the old scaffolding was removed and Insurance backed scaffolding put in its place.
11. The Roofer sent me an email demanding payment and saying it was a "frustration of contract".
12. I went to a solicitor for advice and she agreed with the Roofer that it was a "frustration of contract".
13. The Solicitor sent the Roofer a letter explaining this and asking him to provide evidence of loss so that we could assess what money was owing if any and to have the scaffolding removed immediately so restoration works could begin. He was asked to explain where the initial £3000 had gone (Sept).
14. The Roofer refused and sent back demands for full settlement with no further information as to where the £3000 was or his actual losses. He attempted to claim money for a lost ladder (I have a photo of it on the roof after the fire) and scaffolding "rental" as well as "interest" at 24% p/a
15. The Solicitor sent a second strongly worded letter (Oct) re-stating the facts and demanding the scaffolding was removed under threat of High Court Injunction. Within this final letter was an Open offer which states that effectively we all walk away and be done with it. The solicitor stated that the items on the invoice were not supplied
16. Scaffolding was finally removed 1 hour before deadline in October but they were not gentle about it and waste was thrown into the house and garden slabs purposely smashed. We heard nothing more and chalked this all up to a bad experience and went on with our lives.
17. In May this year, we received a Money Claim from the Roofer addressed to my husband as the only defendant at our former destroyed home. The initial submission was mostly bluster with little fact and a few lies. There was no warning. The submission contends that the Roofer believes he is entitled to full settlement of his invoice - every item - that's it.
18. I drafted a defence as best I could because my Husband did not feel confident to do this. I had no idea there was a specific format. All the way through, from the initial deposit paid, the telephone conversations, the letters from the solicitors and emails, I have been the one dealing with this situation. My husband has had nothing to do with it really. My husband has no income, no assets and is not proprietor of the house. The solicitors letters all name me as the proprietor of the house. In fact, I have control over all the money, am the owner of the house and all assets are in my name as the only source of income to the household.

So, my questions are :

1. My defence was filed on time, but does not follow the layouts of the examples I have seen on here. Have I blown it? I used the gateway website as instructed and logged in as me with my name and address
2. How do I get the court to understand that the Claimant is suing the wrong person and even if we lost, he could not pay a CCJ? Also, if we got a CCJ, it would be ME paying it off, not my husband.
3. Is it worth making a thing of the fact that there was no warning of the court case?
4. I wrote the defence and submitted it and my husband read it and agreed with it. He doesn’t feel happy arguing in court. Is there any way I can do this for him?
5. I have emails which I wish to send to the court between the Roofer and my Solicitor. Are these privileged?
6. The Roofer at first indicated agreement to mediation, but then backed out on the day costing me time away from work. What happens here?
7. I want to recover all costs now including my Solicitors letters as he has cost me thousands all told so far not to mention destruction of property and holding up the restoration of my home.
8. We have tried to be reasonable but this is now causing me sleepless nights. How far can he go?

We are now at the point where I have to submit evidence to the court and a witness statement. There is no guidance as to what this means exactly and I am terrified of making another mistake and losing by default. How do we proceed?



Many thanks in advance for any advice

[atticus]

This guy did work for you, was not responsible for the fire, and you have not paid him? Have I got that right?

Q1. I doubt it.
Q2. By explaining the facts. If the wrong person has been sued, that defendant may have a complete defence.
Q3. only if the defence succeeds.
Q4. You may ask the judge to permit you to speak.
Q5. Not privileged, unless marked "without prejudice".
Q6. The case goes to court.
Q7. Which track is this? If Small Claims, you will get limited costs back if successful.
Q8. All the way to a full hearing, and if he wins, to enforcement.

Witness statements: the net is full of guidance. Start here: https://legalbeagles.info/forums/for...ess-statement/

More detail in this handbook by the judiciary - see chapter 11: https://www.judiciary.uk/wp-content/..._in_Person.pdf

[FireWyrm]

This guy did work for you, was not responsible for the fire, and you have not paid him? Have I got that right?

He was working on the roof at the time of the fire which was covered by Insurance is accidental (ie, not arson). The fire stopped work before he could complete the entirety of the items on the invoice. The Roofer is now demanding full payment of all items on the invoice regardless of whether they were delivered.

Meanwhile, he received £3000 up front.

This is allocated to the "small claims track". I have to provide witness statements and evidence by 1st August.

[atticus]

Ah OK, so he is claiming payment for more than he did. Your first post gave me a different impression.

Have you paid or offered to pay for what was done including labour and materials? Is that much overed by your insurance?

[FireWyrm]

Ah OK, so he is claiming payment for more than he did. Your first post gave me a different impression.

Have you paid or offered to pay for what was done including labour and materials? Is that much overed by your insurance?

An Open Offer was submitted by the Solicitor back in October (along with a demand to remove the scaffolding) which essentially stated that we should all walk away unless he could provide specific evidence (receipts, invoices etc) of his actual losses prior to the fire. He refused to provide any evidence at all and simply re-iterated that the entire original invoice should be satisfied or he would not remove the scaffolding. He was finally threatened with a High Court Injunction to remove the scaffolding and he did so in October. He clearly understood that the Insurance could not begin work until they erected their own scaffolding but they did offer (upon production of an invoice) to pay for 64 days hire at a cost of £930. The insurance made it clear that this would only cover until Sept 19th. The scaffolding was not removed until October 14.

In the beginning I was prepared to pay the difference between £3000 and whatever his actual provable costs were - but he would not produce the information.

The insurance company have stated that this is none of their business and would not intervene. They denied his claim as irrelevant to them. He did not have appropriate insurance on his business either and claims he cannot "write off" the invoiced items even though they were never on the roof.

From what the solicitor wrote in her letters to him, he is only entitled to actual material loss, ie what was on the roof at the time of the fire but he continues to claim otherwise and now we are being taken to court.

[des8]

The Lay Representatives (Right of Audience) Order 1999 gives you the right to speak on behalf of your husband at the hearing as long as he is present

It isn't necessary for you to ask permission of the court, but it is wise to do so as the judge has a wide latitude in what happens.
So a letter in advance mentioning your intention and quoting the order is advisable

[atticus]

The insurance company have stated that this is none of their business and would not intervene.

Really? Surely you have lost whatever was done, and for which you may have to pay. Is that not a loss for which you are insured?

[FireWyrm]

Really? Surely you have lost whatever was done, and for which you may have to pay. Is that not a loss for which you are insured?

Not according to the insurance company. They are already replacing the roof (for obvious reasons) and restoring the house as expected. My loss is the £3000 paid to the roofer prior to the fire which was annoying, but life happens. Where we have come unstuck is that the Roofer refused to engage with my solicitor and explain what losses HE suffered exactly. The Roofer refused to remove the scaffolding until he was paid engaging in all sorts of obfuscation over who owned the equipment. The upshot was that he finally DID remove the scaffolding and we all thought that was the end of the matter. Now he's back with a court claim which I have to defend. Our focus was more on the removal of the scaffolding at the time since it was holding up the restoration - the insurance company (I am told) did contemplate legal action of their own at one point to get him to move it, but I managed to get it taken down in the meantime.

The Open Offer says he can keep the £3000 and that should be sufficient to cover his actual material losses unless he can prove otherwise with some sort of evidence. I have in my possession 148 new tiles that were NOT on the roof at the time and were stacked in the front garden. I removed them after the fire for safety as I did not know who owned them and they could have gone missing in the night. I was prepared to throw those in to sweeten the pot, but the Roofer just demanded all costs with zero negotiation. Even at the time of the mediation, I was prepared to offer these too, but he declined mediation at the point of the call. I think he has been hugely unreasonable and we have bent out of shape trying to be polite, but if he wont or cant show what was actually lost in the fire, I dont see how I can be expected to pay up.