Looking for some clarity if possible!

[mabeybaby]

Good evening All

I am hoping to get some specific clarification for a legal matter and would appreciate some replies for which i thank you in advance!

I am the claimant in a small claims case relating to a construction case. There are a couple of specific points that are key to the case.

Firstly - during the build process, the defendant knowingly prevented us from being able to complete the works. To clarify, we were building a unit with a kitchen but the defendant had agreed to hire a plumber to do the pipework - the plumber did not arrive on site at all during the entire time we were there - so the knock on effect was that the kitchen could not be finished. There are several other similar things all relating to the same thing. Therefore we were prevented from completing. We left site asking the defendant to let us know once the plumber & other trades had done their work and then we would come back to finish - the defendant didnt contact us.

We left it for a couple of weeks and then tried to contact the defendant. He would not pick up the phone or respond to any correspondence for several weeks.

Eventually, after 4 weeks, he sent a very aggressive email detailing mostly that he wasnt paying because we hadnt finished. Obviously we were aware we hadn't finished but were totally prepared to go back.
He suggested that he could finish the work as it would be quicker so we agreed (as this was easier) and deducted some money from the bill - we asked him to confirm he was happy with this arrangement but again he didnt reply. More importantly he still didnt pay.

After many weeks and us going through the correct pre-action protocol, we issued a claim for the outstanding bill. The defendant had still not replied to anything we sent.

Finally at the deadline for replying to the court action, the defendant put in a defence and counterclaim which was completely unbelievable!

His defence was mostly the fact we hadn't finished......

BUT more aggravating was the counterclaim - which consisted of a whole range of other items that he is claiming were wrong - none of which he has ever told us about. He has made a whole list of things which we believe to be invented, but further to this, he goes onto say he has already got other contractors to fix them! So we have been prevented from completing the work in the first place and then we have been told there's a load of other things wrong but they've already been fixed by others without us being told anything.....

In light of all of the above, we have completed an N244 requesting that the defence is struck out for being unfair and unreasonable on many levels - and i would like to understand where you feel we stand with this - its giving me sleepless nights!

[atticus]

On what you say, I doubt the defence and counterclaim will be struck out. If so, the case will have to go to trial, unless there is a settlement.

Is this case connected to your other thread?

[mabeybaby]

On what you say, I doubt the defence and counterclaim will be struck out. If so, the case will have to go to trial, unless there is a settlement.

Is this case connected to your other thread?

Yes it is - we believe the defendant will be giving another opportunity to submit another counterclaim despite it being struck out.

Is there a reason why you doubt it could be struck out? I cannot understand how it could be deemed fair or reasonable to essentially keep things a secret to then use them in a defence or counterclaim but say they've already been fixed ...... that situation doesn't give us the opportunity to fix anything or an expert witness to view the work to even ascertain what was originally there as it doesn't exist any longer..... ? Are you able to clarify?

[atticus]

You may be right, but judges like to hear the full evidence on both sides, and will not easily end a party's case otherwise.

Remember that the Court's overriding objective is to deal with cases justly.

[mabeybaby]

You may be right, but judges like to hear the full evidence on both sides, and will not easily end a party's case otherwise.

Remember that the Court's overriding objective is to deal with cases justly.

Thank you - yes i understand that. The next step is a directions hearing where the N244 will be discussed.

In terms of evidence, the defendant has made lots of claims but not supplied any evidence whatsoever. He states he has photos but then not provided them to the court or to us. We feel that his behaviour is not what anyone would deem to be "just" behaviour. When someone acts deviantly, secretively and very unfairly, it is a huge cause for concern and we want to do all we can to ensure the judge is aware of his behaviour.

[atticus]

But these things, including the alleged deviancy, are all things that the judge will probably need to hear evidence on before deciding the case. This is how the court system works: both sides should be heard. I suggest that you concentrate on proving your case with a view to persuading the judge that he should agree with your view.

[Pezza54]

Make sure you file and serve your Reply to Defence and Defence to Counterclaim by the deadline. Failure to do so may result in the defendant requesting judgement in default for the counterclaim

[MaryS57]

Apologies for butting in - but we have a "construction" case in the small claims court at the moment - albeit a caravan construction case - but there are analogies.

We had a preliminary hearing and the District Judge readily accepted that expert evidence was needed.

Since OP's concern is that the remedial work has been "done" - the court has powers to order the Defendant to furnish the expert with the photographic evidence/invoices that the Defendant claims to hold.

The expert can then view the current situation and check this against the validity or appropriateness of the Defendant's photographs and invoices - alongside the Claimant's contemporaneous correspondence asking for the Defendant to get in touch (which the Claimant provides the expert with when writing their report)

Maybe something along these lines may assist (but i may be wrong of course).

[Pezza54]

No apologies necessary- you're not butting in - it's a forum and users experience of the topic and advice is always welcome

Consumer law dictates that the service provider should be given a chance by the consumer to put right defects at no extra cost and within a reasonable time. Consumer Rights Act 2015 Section 55 (1) and (2)

OP's case may hinge on the above. The judge will want to see evidence from both parties about this, read witness statements and probably ask questions about conversations that took place between the claimant and defendant

OP should make notes of dates and times phone or face-to-face conversations took place and what was said. Not everyone confirms a conversation in an email. Proof of the call being made can be obtained by obtaining call records from the service provider if necessary

[Pezza54]

Another crucial matter is the delay and unfinished work caused by the non appearance of the plumber
At what stage did you agree to the customer arranging for his own plumber to carry out plumbing in the sink and whose suggestion was this?
Did you warn the customer that if the plumber didn't attend when their work was required a delay could be caused?
Who communicated with the plumber to let him know when he was required and was he given adequate notice?

[mabeybaby]

Make sure you file and serve your Reply to Defence and Defence to Counterclaim by the deadline. Failure to do so may result in the defendant requesting judgement in default for the counterclaim

Thank you for the reminder - but this is a strange case in terms of timelines. The defence and original counterclaim were filed back in July last year. Then the defendant failed to pay the fee for the counterclaim part, so it was struck out and became a defended case only. We replied to the defence with our N180 Directions questionaire. It is only now that the case has been moved from MCOL to the local court house, the counterclaim strike out appears to have gone missing! The judge has asked for any documents relating to it (which we have supplied) but in the same order has said that the defendant can submit another counterclaim as long as it is at least 14 days before the directions hearing. So as it stand now we have not had an opportunity to reply to the counterclaim..... Not sure what options we have?

[mabeybaby]

Another crucial matter is the delay and unfinished work caused by the non appearance of the plumber
At what stage did you agree to the customer arranging for his own plumber to carry out plumbing in the sink and whose suggestion was this?
Did you warn the customer that if the plumber didn't attend when their work was required a delay could be caused?
Who communicated with the plumber to let him know when he was required and was he given adequate notice?

This was an agreement from the outset that the defendant would arrange the plumber and the electrician. Because the units we build are moveable then pipework can be problematic so we never do plumbing on them. The defendant agreed from the outset that he would arrange this.
The defendant had the sole responsibility to speak with the plumber - we were never given any details of who the plumber was and so could not contact him ourselves.
We chased the defendant weekly about when the plumber would be on site and were told "he'll be here soon" each time. We advised the defendant that we could not finish the kitchen without the plumbing work being done and he understood completely. This is why we feel he did this deliberately in order to cause a problem although we can't prove that. The majority of conversations regarding the plumber were verbal but he has stated in his defence that he agreed to engage the plumber so we have it in writing.

[mabeybaby]

Apologies for butting in - but we have a "construction" case in the small claims court at the moment - albeit a caravan construction case - but there are analogies.

We had a preliminary hearing and the District Judge readily accepted that expert evidence was needed.

Since OP's concern is that the remedial work has been "done" - the court has powers to order the Defendant to furnish the expert with the photographic evidence/invoices that the Defendant claims to hold.

The expert can then view the current situation and check this against the validity or appropriateness of the Defendant's photographs and invoices - alongside the Claimant's contemporaneous correspondence asking for the Defendant to get in touch (which the Claimant provides the expert with when writing their report)

Maybe something along these lines may assist (but i may be wrong of course).

Thank you for taking the time to respond - i really appreciate it. My concerns mainly revolve around the fact that the defendant wants to take 3 or 4 so called expert witnesses into court with him. However the people he is referring to are all either people who work for him or the contractors he paid to do the works back last summer. None of them are actual "expert witnesses" and will be completely biased towards the defendant because he is one employing them and paying them.
Will the judge allow these types of people to contribute in the proceedings? My understanding is that any true expert witness must be impartial and work for the courts best interest. I have also read that an expert witness must be able to verify the things he is reporting on? The defendant is saying he has a series of historical photos that he is relying on and wants the expert witnesses to write their reports based on the photos which they are also not able to verify in reality because the work is no longer there?

[mabeybaby]

No apologies necessary- you're not butting in - it's a forum and users experience of the topic and advice is always welcome

Consumer law dictates that the service provider should be given a chance by the consumer to put right defects at no extra cost and within a reasonable time. Consumer Rights Act 2015 Section 55 (1) and (2)

OP's case may hinge on the above. The judge will want to see evidence from both parties about this, read witness statements and probably ask questions about conversations that took place between the claimant and defendant

OP should make notes of dates and times phone or face-to-face conversations took place and what was said. Not everyone confirms a conversation in an email. Proof of the call being made can be obtained by obtaining call records from the service provider if necessary

My understanding regarding the Consumer rights act 2015 is that is doesn't apply to business to business contracts - is that correct? If so is there an equivalent law?
The correct protocol for stopping a contractor returning to site should be to advise the contractor in writing that you do not wish them to return, giving the reasons why, and to allow them to collect any tools or materials from site and take photos of how it was left in case of repercussions. Clearly this did not happen at all but i dont know if there is a law that says something like this or whether this is like an unwritten best practise situation?
How would a judge view that?

[Pezza54]

The judge should give you the opportunity to reply to the counterclaim, but the time may be limited to 2 weeks

In your thread you stated that the customer suggested that he could arrange for another contractor to complete the work and you agreed. At that point there was no agreement to how much of your quote you should be paid for the work you had carried out.

The customer is arguing that the builder employed to complete the work found defects in your work that required rectifying? The customer is stating that the cost of correcting defective work should be deducted from the contract value of work you had carried out? You are claiming you weren't given the opportunity to inspect the defects and make good so the customer is not entitled to deduct any money

In short the dispute is over the value of the work you completed using quoted/contract prices and whether the customer is entitled to make a reasonable price reduction for making good defective work