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Being pursued for cost of replacement fence

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  • #46
    Originally posted by gazfocus View Post

    In essence, I completely agree that a neighbour dispute over a few hundred pounds is somewhat silly, but when I simply don't have a few hundred pounds to give the neighbour, whether it's silly or not doesn't come into it. Additionally, I don't feel that I should set a precedent that I'll let the neighbour walk all over me.

    Regardless of the above, the neighbour dispute already exists now and is down to the neighbour and not myself. I have never said I will not contribute, just that I cannot afford to at present. If my neighbour wants to try and bully his neighbours for a few hundred pounds then he's a pretty sad individual (either that or some friend/family member has given him awful advice).
    Just for the record, I did not say that you were the silly one!


    Comment


    • #47
      Building on Amethyst's intial draft, see below. I have made some changes so it flows better and also deleted a couple of points because I think they would be better served in the Witness Statement further down the road (hope you don't mind).

      ---------------------------------

      1. Each and every allegation in the claimant's statement of case is denied unless specifically admitted in this defence.

      Claimant's non-compliance
      2. By way of general comment, the Claimant has failed to comply with the Practice Direction for Pre-Action Conduct and Protocols insofar as the Claimant did not issue a letter before claim prior to the commencement of these proceedings. The Defendant has therefore been deprived of any opportunity to address the Claimant's allegations without the need for legal proceedings.

      3. Further, the Claimant has not pleaded his case in accordance with CPR 16.4 (1) (a), in that there is not a concise statement of the facts on which the Claimant seeks to rely. The Defendant will set out [his/her] own version of events as follows:

      Factual background
      4. The Defendant and the Claimant's properties share a rear boundary which is marked by a fence.

      5. In June 2017 the Claimant, without discussion or consultation, decided to replace the fence at the bottom of his garden, part of which delineates the boundary between the Defendant's and the Claimant's property.

      6. The Claimant attended the Defendant's property the day before fencing was to be replaced. The purpose of the visit was to request the Defendant keep his dog inside the following day due to work being carried out. This was the first communication the Claimant had made with the Defendant regarding his intentions to replace the fence.

      7. During this visit the Claimant requested a contribution towards the replacement of the fence. The Claimant had brought with him a single receipt detailing the cost of fence panels, concrete post and concrete base boards. There was no copy of any receipt for labour.

      8. The Defendant informed the Claimant that he was not able to afford to pay for a replacement fence but would try to contribute if his circumstances improved.

      9. The Defendant felt ambushed and intimidated by the Claimant and was given no opportunity to review the Claimant's plans or costings of the replacement fencing and was not asked for his permission for the Claimant to carry out the work.

      The alleged contract
      10. It is denied, insofar as it is alleged, that there was ever an agreement between the Claimant and the Defendant.

      PARTICULARS



      a. The Claimant purchased the materials and arranged for the work to be carried out without any prior consultation as to the cost of labour or materials.

      b. Without prejudice to the foregoing denial, it is admitted that Defendant said to the Claimant that he may contribute an amount towards the cost of the materials but that was nothing more than a gratuitous offer.

      11. In the circumstances, there was no consideration, a lack of certainty of terms as to the agreed contribution amount, cost of labour and materials, nor was there any intention to create legal relations and it is therefore denied that the Defendant enter into a legally binding contract as alleged or at all.

      Intimidation by the Claimant
      12. Further, the Defendant's conduct has amounted to intimidation in that the Claimant contacted the Defendant's place of work through the social media platform that is Facebook. [Explain what was said to be intimidating].

      13. By virtue of the aforementioned conduct, the Defendant made a goodwill offer to the Claimant in the sum of £140.00 but this was rejected.

      14. For the reasons set out in this Defence, it is denied that the Claimant is entitled to the alleged sums or at all.
      Last edited by R0b; 29th September 2018, 09:07:AM.
      Click here to check out my list of templates

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      Comment


      • #48
        Thank you - I wish my mind worked logically ... that reads much better
        “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

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        • #49
          Apologies to have not posted on here recently, we've had a family bereavement and then some issues at work, so just getting back to this and mindful that I have til 4pm on Monday to file my defence.

          The receipts received from the neighbour show that the total cost of fencing for the parts that are against my boundary comes to £620.59, so 50% would be £310.30, yet he is claiming £368 plus court costs. He did state in his email that he had to pay for cement for the posts but doesn't have a receipt. I replied to his email asking for an explaination but received no response.

          Comment


          • #50
            I've had a read through Rob's post above, and have added a couple of bits but is there anything else I need to change before submitting it (and do I submit it with the numbering?)

            ---------------------------------------------------------------------
            1. Each and every allegation in the claimant's statement of case is denied unless specifically admitted in this defence.

            Claimant's non-compliance
            2. By way of general comment, the Claimant has failed to comply with the Practice Direction for Pre-Action Conduct and Protocols insofar as the Claimant did not issue a letter before claim prior to the commencement of these proceedings. The Defendant has therefore been deprived of any opportunity to address the Claimant's allegations without the need for legal proceedings.

            3. Further, the Claimant has not pleaded his case in accordance with CPR 16.4 (1) (a), in that there is not a concise statement of the facts on which the Claimant seeks to rely. The Defendant will set out [his/her] own version of events as follows:

            Factual background
            4. The Defendant and the Claimant's properties share a rear boundary which is marked by a fence.

            5. In June 2017 the Claimant, without discussion or consultation, decided to replace the fence at the bottom of his garden, part of which delineates the boundary between the Defendant's and the Claimant's property.

            6. The Claimant attended the Defendant's property the day before fencing was to be replaced. The purpose of the visit was to request the Defendant keep his dogs inside the following day due to work being carried out. This was the first communication the Claimant had made with the Defendant regarding his intentions to replace the fence.

            7. During this visit the Claimant requested a contribution towards the replacement of the fence. There was no discussion as to the costs of the materials, costs of labour, or the contribution required from the Defendant.

            8. The Defendant informed the Claimant that he was not able to afford to pay for a replacement fence but would try to contribute if his circumstances improved.

            9. The Defendant felt ambushed and intimidated by the Claimant and was given no opportunity to review the Claimant's plans or costings of the replacement fencing and was not asked for his permission for the Claimant to carry out the work.

            10. The Claimant attended the Defendant's property once the fence had been replaced. The Claimant had brought with him a single receipt detailing the cost of fence panels, concrete post and concrete base boards. There was no copy of any receipt for labour.

            The alleged contract
            11. It is denied, insofar as it is alleged, that there was ever an agreement between the Claimant and the Defendant.

            PARTICULARS

            a. The Claimant purchased the materials and arranged for the work to be carried out without any prior consultation as to the cost of labour or materials.

            b. Without prejudice to the foregoing denial, it is admitted that Defendant said to the Claimant that he may contribute an amount towards the cost of the materials but that was nothing more than a gratuitous offer.

            12. In the circumstances, there was no consideration, a lack of certainty of terms as to the agreed contribution amount, cost of labour and materials, nor was there any intention to create legal relations and it is therefore denied that the Defendant entered into a legally binding contract as alleged or at all.

            Intimidation by the Claimant
            13. Further, the Defendant's conduct has amounted to intimidation in that the Claimant contacted the Defendant's place of work through the social media platform that is Facebook. The Claimant sent a message to the Defendant's place of work asking what they do when they don't get paid money that they are owed.

            14. By virtue of the aforementioned conduct, the Defendant made a goodwill offer to the Claimant in the sum of £140.00 but this was rejected.

            15. For the reasons set out in this Defence, it is denied that the Claimant is entitled to the alleged sums or at all.

            Comment


            • #51
              So, I submitted my defence earlier today and when asked if I would consider mediation, I selected 'yes'.

              When I log back into the gov.uk website, it says that I have suggested mediation and they will ask the Claimant if he agrees.

              There is also a section where I can make an offer to settle out of court (and says I can avoid a CCJ if the claimant accepts the offer). Should I make an offer or leave it?

              Comment


              • #52
                You will only get a CCJ marked against you IF you lose and IF you fail to pay within a month.

                If he accepts mediation then you will be talking to a third party alternately. He won't hear what you say and you can't hear what he says. You will only know what is offered. If you are willing to pay part of the price then agree that price and stick to it and also say that you will pay over a period of , say, 6 months.

                If you can't agree then it proceeds to court.

                It all boils down to if you thought the fence needed renewing anyway or the work was unnecessary from your point of view.

                Comment


                • #53
                  Whether and when you make an offer is a matter of personal preference. You seem to have a pretty strong case, but, on the other hand, it is time-consuming and anxiety-inducing having to go to court. How much is it worth to you to be able to head that off? And, however much it is, can you afford to pay it? The one thing you definitely don't want to do is make an enforceable offer that you cannot pay.

                  Neighbourly relations are clearly not good, but it gets worse if you go to court, because one or other of you is going to lose. It's probably best from that point of view to reach some compromise. Mediation would be a good opportunity to do that.

                  I'll just add that at some point before trial the neighbour will have to pay £55 trial fee. That's the only additional cost that's involved. So, it's not going to cost you much more to go to trial (and lose) than to pay the full sum demanded now.

                  Comment


                  • #54
                    Out of interest, does anyone know how long a Claimant has in order to accept/reject the offer of mediation?

                    I have not heard anything since filing my defence, and the moneyclaim website still says 'You have rejected the claim. You’ve suggested mediation.

                    We’ll ask CLAIMANTS NAME HERE if they agree to take part in mediation.

                    If they say yes, we’ll arrange a date for mediation. If they say no we’ll send you a directions questionnaire - this is a form you complete to tell us more about the claim.'

                    Comment


                    • #55
                      They have 28 days to respond. If you hear nothing by the end of November then check directly with the court on the status of the claim.
                      “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

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                      Comment


                      • #56
                        I've now received an email from moneyclaim to say that the case has been referred to Mediation on 5th November and that the Small Claims Mediation Team will contact me to arrange an appointment.

                        Just curious as to what to expect really. Will I be expected to make an offer as part of the mediation and if so, if an offer is accepted, does that then count as a judgement against me (i.e. will I get a CCJ?)

                        Comment


                        • #57
                          No directions questionnaire from the court? ( new system so guessing they've switched it about and do this before they send it to the local court )

                          No you don't have to make an offer during mediation at all.... .you're defending the whole claim because you simply do not owe this person anything - you didn't know about the fence, ask for the fence or enter into any contract or agreement to pay for the fence.

                          Mediation is a three way call - so you talk to the mediator on one line, and she/he passes messages back and forth from you and from the claimant on another line.... if you'd rather offer something to get it over and done with then you can - and no there wouldn't be a CCJ so long as you stuck with what was agreed. Anything discussed in mediation is confidential in any case.
                          “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

                          Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

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                          • #58
                            Originally posted by Amethyst View Post
                            if you'd rather offer something to get it over and done with then you can - and no there wouldn't be a CCJ so long as you stuck with what was agreed. Anything discussed in mediation is confidential in any case.
                            But, if you agree to a settlement of the claim in mediation, that is binding. You can't reopen any of the arguments later about why you owe nothing. So, if you agree to pay say £100, that's what you have to pay.

                            Comment


                            • #59
                              Bit of an update....the telephone mediation never went ahead. Instead I received an email with a Directions Questionnaire which I have to fill in and send back before 27th December. Interestingly, the Directions Questionnaire asks if I'd agree to mediation.

                              When contacting the people who arranged the telephone mediation, they advised that the claim has now been passed to a local court to proceed.

                              Comment


                              • #60
                                Little arse about face. DQ is normally before mediation. I think it's the new Beta online courts system hasn't quite got sorted out what happens after a defence so it just gets put in the 'normal' system and there's an overlap.

                                Why didn't mediation happen ? Courts fault or the parties ?

                                Well complete the DQ and return it to the court in good time and send a copy to the claimant.
                                “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

                                Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

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