Being pursued for cost of replacement fence

[R0b]

It seems your defence will largely be down to there being no consideration and so no contract existed. However as consideration does not require a moneyary value but derive some benefit, there might be an argument that the fence constituted good consideration. In which case your alternative point of argument will rest on there being an uncertainty of terms (e.g. cost, type of fencing, how much your share would be) and/or the arrangement was subject to further negotiations. As the Claimant failed to negotiate further and substantive terms were missing, there could not have been any agreement between yourself and the Claimant.

See below an example type defence based on no consideration as a starting point to assist along with Ame's example above. You will of course need to adapt to suit your situation.

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

The Claimant's non-compliance

2. The Defendant avers that the Claimant’s statements of case are fundamentally inadequate and fail to comply with rule 16.6 of the Civil Procedure Rules 1998 (the "CPR"). In particular, the Particulars of Claim discloses no real cause of action and the Defendant is entitled to know the case he has to meet so that he is in a position to consider and/or file a proper defence. Accordingly, the claim is liable to be struck out for want of particularity.

3. Notwithstanding the foregoing, the Defendant invites the Claimant by way of reply, to provide detailed particulars of its claim. Alternatively, the Court is invited to exercise its discretion under its case management powers to make an order (or any other order as it sees fit) that, unless the Claimant files and serves detailed particulars then the claim shall be struck out.

The alleged contract

4. The Defendant denies that he agreed to enter into a legally binding contract for the payment of the Defendant’s sons’ car insurance as alleged in the Particulars of Claim or that he entered into the alleged or any agreement with the Claimant at all.

5. The Claimant admits in the Particulars of Claim that the alleged arrangement was made between the Defendant and his son. The Defendant will refer to this statement as evidence that no legally binding contract came into existence between the Claimant and the Defendant. As such, the Claimant has no lawful right to bring such a claim against the Defendant in her own name.

6. Insofar as it is alleged that there was an agreement between the Claimant and the Defendant (or the Defendant and his son), the Defendant admits that he made an oral promise to his son that he would offer some payment towards the cost of insurance but the said promise was nothing more than a gratuitous offer that was not supported by any consideration, nor has the Claimant pleaded the same.

7. Further to the above, the Claimant purchased the insurance policy of her own volition without any prior consultation and unbeknown to the Defendant. Therefore, there was no intention to create any legal relations between the Claimant and the Defendant or at all. In any event, the Defendant will say that there is a general presumption that family arrangements are not intended to be legally binding. The Defendant will rely on the following cases in support of this proposition:-

(a) Balfour v Balfour [1919] 2 KB 571
(b) Jones v Padavatton [1969] 1 WLR 328

8. Further and alternatively, if (which is denied), there was a legally binding contract between the claimant, then the Defendant will say that the contract is void for uncertainty. At all times, the Defendant informed the Claimant that he would "see what he could do" but at no point did the parties agree an instalment amount. The Defendant repeatedly stated that the instalment amounts sought by the Claimant were excessive and unaffordable and the Defendant reiterated this to both the Claimant and his son on numerous occasions.

Conclusion

9. For the reasons already mentioned in this Defence, it is denied that the Claimant is entitled to the sum claimed or any sum.

[gazfocus]

Just a quick update (or not, really). I've not heard anything from the claimant since sending him the request for evidence, so I shall update the thread when I hear back.

[R0b]

It would be very unwise of you to wait for the claimant to get back to you before you decide to file a defence. The claimant has issued a claim and you now have deadlines to meet and irrespective of whether you receive correspondence from the claimant, you still have to file a defence.

Sure, you might have until 15 October to submit a defence but you should be preparing one whilst you wait for any response. I suspect the claimant might not even respond to you and in that case you really don't want to submit a rushed defence because you sat on things.

I've given you an example defence to start off with above and I think you need to start working on it now. It might be helpful for you to post up draft copies on here and we can feedback any further comments we have.

[2222]

Can I just mention that the OP started a thread on MSE, here:
https://forums.moneysavingexpert.com....php?t=5889442

There's a lot of background info there.

The short version is:

The OP's neighbour chose to replace the fence. The day before work was due to start, he asked the OP if he would contribute towards it. No cost or percentage was specified. The OP agreed to that vague proposition, when he had the money - which so far he has not had. Since then, the OP has made various offers to the neighbour, but paid nothing.

My view, FWIW

The immediate issue is to put in a defence, but the longer term issue is that a neighbour dispute over a few hundred pounds is somewhat silly. It needs to be disclosed if either party wants to sell their house. It's also rather stressful and time-consuming. It ought to be settled over a cup of tea and biscuits, once tempers have died down a bit. Maybe the OP knows somebody who could act as mediator? The court mediation service - I haven't heard good things about it!

I'll just add that I don't think the neighbour had any plausible claim at all, except for the OP's offer to contribute. I don't know how that affects matters, particularly as (vague as it was) it was made before work started. No doubt the neighbour's recall of that conversation will be entirely different to the OP's.

[ostell]

Note that the OP has offered to contribute but only when they get some money.

[gazfocus]

It would be very unwise of you to wait for the claimant to get back to you before you decide to file a defence. The claimant has issued a claim and you now have deadlines to meet and irrespective of whether you receive correspondence from the claimant, you still have to file a defence.

Sure, you might have until 15 October to submit a defence but you should be preparing one whilst you wait for any response. I suspect the claimant might not even respond to you and in that case you really don't want to submit a rushed defence because you sat on things.

I've given you an example defence to start off with above and I think you need to start working on it now. It might be helpful for you to post up draft copies on here and we can feedback any further comments we have.

Thanks Rob, trust me, I'm not waiting around and doing nothing, I am indeed working on a defence. When I have a draft I'm semi happy with, I shall post it here

[gazfocus]

Can I just mention that the OP started a thread on MSE, here:
https://forums.moneysavingexpert.com....php?t=5889442

There's a lot of background info there.

The short version is:

The OP's neighbour chose to replace the fence. The day before work was due to start, he asked the OP if he would contribute towards it. No cost or percentage was specified. The OP agreed to that vague proposition, when he had the money - which so far he has not had. Since then, the OP has made various offers to the neighbour, but paid nothing.

My view, FWIW

The immediate issue is to put in a defence, but the longer term issue is that a neighbour dispute over a few hundred pounds is somewhat silly. It needs to be disclosed if either party wants to sell their house. It's also rather stressful and time-consuming. It ought to be settled over a cup of tea and biscuits, once tempers have died down a bit. Maybe the OP knows somebody who could act as mediator? The court mediation service - I haven't heard good things about it!

I'll just add that I don't think the neighbour had any plausible claim at all, except for the OP's offer to contribute. I don't know how that affects matters, particularly as (vague as it was) it was made before work started. No doubt the neighbour's recall of that conversation will be entirely different to the OP's.

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).

[gazfocus]

Quick question, while it doesn't seem my neighbour has a leg to stand on anyway, IF I were to erect my own fence alongside the neighbours fence on the same boundary, would this nullify the neighbours claim?

[gazfocus]

Here is my first draft of my defence. I would sincerely appreciate it if you could cast your opinions over it:

It is admitted that during June 2017, the claimant erected a new fence on the boundary between our properties. The Claimant first visited my property less than 24 hours prior to the new fence being erected and simply advised me to ensure our dogs were kept inside our property the following day as the new fence was being erected. There was no agreement between myself and the claimant to remove, erect or pay for any replacement fence on the boundary, nor was there any time in which to object as I was completely unaware of the claimants intention to remove and replace the fence until less than 24 hours prior to the fence being replaced and after the claimant had made arrangements to have the work done.

It is admitted that the claimant attended my property to request a contribution and brought with him a copy of a single receipt covering the costs of the fence panels, concrete posts, and concrete base boards, however, I clearly informed the claimant that, at that time, I was unable to afford to contribute but I would consider contributing at a later date. I deny that any amount was discussed, nor agreed to, and there was no discussion about the costs prior to the new fence being erected.

After a further visit from the claimant during September 2018, the claimant contacted my place of work via Facebook, at which point I made a goodwill, voluntary offer of contribution for the amount of £140, paid over 3 instalments. I then asked the claimant for copies of the receipts for labour costs so that I could consider making a voluntary offer of contribution towards those costs also.

This offer was rejected by the claimant via a message to my place of work via Facebook, sent on 9^th September 2018.
Since receiving this claim, I have again requested copies of the receipts, quotations and initial costings (as per their evidence) from the claimant in the form of a CPR 31.14 request, however, the claimant has chosen to not respond.

It is therefore denied that the claimant is entitled to the sums as claimed or at all.

[Amethyst]

the claimant contacted my place of work via Facebook, at which point I made a goodwill, voluntary offer of contribution for the amount of £140, paid over 3 instalments

Why on earth was he contacting your employer? Do you have copies of those messages at all ?


( Defence needs some work which we'll ( well, R0b will get to... but this just jumped out ? - have there been other issues of harrassment here as well ? )

[gazfocus]

The only thing I can think of is I have a work van parked on the drive which has the company name on, so they thought they were being clever.

The messages, I still have (they are on our company Facebook account), but they are from his wife’s Facebook account. It was in reply to the messages they sent to my employer that i made my offer of voluntary contribution.

It is worth noting though that the ltd company I work for belongs to myself and my wife, although it’s highly doubtful that my neighbours would have known that, so I imagine looking to cause maximum trouble for me.

[Amethyst]

Bullying and nastiness then. Doesn't massively assist with the defence I know, but may be a mitigating point for later witness statements.

I'll pop back in later ( just off to give blood then need some tea ) and see if R0b has had thoughts on your defence by then, if not we'll start whipping it into shape later

[gazfocus]

Just a quick post to add, I’ve just received an email from the neighbour with photos of receipts.

[Amethyst]

Morning, apologies for not getting back last night xxx

Do the receipts back up his claim ? ( well, the figures, not that you owe anything, as you don't )

[Amethyst]

Would you be able to paste the messages that were sent through FB ?

ignore numbering, it always cocks up when pasting from word. Still needs some work xxx

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

1. The Defendant denies that he agreed to enter into a legally binding contract for the payment of fencing as alleged in the Particulars of Claim or that he entered into the alleged or any agreement with the Claimant at all.

1. The Defendant and the Claimant’s properties share a rear boundary which is marked by a fence.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. Insofar as it is alleged that there was an agreement between the Claimant and the Defendant the Defendant admits that he stated that he would offer some payment towards the cost of fencing but that was nothing more than a gratuitous offer that was not supported by any consideration.

1. Further to the above, the Claimant purchased the fencing and arranged the work without any prior consultation and unbeknown to the Defendant. Therefore, there was no intention to create any legal relations between the Claimant and the Defendant or at all.

1. The Claimant visited the Defendant again in September 2018 and requested payment of XXXXX towards the fencing. The Defendant again informed the Claimant he was not in a position financially to be able to do so.

1. The Claimant further went on to contact the Defendant’s place of work via Facebook Messenger …….. wording ?

1. The Defendant found this extremely intimidating, and made a goodwill, voluntary offer to contribute the amount of £140, to be paid over 3 instalments and requested copies of the receipts for Labour costs so that a further voluntary contribution towards those costs could be considered.

1. This goodwill offer was rejected by the Claimant on 9^th September 2018.

1. The Defendant received this claim on xxxxxxxxxxxxx.There was no prior notification of such action contrary to the pre-action protocols.

1. The Defendant requested copies of the receipts, quotations and initial mentioned in the Claimant’s statement of case pursuant to CPR 31.14.

1. The Claimant has provided x,y,z

1. However, the Defendant contends that he is not liable to the Claimant for the sum as claimed or at all, and that no contract was formed in regards to the replacement of the fence.