Being pursued for cost of replacement fence

[gazfocus]

Sorry I've not posted back on here since my last post but I sent the form off to the court as instructed and got a response to say the case had been transferred to my local court. I really appreciate all the help I've received so far.

Anyway, I received the following letter today...

IT IS ORDERED THAT
1. The Particulars of Claim are struck out as failing to comply with CPR 16.4

2. The Claimant must file at court and serve on every other party a further statement of case which sets out a concise statement of fact upon which the Claimant relies. It must also set out a coherent set of facts, which, if true, disclose a legally recognisable claim against the Defendant and have attached a copy of the written agreement on which the claim is based (if any).

3. If the Claimant fails to comply with paragraph 2 of this order, the claim stands struck out without any further order of the court and the Defendant is entitled to apply for judgement pursuant to CPR 3.5.

4. The Court has made this order of its own initiative without a hearing. The parties' attention is drawn to the right pursuant to CPR 3.3 (4) and (5) to apply to have it set aside, varied or stayed within seven days of the date of service of this order.

So, I gather that the judge is asking the Claimant for a new particulars of claim, but how long do I have to wait before I can apply to have the case thrown out?

What is my next move? I am hopeful that the Claimant will realise he's fighting a losing battle and simply give up.

[gazfocus]

Any suggestions?

[Amethyst]

Sorry I missed your previous post - that's good news their particulars have been struck so they have to refile properly or the whole claim is struck out - does it actually not give any date by which they need to comply ? Seems odd not to give a date particularly after saying the defendant can file for judgment.

3.5 is https://www.justice.gov.uk/courts/pr...les/part03#3.5

[gazfocus]

No problem and thanks for replying.

Ther was no deadline on the original letter from
the court, however, the claimant has now sent a ‘statement of case’ which I received this morning.

The statement of case is full of lies - mainly he is stating that he gave me an estimate of costs before the fence was installed and I agreed to pay half, that they offered to show receipts and I refused, and that I have ignored all attempts at contact.

He really is trying to make me out to be the one at fault. He has even stated that I threatened to report him for harassment when he contact my work via Facebook.

He’s now stated in his statement of case that he would like to claim for interest.

[2222]

Just a word of advice. However strongly you feel about this, the claimant is mistaken, not lying! It's quite a long time since the event, so he may genuinely have convinced himself that his version of events is correct.

Anything that isn't relevant to his claim can be ignored, eg "He has even stated that I threatened to report him for harassment when he contact my work via Facebook.". Anything you do want to dispute should go into your defence, but avoid red herrings.

A claimant's normally entitled to claim interest, but I don't know whether he's now too late to do that. Unless you think it is too late, I wouldn't dispute the claim for interest.

[gazfocus]

This is the Statement of Case that the Claimant has sent to me:

I, Mr xxx of xxx, make this statement pursuant to the application dated xxx

1. In 2017, my wife and I's garden fence was in need of replacing. The fencing was beyond repair. We have dogs and the respondent has dogs so the fence was required.

2. The fencing is question provides the border for our property as well as two other neighbours, one of which is the respondent.

3. Overall the fencing cost approximately £1,200.00. We decided to pay half of the cost.

4. In June 2017 we asked both of our neighbours sharing the fence if they would agree to contribute collectively to the other half, as they would both benefit from the new fencing. We gave them a rough estimate including cost of labour and the actual goods. They both agreed to pay. Our other neighbour has paid without issue.
We were never shown, or given verbally, any indication of the costs involved and I agreed to make a contribution. No amount was discussed.

5. While no written agreement was made we took this as an oral binding agreement. We also have written evidence of messages sent between my wife and the respondent over Facebook suggesting that the respondent acknowledges he agreed to the payment originally.
The Facebook message he cites says 'Hi, as I said to your husband, it’s not a case of not wanting to contribute towards the fence, but I cannot give you what I don’t have. I have said I will give you the money when I have it but we are really struggling at the moment. We have a house sitting empty because we are trying to sell it, so having to pay two mortgages, and we don’t earn a great deal, surviving on tax credits.

I don’t want to fall out because I’m not that sort of person and I assure you I will contribute towards the fence as soon as I can.'

6. We found a good quality fence provider with a 5 year guarantee. We told the respondent this and he was happy with it.
Simply not true - I was not told anything about the fence.

7. We offered to show the respondent the receipts but he refused. We have evidence of the costs relating to the fencing including receipts of fencing panels and materials, receipts of labour costs, and initial correspondence with providers regarding costing.
I was only shown a single receipt for the cost of the fence and posts - I have a message on Facebook where I asked for the receipts and was ignored,

8. We agreed that the respondent's payment would be £368.00
I was 'TOLD' my contribution due was £368.00

9. The respondent agreed to pay but asked to split the payments over a period of time. We agreed out of goodwill. The respondent suggested that the first payment be £150.
My facebook message where I offered payment said 'so, I will keep my original offer of a voluntary contribution of £142 towards the fence panels, etc there should you change your mind. I am able to offer to pay this over 3 months with the first payment being the end of September.'

10. In July 2017, we asked the respondent to pay his share. The respondent has not paid any of the agreed amount.

11. My wife and I have tried numerous times to contact the respondent for payment, both face to face, and via facebook, The respondent has ignored all attempts of contact.
The Claimant says I have ignored all attempts at contact, however, states in point 13 that there have been a number of messages via Facebook

12. I did manage to talk to the respondent once. The respondent refused to pay citing the need to pay his mortgage and feed his child. We have seen the respondent's business van and believe that he does have enough money to pay.
Why does having a work van mean I have money? My work van is 5 years old and on a finance agreement that the company pays for.

13. After knowing the respondent has a business, my wife via Facebook message asked the respondent what he would do if a business client refused to pay. After a number of messages, the respondent threatened that if we contacted him via his work he would report us for harassment. Due to this, we decided to make a claim to finally sort this issue.

14. We have tried to avoid taking this issue to court, and have tried to speak to the respondent numerous times but to no avail. We agreed to mediation and a phone appointment was arranged. We took the day off work to ensure we would not miss it but we never received a phone call.

15. This has been a long standing issue, and as such we would like to make a claim for interest under Section 69 of the County Courts Act 1984.x

[gazfocus]

Just a word of advice. However strongly you feel about this, the claimant is mistaken, not lying! It's quite a long time since the event, so he may genuinely have convinced himself that his version of events is correct.

Anything that isn't relevant to his claim can be ignored, eg "He has even stated that I threatened to report him for harassment when he contact my work via Facebook.". Anything you do want to dispute should go into your defence, but avoid red herrings.

A claimant's normally entitled to claim interest, but I don't know whether he's now too late to do that. Unless you think it is too late, I wouldn't dispute the claim for interest.

I have already filed a defense (quite some time ago) and the judge struck out the claimants particulars. Will I be given another chance to write a defense seeing as this statement of claim is new, or will it simply go to a hearing now? I was genuinely hoping the judge would have the ability to make a decision without needing a hearing.

[2222]

Can I ask an irrelevant question? It's 18 months since all this happened. Is your other home sitting empty and unsold still? The amount of time and nervous energy all this must be taking ...

[gazfocus]

Can I ask an irrelevant question? It's 18 months since all this happened. Is your other home sitting empty and unsold still? The amount of time and nervous energy all this must be taking ...

Thankfully, the other house sold last summer. It was the most stressful thing we've ever been through...the house was literally weeks away from being repossessed because we simply couldn't afford to pay two mortgages. It was a huge weight lifted when it sold.

[ostell]

So can you now afford to make him an offer of the rest of what you believe is reasonable, due to a a change in position for the better.

[gazfocus]

So can you now afford to make him an offer of the rest of what you believe is reasonable, due to a a change in position for the better.

The short answer is no, but regardless, at the beginning this was not about not wanting to pay towards the fence, it was about simply not being able to afford what the claimant was asking. However, that amount has obviously now increased with the cost of the court claim, and now if he's seeking interest, so it is unlikely he would accept the original amount anyway.

[Amethyst]

2. The Claimant must file at court and serve on every other party a further statement of case which sets out a concise statement of fact upon which the Claimant relies. It must also set out a coherent set of facts, which, if true, disclose a legally recognisable claim against the Defendant and have attached a copy of the written agreement on which the claim is based (if any).

You now await further directions from the court.

The new statement of claim doesn't actually improve all that much on the original.



And this is the current defence filed ( the order was off the back of the first paragraphs - and paragraph 13 might be where he has got the 'harrassment' bit from.

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.

[ostell]

I was just suggesting a payment of the ORIGINAL amount that you thought was reasonable as you were now able to afford it. Just to show the court that you have followed through on what you already told him, ie you would pay when you could afford it but he jumped the gun with the claim.

[2222]

The short answer is no, but regardless, at the beginning this was not about not wanting to pay towards the fence, it was about simply not being able to afford what the claimant was asking. However, that amount has obviously now increased with the cost of the court claim, and now if he's seeking interest, so it is unlikely he would accept the original amount anyway.

I don't want to pry, but you are self-employed, this is a work day, it's lunchtime, and you appear to have been spending your time worrying about this case. My point is that, although people here think you have a very strong case, there is a cost to you in continuing all this.

As far as I can see, the new statement of claim contains many irrelevances but it does contain a triable case. So, no, I don't see the judge throwing it out before trial. I am not a lawyer, and I could be wrong on this.

[gazfocus]

Thanks for all the comments. I’ve given this a lot of thought before doing anything.

Anyway, I have received a letter today from the court advising me of the hearing date. It also says the claimant has a deadline by which to pay the hearing fee of £55 otherwise the claim will be struck out.

So, following the receipt of that letter and based on my thoughts previously, I have written an email to the claimant basically saying that, as previously stated, I’d much prefer to remain on friendly terms and so I’m making one final attempt to resolve this between us before they end up paying for a hearing. I have offered them (using the term ‘voluntary contribution’, 50% of the cost of 6.5 panels worth of materials and labour based on the receipts they supplied earlier in the case (which is about £58 less than they originally asked for), and said I can pay it over 5 months beginning 28th feb to ensure the first payment is with them before their deadline to pay for a hearing.

Not convinced they’ll accept it as they’ll likely see it as I now owe them their court fees plus interest, but we shall see.