Have I screwed up my defense?

[charitynjw]

.........much later, lol.

Ok

Contracts have primary obligations.
Ie party A hires party B to cut his lawn for the consideration (price) of £50
The primary obligations are
1/ the cutting of the lawn by B
2/ the payment by A of £50 for doing so.

But the contract contains an exclusion cause.
Let's say it is "If, for no fault of his own, B does not carry out the task, the contract is voided."

Let's say that A wanted the lawn cut because he was selling the property.
Because of the unkempt lawn, a prospective buyer decides not to buy.

A then tries to sue B for damages caused by the breach. (Poss the loss of chance to sell the house?)

The question for the court is then "Is it fair for B to be able to rely on the exemption clause?"

That pretty well fits with your case.
Can the other party rely on that exclusion clause re the survey?

I'd argue no; it appears to me to be far too vague, & I would suspect that not many members of the public would know what "subject to the usual survey" would mean...it could easily be used as a 'get out of jail free' card.
& 'unequal bargaining power' could kick in.....is their experience & knowledge being used to insert an unfair term?

You also have Suisse Atlantique Societe d'Armament SA v NV Rotterdamsche Kolen Centrale [1967] 1 AC 361

& of course the Unfair Contract Terms Act 1977 & CPUTR 2008

It is for the court to decide the fairness of the term & whether an exclusion can be relied upon.
(There was much fun & games between the (then) House of Lords & the Court of Appeal as to the decisions of these types of cases.)

That's my take on it, anyway.

Btw, I've PM'd you.

[OhNo]

Just a quickie...a consumer credit 'agreement' is most definitely a contract.

If it looks like a duck, & quacks like a duck...........

Interesting stuff njw but why is it a consumer credit agreement? I mean its not like I've sign up for a new credit card?

I have the idea to re-upload my defense and upload their defense to my counter-claim but in a form that hopefully Google won't find so easily. Also having all the docs in one place should hopefully make it easier to navigate. In the worst case and the other side finds it hear, have I done anything wrong by making it public?

My defense:
Defence_redacted_final.pdf

"Agreement":
redacted_Offer_Letter_final.pdf

Their defense to my counterclaim :
counterclaim_defence_redacted.pdf

[charitynjw]

Interesting stuff njw but why is it a consumer credit agreement? I mean its not like I've sign up for a new credit card?

Lol!

I mean it's just 'semantics'.

An 'agreement' can be a contract if it contains all the elements of a contract.

[charitynjw]

OhNo

When was the 'usual conveyancing' carried out?

[OhNo]

OhNo

When was the 'usual conveyancing' carried out?

I don't know what 'usual conveyancing' means? If it means engaging the services of a solicitor or conveyancer who then performs their duties to manage the transfer of properties then in my case it started well before this around two months prior. It was my understanding that the claimant also engaged his conveyancing solicitor around the same time.

[charitynjw]

I don't know what 'usual conveyancing' means? If it means engaging the services of a solicitor or conveyancer who then performs their duties to manage the transfer of properties then in my case it started well before this around two months prior. It was my understanding that the claimant also engaged his conveyancing solicitor around the same time.

When was the survey (of the drains) carried out? (In relation to the finalising/signing of the sale contract.)

[OhNo]

When was the survey (of the drains) carried out? (In relation to the finalising/signing of the sale contract.)

So there were several site visits by tradesmen/architects before we signed the agreement (so perhaps 2 months prior to it falling through) . He did not tell me what they were doing or checking but I don't recall any manhole covers being lifted. I have since found out that access to services and drains are among the most obvious to check for developers intending to clear a site and build new houses. These are multi-million pound projects. We find it very hard to believe he would commit himself not only for the purchase price of our "site" but the very considerable 7 figure building costs without knowing about an apparent issue with the drain.

During the final week leading up to the abortive sale, the developer said he had only just had his legal checks through from his conveyancing lawyer and these stated there was an issue with the drain layout on site. Note that as part of the development he would be constructing new drains for three new houses so we believed and still believe that one existing shared drain was:
a/ Not a reason for him to threaten to pull out if we didn't pay for this to be re-routed
b/ Something he must have known before hand - there was no attempt on our part to hide the numerous manhole covers.

Obviously I'm not sure it would be cost effective to employ an "expert" to try to convince the judge of this. I have a nasty feeling he might do that given his resources are vast compared to mine.

Three facts that stand out (to me) other than domain specific stuff are that:
- the amount he wanted to continue to purchase was tiny in comparison to the GDV of the project (multi-million)
- that he subsequently backtracked and said he would after all pay the original price.
- A few months prior to signing the agreement, he offered to purchase the "land" (our house to be demolished) for an amount very close to the eventually agreed amount minus the discount he sort. We declined at that time.

Btw, thanks a lot for continued interest in this case! I might have to buy you a virtual beer if this goes well.... !!

[charitynjw]

https://www.wrighthassall.co.uk/know...y-enforceable/

[OhNo]

https://www.wrighthassall.co.uk/know...y-enforceable/

Hmm. Not many grey cells left in my head. Any clue as to how this relates to my case? 8-)

[charitynjw]

Is there a 'seperate sheet' to your defence?
If so I can't see it.

Also how much of your legal rep's fees are due to the collapse of the sale? (%age?)

[OhNo]

Is there a 'seperate sheet' to your defence?
If so I can't see it.

Also how much of your legal rep's fees are due to the collapse of the sale? (%age?)

Hi

My defence was (perhaps sadly) just contained in box 3 - no extra sheets. There is my counterclaim if you need that but suspect its not as important as the defence.

Fees-wise I think 100% - I think they even use language like "..invoice for the abortive sale of ....". Note I'm not holding a huge amount of hope for the counterclaim - I just don't know. What I do know is I I did pay that fee and his actions caused the fee to be paid in vein. Maybe I should focus on the defense?

[charitynjw]

Ok.

You'll get an opportunity in due course to do a Witness Statement.
At the same time you can do a written 'skeleton' legal argument, where you outline your perceived legal position, complete with references to legislation, court cases etc.
I would strongly suggest that as a plan of action.

[OhNo]

Ok.

You'll get an opportunity in due course to do a Witness Statement.
At the same time you can do a written 'skeleton' legal argument, where you outline your perceived legal position, complete with references to legislation, court cases etc.
I would strongly suggest that as a plan of action.

Thanks for that!

Is the skelton legal argument something I'd include within the witness statement (or attached to it) or is this essentially private notes that I'd carry with me to the hearing?

Also any idea what is a typical timeframe from being asked to prepare a witness statement to having to submit it ?

[charitynjw]

Thanks for that!

Is the skelton legal argument something I'd include within the witness statement (or attached to it) or is this essentially private notes that I'd carry with me to the hearing?

Also any idea what is a typical timeframe from being asked to prepare a witness statement to having to submit it ?

Best to file the skele at the allocated court a few days before the hearing.

You'll get court directions for the WS....usually filed 14 or so days before the hearing....3 copies. (1 for court, 1 for other party, 1 for you)