Claim received, but no particulars of claim

[Phoenix100]

Assume I can argue at the hearing that the shop owner is not impartial? He also did not have a detailed look at all work and didn't see the quality of the rectification work that was carry out.

[Phoenix100]

I have just noticed there is no statement of truth on the claimants witness statement. Does this mean anything? He has clearly given an incorrect statement as he claims I refused an independent report when I had 2 completed and evidence that I sent them to him.

[jaguarsuk]

You need to ask at the hearing that his Witness Statement is struck out as it does not comply with CPR part 22.

In your witness statement you should have evidenced the independent reports, so even if it isn't it'll show that he's not telling the truth.

You need to make the court aware you were not served with his directions questionnaire, were unaware he was bringing an expert witness, have not been served the expert witness' report and as such were not able to question the expert under CPR part 31. As a result ask that any report be struck out and expert not be allowed to give evidence or else the claim be adjourned with directions ordering disclosure.

[Phoenix100]

Thanks Jaguarsuk. I will request that their witness statement is struck out. The report is in my evidence bundle as well as an email from the claimant refering to the report so I can clearly evidence he's not telling the truth.

I contacted the court to say we hadn't been served with the directions questionnaire and were just told we could request it from the court for £10. If I order it can I still claim it hasn't been served. The hearing is next week so I'm not sure it will get to me in time anyway.

[jaguarsuk]

Thanks Jaguarsuk. I will request that their witness statement is struck out. The report is in my evidence bundle as well as an email from the claimant refering to the report so I can clearly evidence he's not telling the truth.

I contacted the court to say we hadn't been served with the directions questionnaire and were just told we could request it from the court for £10. If I order it can I still claim it hasn't been served. The hearing is next week so I'm not sure it will get to me in time anyway.

It's no use to you, it's usefulness has passed and you just need to make the points I raised in post #48

[Phoenix100]

The claimant has provided very little evidence as part of his WS. As he has been very vague in his statement of claim I have provided a detailed and transparent WS and evidence pack. I am just wondering if the claimant is able to use the evidence provided provided by me, or can he only discuss what's in his own WS/evidence pack?

[jaguarsuk]

The claimant has provided very little evidence as part of his WS. As he has been very vague in his statement of claim I have provided a detailed and transparent WS and evidence pack. I am just wondering if the claimant is able to use the evidence provided provided by me, or can he only discuss what's in his own WS/evidence pack?

No he can discuss anything in your evidence as well as his own, but if he's being vague and you are being detailed a judge will see that for what it is. Remember in civil claims the burden of proof is "the balance of probabilities" or what's most likely to have happened, credibility goes along way to swaying the judges mind.

[Phoenix100]

My hearing is on friday. As I'm somewhat nervous about going to court I have prepared the statement below, I'm hoping they will allow me to read it. I know hearings can be dealt with in different ways, but assume I'll be asked to summaries my defence and counterclaim. Is what I've put below sound ok? Do I need to make specific reference to evidence as I go through? And should I highlight the consumer rights act?

Xxxx carried out work on our bathroom. The work he carried out was repeatedly substandard and produced work which resulted in 2 water leaks into our kitchen below, both showers not installed correctly, curved and damaged worktops, scratched and damaged cabinets, metal stained sink, WC unit not fitted correctly, bowing bath panel, no subfloor to laminate flooring and generally poor grouting and silicon liberally applied. Rectifying this work has left us at a significant financial loss as we have had to remove damaged item, purchase new items and pay to have them installed.

We highlighted issues with the workmanship as they became apparent and due to xxxx not listening to our concerns we contacted the bathroom shop where we had purchased the bathroom fixings and fitting and whom had recommended xxxx. They informed us they would talk to xxxx to ensure remedial work was carried out. xxxx from the shop brought to site another fitter who confirmed our concerns with the incorrect fitting on the main shower and also highlighted addition issues such as the chipped worktop. xxxx also organised the area sales manager, xxxx, from xxxx, who had manufactured the cabinets, sink and worktop to visit the site.

Xxxx dismissed our issues with the cabinets and worktop stating that he thought they were fine, the worktop was nearly straight and that we needed to be reasonable. xxxx claimed in an email to have an email from xxxx stating his work was to their standards. I have requested this on 3 occasions and it has not been forthcoming.

In addition to verbal requests to remedy work, we provided two written lists of outstanding work. xxxx plumber came to site on the 6th December to address the outstanding issues. However, the work he undertook left us with a water leak into the kitchen below and other items on the list either ignored or left in a worse condition than previous.

After allowing xxxx access to our home for 5 weeks, with continued sub-standard work and threat of legal action, we had no confidence in his ability to complete the work satisfactorily.

We provided xxxx with two independent reports which confirmed poor work and poor remedial work and also highlighted further issues I was had not previously been aware of. xxxx has not addressed both of these reports, instead he employed a debt collection agency, xxxx, to pursue us for the money providing them with incorrect information and increasing his quotation.

We instructed rectification work to be carried out after we were informed by xxxx that they had closed the account with xxxx. We sought 3 quotes to rectify the work and chose the one that we believed to be the best value to mitigate against increasing loss. The rectification work uncovered further fundamental issues with xxxx work, including waste water pipes running uphill, open waste pipe, and chips in the bath that had been filled with sealant.

Xxxx has failed to provide a clear statement of claim or a defence to my counterclaim. He has also failed to serve us with his directions questionnaire. xxxx has clearly failed to provide an accurate witness statement as he states I have refused to have an independent report. Two have been provided to which can be clearly evidenced that he has received. xxxx and xxxx witness statements are non-compliant to CPR part 22 and therefore I request his witness statement is struck out.

[jaguarsuk]

Yeah that sounds good as an opening statement, but I would add after requesting strike of the Witness Statement...


Consequently I respectfully request the Claimants Claim be dismissed and that summary judgement be entered against him on the Counterclaim.

[Phoenix100]

I had my hearing today and the claimant was found in breach of the consumer rights act. The judge told me I should have ticked yes for question D2 regarding expert witness, but did allow the report's I'd provided. He made me reduce my counterclaim as he thought some things could be repaired. So overall I was awarded about half the money I was claiming. Although I am still out of pocket I am happy with the result. Thank you very much for the help you have provided, I couldn't have got this far without the support of this forum.

The claimant did however approach me at the end to say he doesn't have the money to pay me. The judge suggested we come to an agreement ourselves about payment terms. I am happy to facilitate this as long as the period is not too long. Will the court supply details of how to do this? and is there anything I need to be aware of with agreeing to a longer payment period?

[jaguarsuk]

I had my hearing today and the claimant was found in breach of the consumer rights act. The judge told me I should have ticked yes for question D2 regarding expert witness, but did allow the report's I'd provided. He made me reduce my counterclaim as he thought some things could be repaired. So overall I was awarded about half the money I was claiming. Although I am still out of pocket I am happy with the result. Thank you very much for the help you have provided, I couldn't have got this far without the support of this forum.

The claimant did however approach me at the end to say he doesn't have the money to pay me. The judge suggested we come to an agreement ourselves about payment terms. I am happy to facilitate this as long as the period is not too long. Will the court supply details of how to do this? and is there anything I need to be aware of with agreeing to a longer payment period?

If need be and you can't agree the court can order him to disclose his finances then set a repayment amount by order.

It would be better for you to agree it yourselves though, the fact he has approached you suggests he's not going to try to avoid paying the judgement.

While you would like it to be a shorter period it's paid over, be realistic. It is better to have payment over a longer period that the judgement debtor can afford to pay than one they can't over a shorter period. In the latter instance default is more likely because whilst their life isn't really your problem they will always prioritise their needs over paying you, so if the washing machine breaks and it's a choice between a new one or you... it'll be washing machine every time. On a more affordable payment it'll be both.

Once you receive the court order just write to him, thank him for his honesty in disclosing he can't pay in full as it helped to set expectations and ask him to make a suggestion of an affordable instalment amount, but to be mindful that it should also be realistic.

[Phoenix100]

I received the judgement order order last week and contacted the claimant requesting they proposed a payment schedule. As yet I have not heard anything from the claimant. The judge stated in court that they had 14 days to pay which would be tomorrow. However, the judgement letter does not state this and what I have researched it suggest they have 30 days to settle. I requested a payment schedule by tomorrow (14 days since the hearing), if this is not forthcoming what is the best course of action? Should I contact the court to enforce the judgement or wait until 30 days has passed?

[Phoenix100]

I have just had an email from the builder stating he is only able to pay £40.00 a month. This will take 6 years for it to be paid in full. He has stated he is happy to be means tested. Is this worth it? 6 years seems a long time, but if this is really all he can afford is it easier just to accept it rather than getting him to provide evidence of his financial situation? As it is going to take so long to pay am I allowed to claim interest? What is an appropriate rate and does this need to be agreed by the court? I would like a clear payment schedule signed by both parties, is there any guidance on how to write/create this?

Sorry, lots of questions. I was hoping that with a favorable judgement that all this would be over but it seems just as complex to actually get the money owed paid.

[jaguarsuk]

I have just had an email from the builder stating he is only able to pay £40.00 a month. This will take 6 years for it to be paid in full. He has stated he is happy to be means tested. Is this worth it? 6 years seems a long time, but if this is really all he can afford is it easier just to accept it rather than getting him to provide evidence of his financial situation? As it is going to take so long to pay am I allowed to claim interest? What is an appropriate rate and does this need to be agreed by the court? I would like a clear payment schedule signed by both parties, is there any guidance on how to write/create this?

Sorry, lots of questions. I was hoping that with a favorable judgement that all this would be over but it seems just as complex to actually get the money owed paid.

I think it is better to agree to a longer, but affordable period personally as the aim of the game is to recover the money. The general rule is that interest on a CCJ or order will accrue at the rate of 8% per annum, provided that the judgement is for a sum not less than £5,000 and so that wouldn't be appropriate for your judgement.

You could apply to the court to vary the order and have the court set the schedule, however this will cost you money and add to the debt, which will take even longer to be paid.

You can do it yourself and if he defaults apply to enforce still, so I would use the format of the pleadings and title it 'JUDGEMENT REPAYMENT SCHEDULE.' In the contents write:

Upon the County Court at X adjudging on XX/XX/2019 that the Defendant pay the Claimant the sum of £X, the parties agree that the Defendant will pay the sum by instalments of £40.00. The first payment is to reach the Claimant by XX/XX/2019 then continue monthly until the judgement is settled.

The Defendant acknowledges the Warning contained on the Judgement Order regarding this matter and that it applies to defaulting on this repayment schedule.

Print two copies of it ask him to sign both and return them, then you sign them both keeping one and sending back the other to him for his records.

[Phoenix100]

I have just had an email from the builder which states he's taken legal advice and has submitted an N164 to the court to appeal. He hasn't sent me a copy. What grounds can he appeal on? and if granted does this mean I would need to back for another hearing? What is the process now? I know this is difficult to answer but does he really have a chance of winning an appeal?