Small clailms court

BREWSTER

Hi,
Can anyone help?
I am in dispute with a window installation company which has been on going on now for approx. 4 years, they have been to my house around 20 times to make adjustment and replace parts to numerous windows and doors fitted. We are at the stage where we agreed that they would attend site to carry out a list of jobs to bring the windows and doors up to what you would say fit for purpose, at which I agreed to pay them a £500 of a £1000 of which I owed them, this was being held as security against damage they caused to my property while installing the windows and doors.
The appeared on site carried out some of the works after receiving payment and left the premises without finishing what was agreed. I rang them on several occasions to find out why they left, no response. I wrote to them the following day telling them my intention was to cancel the cheque as they did not complete the agreement.
several weeks later I received a court summons suing me for the cancelled cheque, I have issued my defence and awaiting further instruction from the courts.
MY QUESTION IS - The patio doors they have supplied to the rear elevation of the building have never been draught free, they have attempted on several occasion to deal with this and have failed, I have informed them that we feel the doors are not fit for purpose and they have fitted products not suitable for the use they have been designed to do. CAN I ISSUE A CLAIM AGAINST THEM FOR THE COST TO REPLACE THESE ITEMS FROM ANOTHER SUPPLIER USING THE ONLINE MONEY CLIAM ONLINE SERVICE THROUGH THE COURTS.

bris

There is no defence against a cancelled cheque, a cheque is a promise to pay and it is an instant win for them regardless of the circumstances.

You can however counter sue for what you believe is right and let the courts sort your claim.

BREWSTER

Thanks for your reply bris, the reason for the cancellation was the fact that they were in breach of an agreement we made.


Would I need to replace the doors I feel are not fit for purpose before I can sue for the value of, or can I sue to cover the cost prior to having them replaced.

arcon5

The fact they didn't do as told is irrelevant. There is no defence for cancelled cheque in law other than fraudulently issued. They will get judgement in their favor then you can pursue a claim separately.

Get quotes for remedial work elsewhere then give them a final opportunity. Then use the remaining 500 to pay for it. If remedial works come to less than 500 you pay the remainder to the original company. If its more than 500 you sue them.

If they sue you for the unpaid sum of 500 you can counterclain - but for the cancelled cheque court case they will win so probably worth paying them it now before costs add up.

BREWSTER

Thanks for help.
I understand the cheque situation however I feel I have a strong case, when they walked off site I called them to talk over why, they would not reply, they left the main issue we have in sorting out the patio doors. I wrote to them the following day explaining why I cancelled the cheque and no response until I received the court summons 5 weeks later. A simple call from them would have been sufficient to resolve the issue.
With regards to the patio doors, they have tried to adjust these on several occasion and cannot resolve the draught and locking problems we have with them, so much so that the last fitter that came to us confirmed that the doors do bow which is what causing the problem and he could do no more with them. These doors need replacing seems that no amount of remedial works seems to resolve the problem.
As far a I am concerned they are not fit for purpose.
I have a Quote from an alternative supplier to replace them an plan on suing for this value to replace the doors. Should I warn them of my action of go straight to the courts, if so can I do this using the MONEY CLAIM ONLINE SERVICE.

pmduk

As has already been explained to you twice, you have little case/defence against the cancelled cheque. By issuing the cheque you have indicated you were happy. All you can do is to counterclaim for the cost of getting the work rectified by an alternative supplier.

stevemLS

I agree, the only defences available for a stopped cheque are fraud and misrepresentation and neither of these apply.

I think the correct procedure for you to use is to file a "Defence and Counterclaim", in reality it is not a defence as the form allows you to admit part or all of the claim.

So, you need to admit the claim of £500 but then say that you are exercising your right of set off. You will need at least one quote from a reputable company for putting right what you say are the defects. If, for example, you get a quote that says £1,000, you admit £500, counter-claim £1,500 so the net amount of your claim is £750.

It is Form N9B that you need. No idea whether you can do it through MCOL but you can email documents to the court.

BREWSTER

Thank you for your replies.

mattyprice4004

At risk of repeating what others have said, call them and pay the money now, and then sue them for the outstanding issues.
You will probably lose the cheque hearing, no matter what the reason.

arcon5

BREWSTER wrote: »

Thanks for help.
I understand the cheque situation however I feel I have a strong case,

You may have a strong case against them - but this is irrelevant to the law suit for a cancelled cheque.

You seem to be taking what has been said about the cheque loosely.... there is NO defence other than things like fraud for cancelling a cheque. Cheques are considered as good as cash.

Here's a useful case study from a law website

Sarginsons Law recently acted for a business client in a claim against a customer for cancelling a cheque.

The law states that a cheque is as good as cash and as such once given to some as payment for goods or services should not be stopped. If the cheque is stopped then the person or company to whom the cheque was made payable can immediately issue proceedings against the debtor.

In this particular case our client had provided services to a customer. When the work was completed the customer duly paid by cheque. However when our client tried to bank the cheque it was returned by the bank because it had been cancelled. They contacted the customer who said that he was experiencing problems with the equipment that had been installed and because of this he had cancelled the cheque. Our client tried to rectify the situation but after some weeks of discussion with the customer it was clear that he was making excuses about problems simply in order not to pay.

The client sought advice from us. We advised on the procedure to issue a claim for a dishonoured or cancelled cheque. Before starting court proceedings a "notice of dishonour" must be sent to the person that cancelled the cheque. If this notice is sent to the debtor together with a solicitors letter stating that court proceedings will be started unless full payment is received this is often enough to get them to pay.

However in this case the debtor still refused to pay so we issued court proceedings. After 14 days we applied to the court for summary judgement against the debtor. The debtor tried to argue at the hearing that he was not satisfied with our client's work. The only defence to a claim alleging that a cheque has been dishonoured or cancelled would be to allege fraud (i.e. the debtor didn't actually sign the cheque) or misrepresentation (debtor didn't realise what he was paying for). These defences are very difficult to prove and in reality are rarely ever successful.

There is no statutory or other defence to a claim for cancelling a cheque (other than fraud or misrepresentation, which in reality are very rarely applicable) because by giving someone a cheque you are essentially promising them that you will pay them. We were able to obtain judgement for our client against the debtor customer.

The advantage of this type of claim is that it is relatively quick and inexpensive and you do not open yourself up to counterclaims. The proceedings can be issued seven days after the "notice of dishonour" has been sent to the debtor.

BREWSTER

The monies owed was being used as security to ensure that they completed the work and brought the doors up standard as they have been making adjustments and replacing part to the products since they initially installed them in 2009 and still cannot make them draught free.


Looks like I have no other option but to pay to same myself additional costs.


I have also made a counter claim on the summons form for damage caused to my property and belongings, a bit of a knee jerk reaction at the time, as an allowance has been made in the overall price for the cost to cover the repairs, although they only offered me 50% of the repair bill and like a fool I agreed at the time as I thought I would get them to complete the job and get out of my life. How would I stand to proceed with this claim, Is it a pointless exercise?


Thanks again.