sued my builder

Andrew.C

Hi everyone. First post as a new user. Was on here several years ago but old account seems to have vanished, as did my old email address.

Anyway, long story condensed as much as possible. Hired a builder last year via Bidvine. It all started ok and work progressed as did the incremental payments. After a while things slowed but the payments kept up with the schedule. In the end he vanished with several excuses about being back soon, sore back, my yak died, etc. After 5 weeks of lies I demanded the return of my keys and the money paid for work not started. That is the last I heard from him.

Now it gets a bit complex. He advertises as a limited company. (Net worth according to Company's house is £161) However, no contract with that company was signed. All money was paid directly into his personal account via BACS. All receipts for materials and skips were in his name and not his company. His records show that none of the money paid to him showed up on his company filing for the year. I had a headache trying to get the skip hire company to pick the blasted thing up after he absconded.

So, I sent him a demand for repayment and return of keys. He ignored it. As his company is really a shell and he operated as a sole trader with the money paid to him, the advice I was given was to claim against him personally and not his limited company.
I filed a money claim online for just under £5k. He ignored it.
I filed for a default judgement. He ignored it.
I got the judgement and he now has a CCJ against him. He ignored it.
Just before it could be transferred to High Court for enforcement he woke up and has filed an application to have the judgement set aside. He is stating that my claim should have been against his company. The court has already seen fit to ignore his case for setting aside without a hearing as he is claiming I paid the company but my claim explicitly states the money was paid directly to his personal account. I have bank records as well as the email from him with the banking details that show the account holder.
Now I get my day in court.

What I'm asking of the forum is, are there any precedents or others with similar experiences that can provide me with more ammo against his application. I know enough of Canadian law that I would have him both ways as either it was him or fraudulent misrepresentation by his company, which removed the "limited" from his liability. Sadly not quite the case in the UK as I understand.

JJ_Egan

Legal Beagles forum may be more clued up on the law.

steampowered

OK, so it sounds like a court hearing has been booked to deal with the Defendant's application to set aside the default judgment issued against him. Is that correct?

The proper way of doing things would be to prepare a witness statement explaining why you oppose the application.

This needs to cover:
1) Why the claim was issued against the builder personally
2) That he was aware of the claim against him, but failed to file a defence
3) If applicable, that he delayed in filing the set aside application. The court rules require a set aside application to be made "promptly" (generally meaning within a month or so of the judgment being issued).

It is important to understand that this is a set aside hearing. It is not a full hearing. This is a procedural hearing. Hence, points (2) and (3) are actually more critical for a set aside application, than point (1).

If you start arguing only about who the right defendant is, that starts leading the judge down the path of thinking that a full hearing ought to be booked for those issues to be properly resolved, rather than at a procedural set aside hearing.

It will be very helpful if you can prove that the builder was aware of the case against him, and that he was served with the claim form / CCJ. Are you able to prove that?

It is essential that you do turn up to court on the day.

If you wish, you could have a go at seeking litigant in person costs. It sounds like there is a good chance he may not even turn up, given the disrespect he has shown to the court process so far.

You could try to claim litigant in person costs on the basis of unreasonable behaviour for the time spent preparing for and attending the set aside hearing - particularly if he doesn't turn up.

TW1234

In his set aside application the builder will have to give some evidence that if the claim were retried, there was some prospect (even if only very slight) of him having a defence to your original claim that might (not would) be allowed.
This will open you to his statement that you have sued the wrong defendent (ie him personally rather than the company) so it will be wise to obtain his grounds for application to set aside and if necessary explaining why they are not indicative of of any success. He may(stupidly) give those as his only reason for application.

CorrineCoo

Whilst I can't help with this case, for future ref when we worked with a builder we went with them to the builders yard shop and purchased all the stuff they needed direct leaving only their manual labour to pay incrementally so if they !!!!!! off they don't get paid for what they haven't done and you can bring in someone new to use the stuff YOU have bought to finish the job.
(Before starting have back ups 1st choice builder, 2nd choice etc)

Of course not everyone will agree to this but you'd have to ask them why not. What do they have to lose unless they are intending to cream money off from the purchases with dodgy reciepts. Plus if they won't do this, don't work with them. It saves you future time, stress and money. I built a !!!!!!! house this way, so it's possible! Good luck with your case.

Andrew.C

Good morning and thank you all for the excellent advice. I've done a lot of digging and had several legal suggestions but these replies are the perfect sanity check and in some ways more comprehensive. At least I know I'm going down the right route.

JJ: Thanks. Will look at Legal Beagles further. Hadn't heard of them before.

SteamPower: Thank you. Yes he ignored everything until after the CCJ was registered. Most likely he went to take out credit somewhere and got scuppered. Sadly his application was just under the 30 day threshold. Your suggestion to stress #2 and #3 over point #1 is interesting. We know he got all the applications. The address was confirmed and everything was sent via the money claim process. I'm thinking a 2 pronged rebuttal stressing his lack of defence as primary reason, and the only thing on his application for setting aside is a statement about the claim should be against his company as they were the ones paid. (false statement which his own emails and my banking records refute)

I have a distinct feeling that he won't show up and this is just one more stalling tactic on his part. Actually I think he'd hoped the whole thing would be set aside just on his application. He isn't very bright as when he ordered the steel beams for the chimney removal he read the drawing backwards and had the flange put on the wrong piece. That cost him over £500. I'm not sure if I can add more litigant in person costs after the judgement. I will look into it.

TW1234: Thank you as well. A copy of his application was attached to the notice of hearing. In his application for setting aside, he mentions nothing about the work, no dispute about the actual judgement but only that the judgement should have been against his company as "all monies were payd into my company, L******** K*******. " Yes, stupidly, that was his only reason for setting aside. Not that he didn't receive the initial claim, or that any of the claim was baseless, but only who I claimed against.

CorrinneCoo: Very sound advise. In this case, we had sourced and paid for most of the materials. (£45k worth) Kitchen, bathroom, flooring, tiles, fireplace, etc. The only materials he supplied were things like plaster, plaster board, plumbing & electrical consumables, and the stair components. It is the latter that has left us out £950. The bulk of the loss is in labour and extra expenses. Lock changes, skip disposal, extended storage costs. The really stupid thing is another 6 or 7 days work and he would have completed everything.

Now to sit back and wait until November.

marlot

Andrew.C wrote: »

...His records show that none of the money paid to him showed up on his company filing for the year

This is great evidence.



If he wins the set aside then report him to HMRC, based on his own evidence.

TW1234

Good!
If you can succinctly show your proof that he did not use his company, you will be well placed.
Your costs are best claimed before the hearing as a further hearing could be required to deal with them if raised later and would probably not be allowed

Pennywise

Andrew.C wrote: »

His records show that none of the money paid to him showed up on his company filing for the year.

How do you know that? The only publicly available accounts (Companies House) don't show anywhere near that kind of detail. Do you have access to some other documentation?

m0bov

Have you contacted Inland Revenue? I suspect he's not declared any of this incoming.

TW1234

"I'm thinking a 2 pronged rebuttal stressing his lack of defence as primary reason, and the only thing on his application for".

Tactically better to demonstrate first that he had no reason not to defend the case by presenting his defence at the original hearing. This should "encourage" the judge to think that court time and authority is being wasted.
Then try to demonstrate that there would be no possibility of success even if more time were allocated. This gives the judge a "reason" to be harsh with him!