Dispute with workman - small claims court questions

aroominyork

I have a dispute with a workman which I might need to take to small claims court. I have two questions. 1) He says he will involve lawyers - can I be made to pay their costs if I lose? 2) He says he recorded our conversations in my house. I do not believe him - and anyway recordings would help my case, not his - but can a workman record conversations without informing the other party? 

I am sure people here will advise me not to take this to court and I may let it drop, but I've made it clear I would listen to reasonable offers to settle the matter and he is not interested.

tacpot12

1) It may depend on the value of the claim; there are different rules for different value claims. If your claim is allocated to the Small Claims Track (usually the case for claims below £10,000), then normally the court will not order you to pay the other parties costs, unless you have acted improperly; either in bringing, defending or handling the case. If you follow the Civil Procedure Rules and don't bring a case that is without merit, you should not be at risk of having to pay his legal costs. 

That said, if he liability insurance, his insurers may pay to defend the claim and you will find yourself in an unfamiliar environment facing professional solicitors. If you have home insurance, with Legal Expenses cover, you will be able to get legal advice and possibly legal representation for this case, especially if the workman was involved in any structural work that might expose your building insurer to additional risk.  

2) The recorded conversations can be admitted in evidence, but you might be able to ague that they should not be admitted if you later decide that they would tend to help his case. This link offers more detail on this, and suggests that if the recordings have been made improperly, the court might penalise the party that has made the recordings: Can I record meetings or conversations secretly or without obtaining consent? - Cripps Pemberton Greenish (crippspg.co.uk)
 

Jeepers_Creepers

This is an interesting one...

A quick glance at Tacpot's link suggest that a recording taken in your home might be considered a breach or privacy, but it depends on the circumstances. If the workman genuinely thought he was being wrong-done by, and that he could only demonstrate this by a covert recording, then it's probably acceptable. If he just records everything when he's in the house, he's completely out of order... He would also, I imagine, have to present the whole recording so as to demonstrate he didn't entice you into making inappropriate comments. 

But, murky or what?!

Without giving away any personal details whatsoever, can you provide an impartial and honest and un-emotive account of what the problem is? It might be a clear case of 'bang to rights'. (For your case, I mean...:-)  ) 

And, do you have LP on your insurance as Tac asks?

Homer_home

I will be amazed if he recorded anything , more likely a scare tactic, I would promptly call his bluff and ask for proof he had especially if like you say it helps your case 

aroominyork

Homer_home said:

I will be amazed if he recorded anything , more likely a scare tactic, I would promptly call his bluff and ask for proof he had especially if like you say it helps your case 

I agree - I just wanted to check the legal situation. And if he did record the conversation and has to release the full recording, his various lines of defense will break down. 
I'm not going to relate all the details but it's only a few hundred £ and I am caught between seeing the case through in frustration that he won't make a reasonable offer to settle (and I've suggested I would take quite a low amount) and letting it go. He is also saying he will instruct lawyers, which is more nonsense since he could not charge their costs to me (in the unlikely situation he wins) and it would cost him a disproportionate amount.

Jeepers_Creepers

ARIY, you come across as a rational person, so I'm guessing you aren't unreasonable in your beliefs that this guy has done you wrong. If you are pretty certain in your mind that this is the case, then I do hope you'll pursue this.

Two reasons - first is that you believe you do have a solid case, and secondly this means that the workman is being unreasonable and - what's worse - is seemingly trying tactics that lack integrity; harassment and lies. If so, he needs firmly putting back in his box. How he's responding to your complaint is worse that simply doing a bad job or getting his sums wrong.

Contact him by a written method - email, text or actual letter - and inform him of what you intend to do. Keep it succinct and factual. Completely unemotive. 

"This is my final notice of intent to take action against you using MoneyClaim.org/Small Claims for the sum of £x for work not completed/damage/poor standard/etc - unless this is addressed by the xth of Dec (or whatever date). I have secure evidence to support my case, and would also welcome the production in full of the recordings you claim to have made during the legal process as I believe it will assist my case even further."

Then do it. It'll be a blast - I promise. (At least it will from this side of the screen...) 

If you have Legal Protection on your insurance, use them. If not, go first to CAB for full guidance on the correct procedure. I think they have standard legal letter templates on their site - use this.

Mistral001

Has he sent you an invoice that you have not paid in full?  If that is the case, it is he that will be taking you to court and not the other way about.  

aroominyork

Mistral, I paid his invoice. 

Jeepers, I've had several emails back and forth and gave him today as a deadline to make a reasonable offer - I headed all emails Without Prejudice. My only concern is that this is about a dishwasher which he rendered useless but which I no longer have for inspection. Long story short: it was under warranty (and it was a good Bosch), needed a new heat pump, engineer could not pull it out to work on it (I know it was a tight fit - it took a long time to install) and said dismantle the cupboard at the side but do not, do not, pull it out by the door; I got this handyman to dismantle the cupboard, telling him the aforementioned; instead, guess what, he pulled out the dishwasher by the door, off came the door and the wiring tore; engineer comes back, says it is wrecked and cannot be worked on, says wiring is low voltage and cannot be reconnected (which handyman insists it can) and submits a report of 'negligent or malicious damage' which I have a copy of. I have since replaced the dishwasher and had the old one taken away. Handyman does not dispute he took the door off but says it was the only way to get to the cupboard (which luckily he did not afterwards dismantle!) - there are lots of emails where he confirms what he actually did but insists he was doing me a favour. Is the lack of 'evidence' to examine a problem?

Jeepers_Creepers

That's a toughie, ARIY.

If you had some evidence that you informed this guy to NOT pull it out by the door, then you'd be home and dry. Having said that, even without this direct evidence, since you'd had the Bosch guy out immediately beforehand and he told you specifically to not do this, it would seem very unlikely you wouldn't have passed this info on to your handyman. 

Is there anything you have in writing or similar where this handyman 'admits' he did know it was the wrong thing to do? 

(On a repair issue, companies like Bosch and their authorised service agents almost without exception will NOT entertain a repair that's outwith their strict 'manual'. Gorn are the days of engineering a solution; now it's "if I can't swap this quick-detach part, then it's beyond eco repair...".)

If you cannot demonstrate that you absolutely DID tell him not to yank the door, then it might come down to 'Was pulling on the door of such an appliance a reasonable way to tackle the problem of extracting it from the space?'.  I don't know the answer, but I have had to pull out a (heavier) integrated W/M (also Bosch...) for my mil, and in no way would I have considered pulling on the door as being a method of extraction! With the W/M, opening the door gives access to the inside of the front panel/drum, and getting a secure hold on there is not an issue; it feels solid and secure and you can judge that the front of the W/M ain't going to get pulled off... Tucking at the door would have felt obviously different - you just wouldn't do it.

D/Ws are different as they tend to have larger doors, but I think it would still be obviously a poor decision to consider it capable of taking the weight of the whole machine.

I'm trying to work out what an adjudicator would conclude. IF you can demonstrate in any way that you warned this guy, then it's an open-and-shut case for you. Even if you cannot, there are two further suggestions that he judged it badly; he should have known that pulling on the door was a poor call, and also the chances are you would have told him 'Non!' since you'd been warned of this by Bosch. 

So, where does the situation lie in the 'evidence' stakes?! And what sort of compromise have you offered him? 

aroominyork

I did not offer a compromise - I asked him to make a reasonable offer. My final salvo was to suggest I would go as low as to accept a refund of his invoice (£120, which included a couple of other tasks, one of which he also botched). At court I would claim a fair bit more. 

I laid out the events in detail in my first email to him. He replied "As I explained at the time that it was impossible to remove the cabinet without first pulling the dishwasher out, because on closer inspection the cabinet could not be removed from the inside, I did this out of goodwill because you were desperate to have it removed for the engineers visit...". I replied how that was totally untrue - he never said any such thing. 

On my side of the case is that he came round a couple of days beforehand to scope the job. If I had wanted it just yanked out - as he now says he advised - I could have done that myself. Why would I pay someone else to do that?

Jumblebumble

aroominyork said:

Mistral, I paid his invoice. 

Jeepers, I've had several emails back and forth and gave him today as a deadline to make a reasonable offer - I headed all emails Without Prejudice. My only concern is that this is about a dishwasher which he rendered useless but which I no longer have for inspection. Long story short: it was under warranty (and it was a good Bosch), needed a new heat pump, engineer could not pull it out to work on it (I know it was a tight fit - it took a long time to install) and said dismantle the cupboard at the side but do not, do not, pull it out by the door; I got this handyman to dismantle the cupboard, telling him the aforementioned; instead, guess what, he pulled out the dishwasher by the door, off came the door and the wiring tore; engineer comes back, says it is wrecked and cannot be worked on, says wiring is low voltage and cannot be reconnected (which handyman insists it can) and submits a report of 'negligent or malicious damage' which I have a copy of. I have since replaced the dishwasher and had the old one taken away. Handyman does not dispute he took the door off but says it was the only way to get to the cupboard (which luckily he did not afterwards dismantle!) - there are lots of emails where he confirms what he actually did but insists he was doing me a favour. Is the lack of 'evidence' to examine a problem?

My only observation is that If I were the  engineer I would tell  the Handyman that if he is so convinced it is safe to reconnect the wiring I would have no objection to him fixing the problem himself.
I personally loath unqualified buffoons trying to tell me how to do my job.