Small claims and county court questions

tallac

I just wanted to get clarity on something. The builder I've instructed has progressed work extremely slowly and many days they have not even showed up (I believe they have too many other projects on the go). There was no written down contract nor any agreed completion date. The project should have taken 6 months and but now it is over 12 months. I've been as patient as I can be but they keep asking for more money despite very little work progressing. I've given them a formal letter giving them "time is of the essence" along with a deadline to have all the work done by. I've given them a generous deadline for the work left and my terms for the payment plan for the remaining money that is owed.

The builder has responded to the email with bunch of details that are not all correct, a lot of waffle about things that are not really relevant, it doesn't address any of the concerns I've raised and they've suggested mediation. I strongly feel, they're are just stalling and them requesting mediation is just another way for them to stall the project further. The amount of money the builder is saying that is owed, is a around £1k to £2k. According to me, I have paid more than the work that has been done. Nothing has been written down with regards to cost of specific sub-tasks so it is very unclear.

My questions are:

1. Do I need to respond to their last email? Can I ignore their email and let the deadline come and then terminate the contract? They can have access to the site should they want to complete the work by the deadline given.
2. Do I have to accept mediation? I feel it is a massive stall tactic which is completely in the builder's favour. And thus, I do not want to mediate.
3. Given the amount is relatively small £1k to £2k, can the builder use county court (or another route other than small claims court) so that they can pursue me for this amount using a solicitor and also add on the cost of their solicitor? E.g. if they rack up £20k solicitor costs on a £2k claim, then their total claim could be £22k and thus could they go via county court? Or will they be forced to only use small claims court given the amount is only £1k to £2k (minus any solicitor fees)?

At this stage, I actually would prefer if they didn't bother trying to complete the work by the date, so that I can terminate the contract. I can then get other traders in to finish the work. If the cost to finish the work is substantially more, then I may even take the builder to small claims court for the difference.

Thanks in advance

tacpot12

You should try mediation. A professional mediator should be able to help you get your project back on track for a fair price, and will be able to spot if the builder is using mediation as a stalling tactic. The court will expect you to have tried mediation. If the mediator reports that the builder was just using it as a tactic and had no intention of trying to resolve the issue via mediation this will be a big help if it goes to court.

The builder can't bump up the costs by engaging a solicitor, but they might have a valid counter claim against you and this might push the cost above the £5000 limits for the small claims track. (There is no "Small Claims Court", there is a Small Claims Track within the County Count).   

tallac

tacpot12 said:

You should try mediation. A professional mediator should be able to help you get your project back on track for a fair price, and will be able to spot if the builder is using mediation as a stalling tactic. The court will expect you to have tried mediation. If the mediator reports that the builder was just using it as a tactic and had no intention of trying to resolve the issue via mediation this will be a big help if it goes to court.

The builder can't bump up the costs by engaging a solicitor, but they might have a valid counter claim against you and this might push the cost above the £5000 limits for the small claims track. (There is no "Small Claims Court", there is a Small Claims Track within the County Count).   

I thought small claims track was up to £10k, no?

With regards to the builder, they are a member of the Federation of Master Builders who provide a mediation service. However, reviews of the FMB's mediation service are very dire for the customer and thus they do not seem fair. If I did go down the mediation route, can I insist on a different provider for the service? Can I request that the cost of this mediation is shared 50/50?

But my ultimately preference is not to go down a mediation route, so how exposed will I be if I decline this? Or what will happen if I demand that we use an independent mediation service and demand the cost is shared?

bris

Mediation is a clever tactic because the courts actively encourage it. You refuse and ignore them till the clock runs out the courts won't be very happy.

You don't have a set time frame in place so you can't really use that as an excuse but with mediation you can bring that point up for going forward. 

You could also ask for an independent mediator using bias as a reason. Being a member of the organisation doing the mediation should be a conflict of interest.

Sandtree

tallac said:

1. Do I need to respond to their last email? Can I ignore their email and let the deadline come and then terminate the contract? They can have access to the site should they want to complete the work by the deadline given.
2. Do I have to accept mediation? I feel it is a massive stall tactic which is completely in the builder's favour. And thus, I do not want to mediate.
3. Given the amount is relatively small £1k to £2k, can the builder use county court (or another route other than small claims court) so that they can pursue me for this amount using a solicitor and also add on the cost of their solicitor? E.g. if they rack up £20k solicitor costs on a £2k claim, then their total claim could be £22k and thus could they go via county court? Or will they be forced to only use small claims court given the amount is only £1k to £2k (minus any solicitor fees)?

1) The courts expect you to act reasonably and attempt to resolve the matter out of court. The court is intended to be the last resort. Failure to do this won't prejudice if you get awarded damages or not but can prejudice how costs are dealt with... normally if you win the defendant then pays the court fees etc but the judge has the discretion to say that the court was unnecessary and the reason its come before him is because the claimant didn't follow process or make reasonable attempts to settle etc. It is fairly rare, especially in the small track, but certainly not unheard of 

2) No you dont, even if the court requests it, however its the same as above, it can have consequences on costs as above

3) There is no such thing as "small claims court"... the civil procedures are divided into 3 tracks - small, fast and multi - based on the complexity of the case for which the amount of damages sort is used as a proxy. When the claim is going ahead it will be assigned to a track and a court, almost all small track claims are held in the county court. All multi-track cases are held in the high court. Fast track can go either way. 

The track is determined by the damages being sort not legal fees added on top. 

Small - basically no legal fees can be sort (in some circumstances a very token amount can be)
Fast - there are fixed schedules of legal fees based on damages predominately
Multi - based on reasonable legal fees for the case and individually assessed. 

tallac said:

tacpot12 said:

You should try mediation. A professional mediator should be able to help you get your project back on track for a fair price, and will be able to spot if the builder is using mediation as a stalling tactic. The court will expect you to have tried mediation. If the mediator reports that the builder was just using it as a tactic and had no intention of trying to resolve the issue via mediation this will be a big help if it goes to court.

The builder can't bump up the costs by engaging a solicitor, but they might have a valid counter claim against you and this might push the cost above the £5000 limits for the small claims track. (There is no "Small Claims Court", there is a Small Claims Track within the County Count).   

I thought small claims track was up to £10k, no?

Small track is £10k for non injury, £5k for whiplash and other soft tissue and associate psych and £1k for other injuries... the £5k middle limit is a new addition this year