Cowboy builder - Small Claims questions, please!

Sessionz

Hi,

We had a kitchen fitter in to fit our new kitchen. The short version is we now know that Checkatrade reviews are worth nothing, we have to have the kitchen refitted, and will need to replace the worktops, flooring, and several other parts of the kitchen panels etc.

We gave the kitchen fitter 2 chances to fix the flooring, he ruined it twice and admitted he could not fix it. We advised he would have to pay for replacement flooring, and for somebody to lay it.

We also gave the fitter 2 chances to fix the worktops, which he had chipped and joined terribly. After the 2nd attempt, we contacted the fitter to say it still wasn't a good enough job. At this point the fitter dropped off the keys, walked out and said we would have to negotiate before he would come back.

We kept communication open with the fitter, listed everything that was wrong, everything that would have to be re-worked by somebody else, and also listed anything that currently hadn't been finished by the fitter. After a few emails forwards and backwards, the fitter stated another 2 times that he would not be coming back.

Despite us trying to negotiate and get everything finished, the kitchen fitter took out a Money Claim against us, stating that we had ignored all his attempts at negotiation, and had refused to let him into the house to finish the job. His claim is a waste of time, we have all the proof to show none of it is true.

We do not have a written, signed contract. We do have everything in writing in emails, and a few texts also, for every stage of this whole process. We took photos regularly during the fitting process, to back up all our claims. 

I'm hoping I can get help with the Money Claim / Small Claims Court procedure, please. I have tried to read as much as I can online, but I can't get some things fully understood. Different websites vary slightly in their information.

So far I have signed up an account on the Gov.UK Money Claim site. I have taken the option to add an extra 2 weeks to the amount of time given to reply to the kitchen fitter's money claim. We intend to dispute his claim fully, and to counter-claim for the costs of all materials to be re-purchased, and the work to be carried out again.

1. CAB have emailed us and said we must first send a 'Letter before action', to offer negotiation and a dispute service before we take action. Is this still required if the kitchen fitter has already taken out a money claim against us?

2. Am I allowed to take out repair work now, or am I expected to wait until a judgment has been made?

3. I have lots of photos take to show poor quality workmanship. The problem is, each time we have a tradesperson round to quote for repairs ,they find more things that we didn't see ourselves. Would any photos taken now be too late to use when we do submit our counter claim?

4. I don't understand when a 'pack' is sent out to us by the court. Is this after we have filled in the details on the website, of our defence against the kitchen fitter's claim?

5. When do we submit actual evidence (emails, photos etc?). Is this during our defence? If so, would this be at the same time as completing our written defence? We couldn't see anywhere to do so.

Thanks for any help, our time is running out and I want to get this over with.

koalakoala

Have you paid him in full?

eskbanker

koalakoala said:

Have you paid him in full?

What would he be claiming for if they had?

DullGreyGuy

1) You dont need to offer negotiation (or even an ADR service) but you do effectively need to give an ultimatum. Often this will be pay £X within 14 day or we will litigate but can be something else. However if they have already litigated against you then you would file a counterclaim to their litigation not separate litigation.

2) You can, assuming your counterclaim is for the cost of fixing rather than injunction that he fixes it

3) Assuming no work has been done... no. Clear the longer the time has gone on since the original incident the builder could claim others have interfered or such but it comes down to the Judge to decide on the balance of probability who he believes

tacpot12

Do you have home insurance, and if so, do you have legal expenses cover. If you do, call the Legal Helpline immediately. They will answer all your questions, and should take the case to court for you. 

macman

Please don't rely on CAB for legal advice, they do their best but it's probably way out of their depth with a case like this.

Sessionz

koalakoala said:

Have you paid him in full?

Hi, he was paid a deposit of £725 for materials and skip hire, nothing else since.

Sessionz

tacpot12 said:

Do you have home insurance, and if so, do you have legal expenses cover. If you do, call the Legal Helpline immediately. They will answer all your questions, and should take the case to court for you. 

We do have home insurance, we're going to give them a call tomorrow to see if we have legal expenses cover. Thanks a lot for your suggestion!

Sessionz

DullGreyGuy said:

1) You dont need to offer negotiation (or even an ADR service) but you do effectively need to give an ultimatum. Often this will be pay £X within 14 day or we will litigate but can be something else. However if they have already litigated against you then you would file a counterclaim to their litigation not separate litigation.

Hi, that is our intention, to counterclaim. So are you saying we would have to give an ultimatum before counterclaiming?
The way it stands currently is we left the situation open to be fixed, communicated at every step, and then had the (false) money claim made against us to try and force us to pay without the work being completed. We intend to defend and counterclaim for the cost of getting everything repaired/finished.

This is where we are confused, because guides online seem to talk about what steps you need to take if making a claim, but not so much about when defending and then counterclaiming.

Sessionz

macman said:

Please don't rely on CAB for legal advice, they do their best but it's probably way out of their depth with a case like this.

Hi, we were recommended so often to speak to CAB that we thought their advice would be rock solid. I'll keep that in mind, thank you.

DullGreyGuy

Sessionz said:
This is where we are confused, because guides online seem to talk about what steps you need to take if making a claim, but not so much about when defending and then counterclaiming.

As in most cases it's the consumer litigating as you pay in advance hence most advices focus on this online.

Rules of court are defined by the Civil Procedure Rules (CPR) however judges have a reasonable high level of discretion.  The court is seen as the last resort and not the first solution. Hence if you are claiming from someone you should evidence you have tried to deal with matters outside of the court room by a LBA etc. Failure to do so doesn't invalidate your claim but may mean the judge will consider if it's appropriate to award costs or not etc. Counterclaims have a slightly lower hurdle rate to get over as the claimant has already decided to involve the court.

Sessionz said:

macman said:

Please don't rely on CAB for legal advice, they do their best but it's probably way out of their depth with a case like this.

Hi, we were recommended so often to speak to CAB that we thought their advice would be rock solid. I'll keep that in mind, thank you.

Its not, they are well intentioned and in some areas (eg benefits) their advices are better than other areas but ultimately you are speaking to a call centre volunteer in most cases and not a trained lawyer.

As a former insurance claims handler, the only thing worse than a policyholder saying they'd spoken to the CAB was them saying the police had advised.