Plumber being taken to Court

A_Geordie

Unfortunately, I am not sure what I can add since you say the claim is already allocated to the Fast Track which means you must be some way down the line in the legal process. It also means you will have submitted a defence and the claim against your husband will be based on what his defence to the claim says and therefore may not have been as robust as it could have been to defend the claim. 

Best I can do is probably give some pointers as to arguments your husband might make in response to the allegations. 

Firstly, the claim for £11.5k for distress and inconvenience is absolute rubbish and I suspect the solicitors acting on behalf of the customer have artificially inflated this amount in order to bring it outside the scope of the small claims track, so they can recover their legal fees. Not only is that an abuse of process but it's also a breach of their code of conduct as a regulated solicitor/law firm (assuming they are a law firm). 

The starting point is that contract law does not allow for recovery of compensation for distress and inconvenience. The exception to this rule is were the contract provides for relaxation, pleasure or enjoyment, typically found in holiday claims where the expectation of the was not at the level required. There is a holiday case that sets the precedent on claiming compensation for loss of enjoyment and in that case a couple paid for a very special, one of a kind round the world cruise for around 100 days costing about £60k (Milner & Milner v Carnival Plc [2010] EWCA Civ 389). They had some really bad issues that affected their cruise and wanted to claim £50k for loss of enjoyment of their holiday amongst other things. The court ruled they should be awarded £4k each. The court gave some guidance on what kind of compensation should be awarded based on the holiday:

Category 1: Couples whose plans to marry abroad were wrecked had received between £4,406 and £4,360
Category 2: Disappointed honeymooners had received between £321 to £1,890;
Category 3: Holiday goers on other ‘special holidays’ that were ruined had received between £264 to £1161; and
Category 4: Holiday-goers on ruined “run of the mill holidays” attracted between £83 and £876.
 
Putting that into perspective, you can maybe see why my suspicion is that the law firm have deliberately inflated the compensation for loss of enjoyment to pull it into the fast track. Based on the cost, and maybe your husband is in a better position to comment, the bathroom install is likely to be a run of the mill type situation, nothing fancy and therefore I would think that any loss of enjoyment for the use of a new bathroom in most cases are going to fall into the low-mid scale of category 4, somewhere around £200-500. 

Let's assume the worst case and the judge finds in favour of the claimant for some things but very little on the distress and inconvenience as above, I would be strongly arguing that no legal fees should be awarded at all. My reasons would be: 

1. The claim was largely made up of the compensation for the loss of enjoyment which the claimant's legal representatives have (in your opinion) deliberately inflated to take this over the line into the Fast Track and maximise their recovery of costs. Any reasonably minded law firm who conducted research when assessing the value for loss of enjoyment would never have arrived anywhere near the amount being claimed (based on the Milner v Carnival guidelines). But for this point, the claim would have most likely been allocated to the small claims track, where legal costs are not recoverable. There does not appear to be any legal authority where a court has awarded this kind of compensation for loss of enjoyment, let alone the loss of enjoyment of a bathroom being delayed for relatively short period of time than when it was supposed to be completed. Therefore, the court should treat this claim as if it should have been allocated to small claims and award no legal costs.

2. The fall back position is that the value attributed for loss of enjoyment has been substantially overstated without any reasonable justification, any legal costs awarded (if the court is minded) should be based on what might be reasonably regarded as a fair valuation based on the legal authority. So even if you were generous to allow a value into Category 3 of the guidelines Milner set out above, that would mean the total value of the claim is circa £10-£11k. There are 4 complexity bands when awarding legal costs on the fast track (1 being simple with 4 being extremely complex case) so I think this would fall into complexity band 1 as it is a straightforward breach of contract matter.

Claims over £3k and up to £10k, legal costs are £877
Claimes over £10k and up to £15k, legal costs are £1,342

3. Finally, your husband may want to protect his position by submitting a Part 36 offer. It is a formal process that needs to be followed (suggest you research this, plenty of information online) but if means that if the claimant does not beat that offer you made, they won't be able to recover their legal costs and may have to pay your husband's costs from the date the offer of settlement expired. Husband's cost would be £19 per hour, assuming he has kept a track of the time spent for him working on the claim ut if not, it would be wise to put together a costs schedule of the time spent on everything he has done.

Getoffmycloud

saajan_12 said:

Even the legal expenses is at the judge's discretion. First they have to substantially win their claim. Then the use of the solicitor has to be reasonable - eg if the legitimate part of the claim was £5k and the remainder was obviously frivolous, then it doesn't make sense to spend £20k in legals to chase this when it could have been relatively low cost in small claims. 

Thank you Saajan; that's a really good point!

Getoffmycloud

A_Geordie said:

Unfortunately, I am not sure what I can add since you say the claim is already allocated to the Fast Track which means you must be some way down the line in the legal process. It also means you will have submitted a defence and the claim against your husband will be based on what his defence to the claim says and therefore may not have been as robust as it could have been to defend the claim. 

Thank you A_Geordie; this is a really comprehensive and helpful answer; thank you so much! I feel much more reassured now

Getoffmycloud

ciderboy2009 said:

Have I got this right:

The customer was expecting to pay £9,000 for the bathroom to be installed.

They have actually paid:
- £4.5k deposit to your husband
- £2k to remedy poor workmanship and remedy failure to properly install the bathroom
- £1k to replace bathroom tiles that were poorly installed
- £1k for damage to wall and ceiling and waste removal.

So a total of £8,500.  Where is their loss?  They've actually saved £500.

Like others say - there is no way that they will get £11,500 for the reasons given.

Are you 100% sure that the message has actually come from a firm of solicitors?  It sounds like something dreamed up by somebody who has watched too much Judge Judy!

Thank you Ciderboy; this made me chuckle! Yes it did indeed come from a firm of solicitors. Honestly, if you read the letters you would laugh as they contradict themselves throughout the letter. In one instance they talk about how they had someone in to rectify the bathroom a couple of weeks after my husband left the job, but in the next sentence say they went without a toilet for three months. It honestly makes no sense and they have supplied no proof of their incurred costs yet, which I find bizarre!

Out of interest, does anyone know if they can claim for other stuff since they put the claim in? I ask because they have had several workmen in since they sent the claim through. There have been at least three different plumbers and tilers at their house since my husband has been there.

Getoffmycloud

Ergates said:

What is the cost of the bathroom suite that your husband supplied ?

Hi Ergates, it was around £3.5k

Ergates

Getoffmycloud said:

Ergates said:

What is the cost of the bathroom suite that your husband supplied ?

Hi Ergates, it was around £3.5k

So, quite clearly, they need to pay for that, which immediately knocks most of their claim for the initial £4.5 paid to you husband right out the window.

Getoffmycloud

Ergates said:

Getoffmycloud said:

Ergates said:

What is the cost of the bathroom suite that your husband supplied ?

Hi Ergates, it was around £3.5k

So, quite clearly, they need to pay for that, which immediately knocks most of their claim for the initial £4.5 paid to you husband right out the window.

Really good point again; thank you!

A_Geordie

Getoffmycloud said:

Out of interest, does anyone know if they can claim for other stuff since they put the claim in? I ask because they have had several workmen in since they sent the claim through. There have been at least three different plumbers and tilers at their house since my husband has been there.

What you and your husband really needs to do is to go through each of the allegations, correspondence and evidence you have received to date and try to counter these allegations that undermine the claim as this will help to structure the arguments at the hearing. For example (i) where they contradict themselves in correspondence as mentioned, (ii) why has the claimant got 3+ plumbers and tilers in since your husband did the work. (iii) Could that be because the customer is a serial complainer and there wasn't really anything wrong with the work by your husband, (iv) why did the customer not complain about issues with the work before getting someone else involved to "fix" these issues preventing your husband from having an opportunity to inspect/review the alleged damage or failures.

I've uploaded a template word document if you want to use to help you put together the arguments and the responses.

https://easyupload.io/t69o4q

Edit: Working link

Getoffmycloud

A_Geordie said:

Getoffmycloud said:

Out of interest, does anyone know if they can claim for other stuff since they put the claim in? I ask because they have had several workmen in since they sent the claim through. There have been at least three different plumbers and tilers at their house since my husband has been there.

What you and your husband really needs to do is to go through each of the allegations, correspondence and evidence you have received to date and try to counter these allegations that undermine the claim as this will help to structure the arguments at the hearing. For example (i) where they contradict themselves in correspondence as mentioned, (ii) why has the claimant got 3+ plumbers and tilers in since your husband did the work. (iii) Could that be because the customer is a serial complainer and there wasn't really anything wrong with the work by your husband, (iv) why did the customer not complain about issues with the work before getting someone else involved to "fix" these issues preventing your husband from having an opportunity to inspect/review the alleged damage or failures.

I've uploaded a template word document if you want to use to help you put together the arguments and the responses.

https://easyupload.io/t69o4q

Edit: Working link

Thank you. I did just as you have suggested in the response to claim forms, but your very helpful comments have given me some more points I can drop in.

He is a serial complainer apparently, which we didn't find out until afterwards. I don't know if he has taken others to court and not sure if I can even find this out.

I will definitely pick up on some of the contradictions when the claim goes to court, although some of them are tricky. As an example in his first letter he said he had told my husband he had cancer and therefore the work should have been carried out quickly and competently, then in the second letter his illness was then stated as severe osteoporosis. He lives on the same estate as us and I see him walking his rather large young dog every day that pulls him about all over the place, which doesn't quite tie in with this claim, but obviously difficult to pick up on/argue.

This is also the reason I know he has had so many other workmen in since my husband; because I pass his house and see the vans on his driveway. He has only put in a claim for one workman rectifying my husbands apparent poor work though.

It's all so odd, but has been going on since May and is obviously stressful.

Thank you so much for taking the time to reply and for all your helpful comments. You really have made me feel better and give me some more insight into the claim, which is really helpful, thank you.

Ectophile

Getoffmycloud said:

thebullsback said:

did your Husband have Insurance to protect his company from this sort of event?

Hi, yes he does have liability insurance, but they have been very unhelpful. What we didn't realise with liability insurance is that their solicitors will only take on a case if they believe there is more than 51% of chance of winning the case. They do not believe he has more than a 51% chance and therefore will not take the case on.

That's not liability insurance.  That's legal expenses cover.

If he had liability insurance, then it makes no odds what his chances of winning are.  The whole point of liability insurance is that if you make a mistake, and someone successfully sues you, then the insurance company pays out.

Go back to the insurance company and try explaining the problem again.

From my experience of such policies, the correct thing to do is to make no attempt to defend yourself.  Send all paperwork to the insurance company and let them deal with it.

But take guidance from the insurance company.  Get it wrong, and the insurance company will deny the claim and walk away.