Plumber being taken to Court

A_Geordie

Utter nonsense. Obviously there is no way to be certain how a judge will allocate a claim but as I mentioned before, band 4 is typically reserved for the most complex type of cases. Property and building disputes are generally regarded as construction projects, boundary issues, commercial landlord and tenancy disputes etc. where there are multiple issues or factors that would ordinarily require the use of expert witnesses or serious issues around the law.

CPR 26.16 Table 2 actually provides more description on the reasons why a claim might be allocated to a particular band (see below). There is no way I can see how a straightforward breach of contract for not installing a bathroom is somehow that complex that it must be a band 4. As below, band 1 is more appropriate e.g. last less than 1 day, only one issue in dispute, no expert witnesses required etc. 

If I am being honest, I think you should take a punt and try to get the judge to re-allocate the claim to the small claims track due to the inflated compensation attached to the distress and inconvenience. If you can hang on until later today/this evening, I will try to give some pointers to help you cobble something together, but I think there would be a good chance of getting it re-allocated to small claims track but if not, at least band 1 on the fast track. 

Getoffmycloud

Amazing, thank you Geordie, this is just what I thought so I am glad you agree.

Can I ask how would I ask that it be re-allocated to the smalls claim court? Would it be in the box that says why we don't agree on the same track? I have currently written the following in that box, but would welcome suggestions to change it:

This is not a complex case so should be dealt with under complexity band 1. I in fact believe that the costs in the case have been artificially inflated in order to bring it outside the scope of the small claims track in order to recover their legal fees.

I can wait until later, thank you so much for your help. I don't need to respond to the solicitor until tomorrow so later will be amazing, thank you so much.

A_Geordie

It's up to you however much you want to add, though I think if you were to keep what you've said, you may want to explain a little more why you feel the costs have been inflated. Otherwise a judge doesn't have anything to go on and may simply decide which complexity banding is best based on his/her own reading of the file. 

Suggest you hang on and I'll provide some better explanation later.

Getoffmycloud

Thank you Geordie. I will hang on; thank you so much for your help 

A_Geordie

Just following up on this. Hypothetically speaking, if I were in your husband's shoes I would probably consider doing something along the lines of the below. It is an unconventional way of doing things but as your husband is a litigant in person, he probably would get away with it. 

But just to re-iterate, this is an example and it is not the only solution. Your husband could simply keep what you have suggested or expanded a little more, it is entirely up to him, but I take no responsibility for how much of the example text he wishes to use, as I do not know the exact ins and outs of the claim so its possible what I have said does not match the details of the case.

If a continuation sheet is needed then you only need to create a word document with the title at the top something like: 

Claimant Name v Defendant Name (Claim No. XXXXX)
CONTINUATION SHEET OF FORM N181 

Question I2: 

Then continue from where you left off on question I2 but just make sure you attach Form N181 and the continuation sheet together as a single PDF if sending to the court and other side by email. There is absolutely no guarantee that any of this will work at all if your husband goes down this path or a judge may decide something entirely different, that's just the way legal proceedings go. 

As for responding to the other side, I'm not sure what has or hasn't been said but a polite response could be to simple object to the banding and the fast track at all and you will file the DQ accordingly with reasons, which they will be able to see in due course once you send it t them. 

----

On Form N181:

- Question D2 I would manually insert a checkbox and write "Small Claims Track" and tick that box. 
- Question D3 answer something like "Please refer to Question I2
- Question D4 answer "not applicable" and response in the box similar to question D3.

For question I2 I might say something like:

For the reasons given here and in the continuation sheet attached to these Directions Questionnaire, the Defendant invites the court to exercise its powers pursuant to CPR 26.18(1)(a) and re-allocate the claim to the small claims track. In the alternative, the court is invited to order an allocation hearing pursuant to CPR 26.7(5) and require the Claimant to justify the amount claimed.

The Defendant believes that the Claimant (through his legal representatives) has significantly exaggerated the compensatory damages for distress, inconvenience and peace of mind so as to bring this dispute out of what would be considered a very straightforward breach of contract claim that would ordinarily be allocated to the small claims track, into the fast track for the purposes of recovering legal costs, amounting to an abuse of process.

(Please see continuation sheet attached).

The Defendant relies on the following points: 

1. It is settled law that compensation for distress or inconvenience is generally not recoverable under contract law. In watts v Morrow [1991] 1 WLR 1921, Bingham LJ said: 

"A contract-breaker is not in general liable for any distress, frustration, anxiety, displeasure, vexation, tension or aggravation which his breach of contract may cause to the innocent party. This rule is not, I think, founded on the assumption that such reactions are not foreseeable, which they surely are or may be, but on considerations of policy.

But the rule is not absolute. Where the very object of a contract is to provide pleasure, relaxation, peace of mind or freedom from molestation, damages will be awarded if the fruit of the contract is not provided or if the contrary result is procured instead. If the law did not cater for this exceptional category of case it would be defective. A contract to survey the condition of a house for a prospective purchaser does not, however, fall within this exceptional category."

In cases not falling within this exceptional category, damages are in my view recoverable for physical inconvenience and discomfort caused by the breach and mental suffering directly related to that inconvenience and discomfort."

and Bingham LJ further stated that any sums awarded should be "restrained". 

2.  The main object of the contract was a commercial transaction for the replacement of an old bathroom with a new one. It was not intended or contemplated at any point by either party that the main object of the contract was for peace of mind. The contract was a run of the mill type bathroom installation with non-luxury goods, fixtures and fittings costing around £3,500. 

3. An amount equating to £11,500 for peace of mind (given that distress or inconvenience alone is not recoverable in contract law per Watts v Morrow) would be reserved for an extraordinary case. This is not such a case. By way of example, the Court awarded £750 in Watts v Morrow who suffered living in an extremely poor conditioned home whilst major repairs were carried out (at a cost of about £33,000) over significant period of time, and in Milner v Carnival Plc [2010] EWCA Civ 389, the court awarded the claimant £4,000 for loss of enjoyment due to an abandoned cruise holiday around the world costing £60,000. Simply put, the amount sought by the claimant is manifestly excessive and disproportionate to the injury suffered. In reality, it appears the valuation by the Claimant's legal representatives is simply disguised as disappointment that the Defendant has allegedly not completed the work according to the contract and as such, compensation for disappointment is not recoverable.

For these reasons, the Defendant believes that the Claimant is unlikely to obtain damages anywhere near the amount claimed for distress, inconvenience and peace of mind. A more realistic figure for compensatory damages for peace of mind if the Claimant were ultimately successful, is likely to be in the region of [£300-£500] for the very limited impact the breach may have had on the Claimant (if any) and the extremely short time it would have had taken to complete any remedial work.

Getoffmycloud

Thank you Geordie, this is amazing  I will send a response back to the Solicitor today and Courts tomorrow to meet the deadlines and will let you know the outcome once I hear back (not sure how long these things take).

A massive thank you for all your help and the time you have taken to respond to my messages. I can't tell you enough how much I appreciate the help.

Getoffmycloud

Hi Geordie, I'm not sure if you will see this now given the amount of time that has passed (who knew these things took so long!), but I wanted to let you know that we have finally heard back from the courts. They have sent a notice of an allocation hearing to determine, in their words:

1. Allocation to track - small claim or fast track. The parties should be aware that claims for damages for "stress and inconvenience" are limited under English law to stress and inconvenience caused by physical discomfort only.

2. Whether expert evidence 'is required'.

I just wanted to say a massive thank you to you for your help as if it weren't for you taking the time to draft your response above we wouldn't be in this position now. I am so very grateful to you for helping.

Magnolia

Getoffmycloud said:

Hi Geordie, I'm not sure if you will see this now given the amount of time that has passed (who knew these things took so long!), but I wanted to let you know that we have finally heard back from the courts. They have sent a notice of an allocation hearing to determine, in their words:

1. Allocation to track - small claim or fast track. The parties should be aware that claims for damages for "stress and inconvenience" are limited under English law to stress and inconvenience caused by physical discomfort only.

2. Whether expert evidence 'is required'.

I just wanted to say a massive thank you to you for your help as if it weren't for you taking the time to draft your response above we wouldn't be in this position now. I am so very grateful to you for helping.

@A_Geordie

A_Geordie

Great news! If I am interpreting the order correctly: 

1. The judge reviewing the papers seems to have agreed with you and is calling BS on the compensation amount. I suspect the judge already had in mind that the claim should probably be allocated to the small claims track but has ordered a hearing to allow the claimant an opportunity to argue their case and justify the amount. The part of the order that says damages for "stress and inconvenience" are limited under English law to stress and inconvenience caused by physical discomfort only is quite telling.

The court is essentially saying that the claimant cannot claim under these heads of loss for this type of claim and therefore the claimant will be expected to justify at the hearing why £11,500 is a reasonable amount of damages for the peace of mind aspect. In light of the case law that would have been pointed out in the DQ, in my view the claimant needs a miracle or pull something special out of the hat to convince the court that 3x the cost of the total contract is a justified amount where no public court record (least that I'm aware of) has given such an award of this type.

2. The judge is also questioning whether an expert report is actually necessary. There are very detailed and specific rules around the use of experts who must be independent, produce a report in the format prescribed by the rules and ultimately they owe a duty to the court and not the parties the claim. This is where your husband's knowledge and expertise is best served to explain this point and why an expert is not needed.

For example, it doesn't require an expert report to show that the pipe fittings are leaking, are not fitted correctly or that the tiles are not aligned how they should be. A much more less expensive option could be to introduce photographs/video evidence together with a witness statement from a professional plumber or whoever explaining the issues and the work needed to rectify the alleged damage or non-performance of work. The plumber can then come to court and your husband can question him/her on their statement to question their credibility and what has been said in the statement.

When is the hearing? 

Getoffmycloud

Thank you again Geordie for the above; I honestly cannot express enough gratitude for the help you have given us.

The hearing is 9 April. I will of course update you again afterwards