why do the courts do that?

[Christine Hough]

Hi,
I have been sued for a bill for work which was never finished and very not fit for purpose.

The claimant just went on moneyclaim site with no warning and first I knew was when I received the summons.
I lodged a defense which clearly said, not on time, still not workable and not fit for purpose. The claim was referred to their local court.
On the allocation questionnaire I requested somewhere nearer to me and have had it referred to a court near me ...

but the judge has disallowed an expert witness.

How else can I show how bad the work was (ps its not finished even now!) I have been told to appeal for an expert but wondered if anyone else has had similar?

Thanks

[Antonia @limeone.com]

It sounds like the case is in the small claims, and therefore normally the cases are settled on the evidence of the parties and photographic evidence. Is the case below
£5K in value? The reasoning of the court is that the appointment of an expert incurs costs that are generally not recoverable and increases the time needed for the hearing itself. Small cases are dealt with expediently if possible.

If so it would be better to wait for the outcome of the hearing and if the hearing is flawed based on the lack of an expert you may have grounds for an appeal, it may also be clear at that hearing that there is a requirement for one and the court will then order their appointment and deal with the issue of their costs.

[Christine Hough]

Its in fast track... about £7k
Thanks for your reply

[Christine Hough]

Won't an appeal be even more expensive?

[Astaroth]

The appeal itself costs but the loser has to pay it so if you are confident in winning....

[obscure]

So, get lots of detailed photos of the state of the work, a copy of the specification/agreement listing what work should have been done and a list of what work has actually been done and any problems with it. That should probably be enough evidence.

[Christine Hough]

Yes I have lots of evidence if I have the opportunity talk the judge through it.

I have no doubt at all about the justice of the case. But thought that it would be up to an expert to say that.

The development is completely unusable and on one email reply from the MD he just skirts the issue saying he doesn't understand and so asked a 'technician' to contact me, ... which of course he didn't do. But it is clearly beyond their ability.
But then I cannot understand why they would even take me to court given that I am the customer and they have to prove their case.
Thanks for your replies. It is great to feel less alone!

[Jezclayton]

But then I cannot understand why they would even take me to court given that I am the customer and they have to prove their case.

I guess he's taking you to Court because he thinks you owe him money and feels he has a fair chance of winning his claim. Unfortunately, the fact that you're the customer and that the builder has to prove their case isn't going to prove much of a defence, since in court the customer isn't always right.

As suggested by other contributors, I wouldn't worry too much about the expert witness as the Court is just trying to keep costs down should you lose. Also experts don't deal in justice, just the facts as they see them. Lawyers don't deal in justice either, just the law.

What you do need to do is gather all your evidence carefully and be precise as to why it is unsatisfactory. Once done, be frank and ask yourself is it just unsatisfactory in your eyes or would it be considered unsatisfactory to a lay person. As an example, I have known situations where a customer regarded a decorating job as unsatisfactory because there were visible brush strokes, or another where an oak staircase was rejected because of the presence of a knot. In both cases the customer was convinced they were in the right but lost in court and had to bear considerable costs.

Even though I am in the construction business, please don't think I am taking sides and suggesting that you don't have a valid case. I haven't seen the evidence to determine that. What I am saying is do the necessary work to give yourself the best chance of winning, but be aware you could lose.

Best of luck.

[FPB-advice]

I have been sued for a bill for work which was never finished and very not fit for purpose.
The claimant just went on moneyclaim site with no warning and first I knew was when I received the summons.

I am somewhat bewildered how this has happened, you are saying the supplier sent you a bill for finished work, and that neither you contacted them to advise of poor quality/unfinished, nor they contacted you to see why you hadn't paid? seems most odd.
If you have not contested the invoice then the supplier would have a procedure, could an lba have been sent but lost in post?
If you had contested, did you put this in writing?

[Jezclayton]

In case the original poster doesn't know, an lba is a Letter Before Action.

Many trades use an online debt recovery firm and it is normal practice (not compulsory) that an LBA is sent with either three or seven days to respond prior to proceedings being commenced.

[Antonia @limeone.com]

Non issue of a LBA is a good way to get the court awarding costs to the other side as the court deems issue should be a last resort after attempt to settle matters.

[Christine Hough]

Just to clear things up.
Yes there were three weeks when I made it very clear that the work was unusable, and little progress was made to rectify it although a couple of days before they filed, they did send me a list of what they were still going to do. However I had made 'time of the essence' before that , it was already over 2 months late and realistically the date I gave them was the very last date when it could be promoted this year.

No they did not send an lba and I doubt that one was lost in the post, although cannot prove that but they have never said to me that they sent one. They do not have systems!

Two big issues remain which make the whole thing unusable, one was on their list as a fix, but would not have been acceptable to me, and the other they are saying was not in the spec, although that is rather like saying ' you specified alloy wheels on your car but did not specify they had to connect to the steering'. The rest is a case of incompetencies, rather than the brush strokes illustration above it is a case of changing the colour half way down the banister!

I don't want to go into too much detail in a public forum. And as I say I am 100% on the justice of the case, but I am nervous about the courts because as Jezclayton says "Lawyers don't deal in justice either, just the law."

[Jezclayton]

I hope you don't mind me playing the devil's advocate once more. It is in your interests, as the more angles you consider the better prepared you will be for your hearing.

You mention a period of three weeks during which you registered your dissatisfaction and little progress was made. Little progress does however suggest some progress. You also mention a list of additional items that the builders were offering to do. This was also a positive step and suggests that the builders were at least making an effort to move things forward.

You use the phrase "time of the essence". To be honest, every customer wants the job done yesterday. Unless a specified completion date is agreed in the contract, which would normally be accompanied by penalty clauses, time of the essence really means as quick as you can.

Antonia seems to indicate failure to send an LBA could actually work in the favour of the builder, and be a clever tactic as opposed to a lack of systems. I guess by not sending the LBA they are still affording you the opportunity to discuss a remedy as opposed to shutting the door. Is this not positive?

You mention two major issues outstanding, One of these they have offered to fix but you find the method unacceptable. The second is a dispute over the specification. With regards to the unacceptable fix, did you offer a realistic alternative or just intimate that you weren't going to pay? As for the specification dispute, are you saying that it isn’t in the written specification/quote but the builder should have known it was what you wanted anyhow?

You mention incompetencies. Changing colour half way down a banister is subjective and easily fixed in any case. Do bear in mind, colour mismatch is often an issue and in many cases (particularly with light colours) is to do with reflections off other surfaces and not the finish itself.

On the bright side, issuing proceedings can just be a way of setting a deadline within which to get matters resolved. You may think this unjust, but if agreement cannot be reached towards completion of the project and you are withholding a substantial amount of money, what alternative would you suggest?

As I said before, I'm just playing devil's advocate and don't know the full facts behind your particular situation so I'm not saying you are in the wrong.

You mentioned previously that the Court wouldn't allow an expert witness. That doesn't mean you can't seek a second opinion from an expert of your choice. Where such opinion is favorable, I have often seen it introduced into court by way of comment - "I think this represents a breach of Building Regulations, a view shared by my local Buildings Inspector". The expert you quote may or may not been seen as independent, but it still reinforces your argument.

Best of luck.

[Christine Hough]

I hope you don't mind me playing the devil's advocate once more. It is in your interests, as the more angles you consider the better prepared you will be for your hearing.
I know, and am grateful, although difficult as I don't feel it is right to give the exact particulars here.
Original completion date was mid Oct, agreed at start of contract, Once this was missed I was strung along with 'just around the corner' comments but did not get to see the product. When I first saw it at beginning of Jan it was quite a shock! I made time of the essence to a particular date, three weeks later which was the last time this year I could promote it. They had said it was finished and already invoiced, although in fact there was a whole section not even started at that time.
I used the colour change analogy just to show that the general standard of work showed they did not know what they were doing. And they claimed it had been inspected internally.
I am appealing about the expert witness because it gives them (experts in their field) an unfair advantage over me who is not an expert in that field and have now found the court rules to back up my point. But it is as I said before not just not up to standard but unusable.
I don't think the MD was too interested in making the product work, just saying it was delivered and therefore payment due. He just wrote he didn't understand the detail of what was wrong! I am sure the missing LBA was nothing to do with allowing time for discussion, in fact an LBA has the effect of producing dialogue.
I am sure that if I had paid it would have been an interminable argument to get them to finish off when there was no money incentive. And in the meanwhile it has set my business right back and cost a great deal (£1000's) in advertising something which we did not have.
Got the hearing date today.. end of August, but need to get the evidence together much sooner.

[FPB-advice]

You don't necessarily need an expert witness, purely an expert to cast his eye over the product and give his considered opinion of its fitness for purpose and general quality.

[Jezclayton]

Christine.

I am beginning to feel cautiously confident for you at the moment.

I actually despise court action, especially in the construction/manufacturing sector, because in most cases it could have been dealt with otherwise, but for the intransigence of one party. There is nothing more I hate than to see a customer lumbered with a debt for legal fees. If I lose a case, it is tempered by the fact that it is actually the company that pays, not me personally, losses are offset against Corporation tax and I always gain valuable experience, quite often at a cheaper rate than the same experience could be bought from a professional training company. If the customer loses, it is straight out of their post tax income. Ouch!

It is our policy as a company that we will never take legal action against a customer unless they have refused all reasonable attempts to settle the matter. I am of course always required to act in the best interests of the Company.

I am beginning to understand a bit more about your case now and recognise your frustration at not being able to be more specific about the end product (the clue is in your signature). I also see your concern about not having an expert witness available. As per the previous post from the FPB and my earlier suggestion, employ an expert in any case. You could still even approach the contractor and offer the appointment of a mutually agreeable expert, with a view to resolving this outside court. It doesn't matter if they decline. At least it shows a willingness to negotiate on your behalf.

If this does get to court, they may well seek independent opinion if they feel this is necessary, i.e. they are not suitably qualified to rule on the matter in hand.

I had a similar case, whereby the Court postponed final judgment and ordered both myself and the Defendant to either agree to the appointment of an expert or settle in my favour. In this case the Defendant chose to settle the claim.

Whatever you do, keep an open mind and eliminate any doubts you have.

Best of luck.