Re: Please help. I am being sued through a court. How do I respond?

On Wed, 24 Oct 2007 20:48:57 -0000, fjmd1a@xxxxxxxxx wrote:

|> That was something in the expert's report. The report is referred
|> to in the particulars section of the particulars of claim as "in
|> breach of the contract the defendants failed to complete works as
|> identified in the report of X Associates (attached herewith).
|>
|
|OK. So the particulars of breach are in the expert report. That's not
|unusual, so you do have to respond to the discrete allegations in the
|report.
|
|It can be messy, that's why I like a Scott Schedule.

I understand. I will look into that.

<snip>

|Great. By the way, did you get a pre-action letter? They are supposed
|to go through the pre-action protocol which should have given you more
|time.

I don't think so. I have what their solicitor calls a "pre-action
offer of settlement" (which we did not accept, - we have no
money). But no other details are included. The only other letter
we have is one telling me that they have not removed the drawings
and it mentions that "procedures arising from your breach of
contract will follow".

|>
|> Yes. Something like: Point x of the report states that there is a
|> requirement for a mesh backing to the wall slots. This is not a
|> Requirement under Building Regulations and there is no such
|> requirement in either the drawing or the specification. Which
|> document have you used to identify this as a requirement?
|
|Close. Don't ask questions in the Defence. You aren't writing it to
|them, if anything its written as if it will be read by the court, so
|refer to them in the third person (as "the Defendants").

OK. thanks.

|You can be quite blunt: "Point x of the report is denied. There is no
|requirement for a mesh backing to the wall slots." That makes it quite
|clear what the argument is about. You could add "as alleged in point x
|of the report". Some pleaders add to that "or at all." Just to really
|squash it, but you have the idea.
|
|Just don't argue and don't ask questions. The Defence is an objective
|statement of what your position is, its not an argument in favour of
|it. That happens later.

OK. And in the meantime, I send the actual full question (as I
wrote it above) to the expert?

|> Is there any chance that, because the clients have, to date,
|> ignored our requests to return our copies of the drawings and the
|> spec which were on the site, that we can ask for the time to be
|> initiated from the point that we actually receive them?
|
|Generally, no. If they haven't complied with the pre-action protocol
|they might well be hit for costs.

Good.

Sorry to risk repeating another point or two, but they may have
been lost within a sub-thread of this:

1/
There is no copy of the contract attached to the PoC.
This, despite the first paragraph, which states:

"By a contract made 28th November 2006 between the parties (the
Contract) a copy of which is attached to these particulars the
Defendants agreed to do specified works to the Claimants home' at
XXX (the Property) for a fixed price of X."

Does this mean that their claim was not served correctly? Is
there any way I can gain more time by (for example), forcing them
to serve it again, - with the contract attached?

If it were the case that the client has lost their
signed contract, could this show up by their omission to include
it? I know that they have an emailed draft Word Doc file of the
contract itself, but should they actually be including a copy of
the original, signed paper document? I know it's a long-shot, but
I'm getting to the point that i'm grasping at straws - and if
they can't produce the signed contract it would be very useful!

2/
Bearing in mind the above, if I suspect that they don't actually
have a signed copy of the contract (because it wasn't attached as
they say it was in the first paragraph of the PoC), can I firstly
put them to prove that a contract does in fact exist? If so,
should this be my only reply - because all other points in the
PoC refer to that contract?
ie: I wouldn't want to ask them to prove that they have a signed
contract, - and then refer to items in that contract as part of
my defence of further items in the PoC. Wouldn't that compromise
my position?

.

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