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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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I'm a litigant in person and in dispute with a builder who

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I'm a litigant in person and in dispute with a builder who failed to build the foundations correctly for our extension. We sought to remedy the situation with him verbally and in writing. It all failed and we sacked him from the job. We started a small claims for around £15k for making good and other expenses (all documented). He is now counter-claiming for the remaining value of the job - around £22k. His brief quotes: Loss and damage, or lost opportunity, or quantum merit basis as justification for the counterclaim.
Surely, common sense suggests that he can only claim, and it's obviously denied, for the lost profit of the work completed rather than the entire cost of the job.
We are trying mediation next week and it would be good to have some 'legal phrases to through back at his brief to close this argument down.
Thoughts appreciated.
Submitted: 1 year ago.
Category: Law
Expert:  Ash replied 1 year ago.
Hello my name is ***** ***** I will help you with this.
At what stage are proceedings currently?
Customer: replied 1 year ago.

Hi - we've traded admin and have an allocation hearing set for the 4th June 2015. In it we are finding out how long the trial will take - I have four witnesses (including me) and he has three. we are also discussing whether an expert witness can be used.

When sacking the builder I found an independent surveyor to take photos and measurements of the site. We agree not to write the defect report as it would cost around £1200 - I did agree in writing the share the cost with the builder - they ignored the letter. So, the report can be written but his solicitor is arguing that as the site has now been built over the report is nulled as it can't be picked apart.

We have mediation planned for next Thursday.

Is that enough?

Expert:  Ash replied 1 year ago.
Ok. What is it you want to achieve?
Customer: replied 1 year ago.

I believe I'm correct in what I've done and how I went about it. I also believe is solicitor has 'sold' him a line that he can claim for the entire cost of the job he couldn't complete - we paid him £11k of £33k. His counterclaim is for £22k. My defence states this can't be the case as it includes all the nails, bricks, labour, cement etc he had no need to buy. Therefore, if hid did have a claim it would only be for the profit element of £22k - say £20%.

I would very like him (or probably his solicitor) to concede this point early on during our mediation. It means my downside (if I lost) would be closer to £10k rathe than over £30k.

I understand the counterclaim is to throw me on the the back foot so i need some decent 'ammunition' to show a judge would agree that it's profit rather than turnover that he could claim for.

So, if he concedes this point it then strengthens my hand to get him to finally admit there was some fault - as his cost incentive to winning is now greatly reduced.

Expert:  Ash replied 1 year ago.
I agree with you, it should only be loss of profit. It can't be for everything because he won't have wages, materials or equipment to pay for. Therefore whilst in theory he can try and claim it can't be equitable because he should only claim for losses had the beach not occurred,
Therefore loss of profit only.
Can I clarify anything for you about this today please?
Alex
Customer: replied 1 year ago.

Apologies - I replied to you last evening via my phone but, it appears not to have been sent.

You've agreed with me but not answered the question I posed. I know I'm right but need the ammunition (words, phrases, case law) to counter his solicitor that says he can - using the three phrases in my first post. The builder believes he can claim all £22k so continues to fight the case - a big upside if he wins. I need to show his upside is only the profit - which makes his counterclaim untenable.

So, how do I make these points to a solicitor that has a vested in terse (his fee) in telling the client something which isn't correct.

Cheers

Mark.

Expert:  Ash replied 1 year ago.
In order to claim for breach of contract a court is only going to put you in the same position as you were before any breach occurred.
Therefore if you would have made for example £1000 profit, then that is all you can claim.
It is called mitigating your loss and being able to quantify it.
Does that help?
Alex
Customer: replied 1 year ago.

Morning - yes it all makes sense. However, in my very first posting I explained that his solicitor had justified asking for the full £22k by including three different paragraphs which state simply:



  • Loss and damage

  • Lost opportunity

  • And, quantum merit basis as justification for the counterclaim


Your response answers the first bullet point but I don't know and possibly the second. How about the third - what does it mean and how to I politely tell him to get lost as it does not apply?

Cheers

Expert:  Ash replied 1 year ago.
Lost opportunity means the opportunity of doing the work. Now if it was building something like the Shard and could used on his CV I would understand it, but if its a usual build with nothing unusual then this head of claim is not justified.
Quantum merit means value of services. Again he can only claim for loss of profit as no overhead, no materials, no labour etc.
They are just trying to confuse you.
Alex
Customer: replied 1 year ago.

Excellent. Happy to leave you some lovely feedback now.

Cheers ***** ***** help.

Expert:  Ash replied 1 year ago.
Thank you. Have a good weekend.
If this answers your question might I ask you to rate my answer before you go today please, the button should be at the bottom of the screen.
If you need more help please click reply.
Alex
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience: Solicitor with 5+ years experience
Ash and other Law Specialists are ready to help you
Expert:  Ash replied 1 year ago.
Hi

I am just following up to see if there is anything else I can help with?

If this answers your question might I ask you to rate my answer before you go today please, the button should be at the bottom of the screen.

If you need more help please click reply.

Alex

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