Legal position - paying and claiming vs defending and counterclaiming Options

[HotWater]

Hi,
I recently had a claim brought against me by a tradesperson who had done some poor work that needed rectification.

I had made it clear that I would not pay the balance for the work until it was completed but they chose to bring a claim against me for the balance.

I raised a claim with my legal insurance who initially tried to deny the claim but finally proceeded with it.

I was successful in defending the claim and also won the counterclaim which I brought for the extra cost of rectification. Rectification by other firm was approx £7000 and original balance due was £4000, so I was awarded £3000.

The one thing that I never understood was my solicitor saying, on more than one occasion, that I should have paid the balance to the tradesperson, and then brought a claim against them, rather than not paying and defending.

Given that they originally said that they thought it would be hard to enforce any judgment, it did not seem very good advice from a practical point of view (pay somebody and then get a judgment that you probably can't enforce), but I am still left wondering if it has any legal merit.

Is there a general legal principle (or procedural rule) which requires you to pay and then claim back, either if the contract is silent on the matter or expressly demands it?

Even if there is such a principle (or procedural rule), or it is written into a contract, does it make any actual difference if the court ends up deciding that the claimant owes you more than you owe them anyway?

I could understand if the claim and counterclaim were not closely related, because the court could to hear them as two different claims. However in this case, the both dealt with the exact same matter and, in fact, the claim was drafted to state that they weren't entitled to the £4000, because the rectification was more than that, and the counterclaim was just for the extra £3000.

I could also understand a suggestion that you should pay enough to make sure that you wouldn't lose the claim by a small amount (e.g. you withheld £4000 but you lose because the court decides that you should only have withheld £3500), but that also wasn't relevant in my case (solicitor agreed that the rectification cost was easily provable, and it strongly outweighed the balance amount).

I did manage to enforce the judgment in the end, but just wonder whether that particular piece of advice had merit or was just another attempt to deny the claim for legal expenses.

This post has been edited by HotWater: Wed, 13 May 2020 - 01:48

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[The Rookie]

The usual view is that that is a bad idea, by paying the judge will likely take the view that at that point in time you accepted the amount was owed, thus weakening your position.

[mickR]

I dissagree with Rookie.
Ive had exactly the same as the OP and for similar amounts.
I was advised by more than one legal expert to pay the balance and bring a claim against the builder, because not paying effectively put me in breach of contract and i would then have to defend that claim. I however decided not to pay but to persue again the builder who ignored my claim and then ceased trading. I was out of pocket by a few grand but i half expected the outcome anyway.
My argument was the payments werent for specific works but merely staged payments at certain points. They wouldnt return till i paid, i wouldnt pay till they corrected faulty work.

This was a lesson for me in contracts and i now would put my own clauses in any agreement.

[HotWater]

My argument was the payments werent for specific works but merely staged payments at certain points. They wouldnt return till i paid, i wouldnt pay till they corrected faulty work.

This was a lesson for me in contracts and i now would put my own clauses in any agreement.

Thank you. Interesting to hear your similar experience. I also had the situation were they wouldn't return until paid, and I wouldn't pay until they returned and rectified it.

In my case, the partial payment I made was not even a staged payment. Instead, during the work, I agreed to make a part payment, even though the quote stated payment in full 21 days after the work was completed.

I can see the point about both parties potentially being in breach, but it seems to make little practical difference from a procedural point of view. Whether the tradesperson claimed against me, or I claimed against them, the outcome would be the same, and at least by withholding the money you are not having to try to enforce judgment.

Certainly, even though my solicitor argued with me that I should have paid it, they were still able to draft a successful defence and counterclaim.

As long as you pay enough to ensure that you should not lose the claim, paying the whole amount still makes no sense to me.

This post has been edited by HotWater: Wed, 13 May 2020 - 13:55

[The Rookie]

I dissagree with Rookie.
Ive had exactly the same as the OP and for similar amounts.
I was advised by more than one legal expert to pay the balance and bring a claim against the builder, because not paying effectively put me in breach of contract and i would then have to defend that claim. I however decided not to pay but to persue again the builder who ignored my claim and then ceased trading. I was out of pocket by a few grand but i half expected the outcome anyway.
My argument was the payments werent for specific works but merely staged payments at certain points. They wouldnt return till i paid, i wouldnt pay till they corrected faulty work.

This was a lesson for me in contracts and i now would put my own clauses in any agreement.

So you disagree with me even though your example fully supports my position?

[mickR]

I was advised by more than one legal expert to pay the balance and bring a claim against the builder, because not paying effectively put me in breach of contract and i would then have to defend that claim.

So you disagree with me even though your example fully supports my position?

How do you make your statement below, match with breach of contract?

The usual view is that that is a bad idea, by paying the judge will likely take the view that at that point in time you accepted the amount was owed, thus weakening your position.

This post has been edited by mickR: Wed, 13 May 2020 - 19:12

[cp8759]

Is there a general legal principle (or procedural rule) which requires you to pay and then claim back, either if the contract is silent on the matter or expressly demands it?

No

The courts are quite accustomed to offsetting claims against one anther. I can't think of any reason why you'd pay and then claim back, and as it would lead to a waste of court resources I'd expect the courts to want to dissuade such a course of action. Anyone who advises that non-payment is a breach of contract and that's a reason to pay anyway doesn't know what they're talking about.

[The Rookie]

I was advised by more than one legal expert to pay the balance and bring a claim against the builder, because not paying effectively put me in breach of contract and i would then have to defend that claim.

So you disagree with me even though your example fully supports my position?

How do you make your statement below, match with breach of contract?

The usual view is that that is a bad idea, by paying the judge will likely take the view that at that point in time you accepted the amount was owed, thus weakening your position.

If he’d have paid he’d have got nothing back at all when they went under......

[Glacier2]

Martin Lewis used to advise people to pay PPC invoices and fight afterwards for a refund. A bad idea.

[mickR]

I was advised by more than one legal expert to pay the balance and bring a claim against the builder, because not paying effectively put me in breach of contract and i would then have to defend that claim.

So you disagree with me even though your example fully supports my position?

How do you make your statement below, match with breach of contract?

The usual view is that that is a bad idea, by paying the judge will likely take the view that at that point in time you accepted the amount was owed, thus weakening your position.

If he’d have paid he’d have got nothing back at all when they went under......

err did you read my original post?? that's what I said. hence why I also didn't take the solicitors advice.

This post has been edited by mickR: Wed, 13 May 2020 - 23:11

[Churchmouse]

I had made it clear that I would not pay the balance for the work until it was completed but they chose to bring a claim against me for the balance.

If one party to a contract refuses to comply with its terms, this is called a "repudiation" of the contract. The other party then has two choices: accept the repudiation, which excuses that party's own performance and allows it to sue for damages, or affirm the contract (reject the repudiation), which does not excuse its own performance, but which also allows that party to sue for damages.

When you refused to pay the balance due, you repudiated the contract, and the builder then was excused from further performance; however, you could also have argued that it had been the builder who had first repudiated the contract by refusing to complete the work, thus excusing you from paying the balance. As with many once-happy relationships, this dispute was eventually settled in court.

Those are the general legal principles relating to repudiation. So I am also puzzled why the solicitor would have suggested that you did not have a choice regarding accepting or rejecting the builder's repudiation. As others have pointed out, affirming the contract could have left you even further out of pocket; I think the result has proven that your instinct not to pay for work not done was correct.

--Churchmouse