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[SMD]

In 2010/2011, I worked as a subcontractor for a big construction firm. I was initially on 'pricework' which then changed to 'day rate' and they kept 5% of my wages as retention in case of defects. The contract states they would pay me 2.5% after practical completion (which they did - but only after threats of legal action) and the second payment would be made one year after PC.

It was well known fact that nobody ever received the second payment from this company and as expected I received a letter informing me my work was not carried out according to drawings and they would use the money owed to me to correct the work. I heard from a friend who still worked for this company that this was a generic letter that was sent to every subcontractor regardless of whether any money was owed to them!

I disputed their claim and asked them to explain how my work could not be according to drawings when it was inspected by their own supervisors and the clients agents and to provide evidence. This was in February and to date I am still waiting for their response.

My question is how do I take it from here?

[Gaffers]

Small claims Court.  But first go through the process of getting all the information received using the FOI act.  Get a hold of:

- Drawings, sing-off and client reports for your job(s)
- Ask them for number of contractors that have been and not been paid this final 2.5% over say the past 3 years
- Ask them for the amount they have had to spend to rectify jobs over the same time period.
- Any pictures showing the defects and proof of the work done to rectify them

Then if they cannot provide proof that the job was not up to the drawings/spec, or even that it was 'fixed' then tell them the final 2.5% is owed and give them 28 days to pay, after which you reserve the right to add interest and damages.  If still no payment, send them a final demand giving them 7 days to pay after which you will resort to legal action.  Then if still no money forthcoming go to the small claims court.  It costs £10 and if/when you win, the losing side have to pay that tenner.  If the judgement goes in your favour you then have the power to involve bailiffs.  It's a well-trodden route and just requires you to put a bit of time to it.

[pscocoa]

was there a dispute or grievance procedure in your contract? If there was you will need to be seen to have gone through this first I expect.

[jonathanh]

and just to add to the previous post.  Having been through small claims personally - do not be afraid of it.

personally the freedom of information (FOI) stuff is useful background but your claim will swing on the evidence of your case alone.  you have evidence to say the work was satisfactory so pursue it on that basis.  Issuse invoice then 7 day chaser then small claims.  Be polite and proactive at all times and be able to demonstrate you have invoices and chased using registered post if necessary. 

what the court will look for is if the other side have a case, that they have explained themselves to you and given you an opportunity to rectify the situation.  simply not communicating will go against them.

also there are time limite under small claims process - stick to them like glue.  if the other side fails on deadlines they will get timed out and the court can find against them

[SMD]

Thanks for the replies.

There is no grievance procedure stated in the contract.

Small claims Court.  But first go through the process of getting all the information received using the FOI act.  Get a hold of:

- Drawings, sing-off and client reports for your job(s)
I can and will request those, but why client report? To prove it was correct at the time of inspection?

- Ask them for number of contractors that have been and not been paid this final 2.5% over say the past 3 years
Can I really ask them this? Dont think I would get a reply from them 

- Ask them for the amount they have had to spend to rectify jobs over the same time period.
Already asked and will ask again

- Any pictures showing the defects and proof of the work done to rectify them
Already asked and will ask again

Then if they cannot provide proof that the job was not up to the drawings/spec, or even that it was 'fixed' then tell them the final 2.5% is owed and give them 28 days to pay, after which you reserve the right to add interest and damages.  If still no payment, send them a final demand giving them 7 days to pay after which you will resort to legal action.  Then if still no money forthcoming go to the small claims court.  It costs £10 and if/when you win, the losing side have to pay that tenner.  If the judgement goes in your favour you then have the power to involve bailiffs.  It's a well-trodden route and just requires you to put a bit of time to it.

[bigegg]

Freedom of Information Act is only for public bodies, not a private company

You would need to apply for an "either/or" order:
Either: The money.
OR: Strict proof that work was not carried out to spec.

how much you talking?
Can you get anyone else in same boat to make similar claim - in which case might be worth engaging solicitor on no win/no fee

[Sir Tigger KC]

..... go to the small claims court. It costs £10 and if/when you win, the losing side have to pay that tenner.  If the judgement goes in your favour you then have the power to involve bailiffs.  It's a well-trodden route and just requires you to put a bit of time to it.

£10 ??    It must have been 1872 when you last took someone to court!   

I took court action to recover money owed to me a couple of years ago and by the time I had my day in court I had shelled out about £300 in court fees.    The lying cheating bastards that I took the action against, ended up paying the money owed plus interest and all my costs which included travelling costs on the day!   

It cost them almost £1000 on top of what they owed me, to let me take them to court, the stupid f.........rs! 

[dbug]

Yep £10 cost shocked me too - true costs shown here - https://www.gov.uk/make-court-claim-for-money/court-fees

[Gaffers]

Yep £10 cost shocked me too - true costs shown here - https://www.gov.uk/make-court-claim-for-money/court-fees

Used to be a tenner when they were first launched.   

[SMD]

They owe me £440 so not a huge amount but others are owed a thousand or two each. I know of 5 people who are owed money and I'm certain there are many others.

So for the the next step. I will send them another letter asking them to prove the work was incorrect, by providing drawings and photos of my work and any pictures of the remedial works because simply stating it's wrong means jack.

Whats an either or order? Is this something I need to apply for through legal means or just add it in my letter? Talking of which, can someone please help me draft one? 

[bigegg]

either/or order is the bit that you ask a judge to sign - he "orders" them to do it

I can help you draft a letter - on here or via pm/email if you prefer.

[SMD]

Update

They replied to my last letter yesterday.  It appears they have dropped their allegation about my work and now are exploiting vague areas in the contract to claim the money is not due for another two years.

Here' the grey area. I worked for this firm in the Olympic Village. The build was done in two stages. Lets call these the 'build' and 'retrofit'. I worked for this company during the 'build' and the Practical Completion referred to the job being ready for the games. They are claiming it refers to the completion of the retrofit work which was only last month - 2 years after the PC for the games. The contract is vague in this area and doesn't mention specifics as I have done. To support my claim, they made the first a few months after the PC date for the games meaning that they would have paid me 2 years too early. This company does not like paying their dues let one giving it away before it's due.

I have spoken to at least four employees of this company (albeit 2 years ago. They have all since left) confirming what I am saying.

Will this stand up in court? I'm sure they will contest this and have their corporate lawyers ready. Do I stand a chance?

[biggriffin]

Reading this seems the contract covers the company for any claims 2 years after completion, and they don't want to pay anybody till the warranty on the work expires..not silly are they. But didn't help you.

[jonathanh]

I don't think making one payment could indicate they thought PC had occured as they could argue that was paid early even in error

either way as retrofit has now passed the money is payable. 

Do not give up, for the sum in question they will not buy in legal support - the amount is the same as the hourly rate of a lawyer.  My suggestion is to purpsue this as a bad debt ultimately issuing small claims -commercially unless they are principled and believe they will also recover their costs of the claim, they'll settle - doesn't make good business sense otherwise

[SMD]

This firm don’t want to pay anybody...ever!

The two year warranty period is over. The fact they made the first payment in 2011 is admission that the job was complete in 2011. They will probably claim it was made in error but the payment was only made after the threat of legal action. 

But they are trying to avoid paying out by claiming the job only just finished.

The payment wasn't made only to myself either.