Does anyone know of an organisation that can help with a “Hearing of Adjustments” and subsequent Appeal hearing in the S

[kevinjplee]

Does anyone know of an organisation that can help with a “Hearing of Adjustments” and subsequent Appeal hearing in the Sheriffs Court.

 

In summer 2008 I had some work carried out by a local builder, which has turned out to be a nightmare and resulted in me suing builder in a Small Claims action in Dornoch Sheriffs Court.

 

The work consisted of erecting a shed, the roof of which blew off 6 months after completion. Building a fireplace, which caught fire and tiles fell off, and laying floor tiles which popped out of position after a couple of months.

The work was all carried out in the space of a couple of months, and to the naked eye looked OK so builder was paid in full. The prices for all jobs had been offered by builder and accepted by me.

 

The first thing which went wrong was tiles falling off fireplace and builder returned a number of times to try and rectify fault but as fast he re tiled them they fell off again. The wooden fire surround then started smouldering and had to have a metal plate fitted to dry and dissipate heat.

Tiles which had been fitted to hallway and kitchen then started “popping”.

The final straw came when the wooden roof of a block built shed blew off in a moderate wind.

 

The builder was given opportunity to repair above items but never rectified faults

 

A subsequent survey (from Chartered Surveyor) revealed that work was “..akin to that of an amateur DIYer..”

 

The case was heard at Dornoch Sheriffs court and after a false start, due to me questioning some very dodgy looking testimonials which had been submitted by Defender. He had submitted a number of letters from other customers, all in same format and using same font. In addition he produced a reference from a previous work colleague, who according to online searches, did not and had never lived at the address that was provided.

 

The Defender also produced a letter from an “expert roofer” who it turned out was defenders future son in law!

 

Both the above letters were in a very odd italic font style, the coincidence of both letters using this type style on the same day from loations 600 miles apart must be immeasurable .

 

The Sheriff sisted the case until the Police had looked into this matter.

 

When the hearing resumed he would not, and still won’t, let me see police report, and merely said that police found that nothing untoward had gone on. At no time did the Police contact me to establish what my suspicions were about these testimonials/

 

At the Proof hearing I introduced various bits of evidence including scorched shelf from fireplace, a lot of good quality photographs of shed, tiling and fireplace etc.

As I expected the Sheriff eventually ruled in Defenders favour and awarded him costs.

I represented myself whilst the defender was represented by the Citizens Advice Bureau.

 

I appealed against this decision, and in the Sheriffs stated case he (Sheriff) stated that because the builder was not a time served tradesman (he advertised himself as a “handyman/plumber) that “..he had fulfilled his part of contract and provided reasonable service as a handyman..”

 

I have since tried to obtain Legal Aid for my appeal but have been informed by SLAB that I do not qualify because it is a small claim and suggested that I approach CAB.

CAB have said that they can not act for me when they are already acting for defender.

 

Trading Standards are not interested because I have already started legal action.

 

A solicitor has quoted me £6/8000 (yes, thousand) to act

 

The Hearing of Adjustments is due to be held on 8th March 2009.

 

I have since obtained 2 written statements from other dissatisfied customers, including one who had shower installed which exploded

[IdaInFife]

where about in Ecosse are you?

[kevinjplee]

Hi Ida,

Im live in Sutherland, and case is being heard in Dornoch Sheriffs Court with Sheriff David Omand Sutherland presiding.

 

Many thanks

[IdaInFife]

this thread might help

 

http://www.consumeractiongroup.co.uk/forum/yorkshire-bank-clydesdale-bank/219283-help-clydesdale-cca-please-3.html#post2765223

[IdaInFife]

ahaa

 

helps if you read every paragraph

 

I'll ask a couple of others to have a look but i cannot hink of any that may have experience with appeals

 

do you have a law centre near you?

[seriously fed up]

This is a really difficult one, and about the only thing that comes to mind is to search about for another solicitor who may only ask for one of your legs rather than both of them. Ida's suggestion of a Law centre is a good one. It MIGHT - though this is a really long shot - be worth contacting the Law School in Aberdeen Uni - if I was going to do that I would have a look round their website to get a bit of a steer on who/ what to ask for. But that is very much a long shot.

As far as the case is concerned, having been through the first case you have more experience than me of court procedure. The book Monty always recommends is Hennessy's Civil Procedure and Practice which has a Chapter on Small Claims. I have had a look at this and there are two things that seem to me to be important -

 

1. its procedure is supposed to be informal - so I would have thought a similar sort of process to what you experienced before.
   
2. an appeal can only be on a point of law - basically that the Sheriff who heard the case first time round erred in law in coming to his decision. You will get important guidance from the Sheriff's stated case as he will have to make clear the points of law that he used in coming to the decision. You might claim either that he misapplied them or that they were not the appropriate ones, and that this caused him to come to the wrong decision. Note too that Hennessy emphasises that an appeal cannot be based on the assertion that the Sheriff believed one body of evidence (theirs) and not the other (yours). You might find this interesting LYNNE MARY TEVIOTDALE v. NORWICH UNION INSURANCE LIMITED, 23 June 2009, Sheriff Principal Brian A Lockhart, though the matter being dealt with is nothing to do with your own problem.
   

Can I be devil's advocate here on some of the issues that you raise

 

• everything that you say about the evidence presented by the builder sounds reasonable. However, re the Police, their involvement is a criminal matter and for that the burden of proof is beyond reasonable doubt and not the somewhat "lesser" burden of "balance of probability", so they may have decided not to act on that basis. Also the Sheriff initiated this not you - it might have been "your" case, but they were investigating on behalf of the Sheriff.
  
• the "expert roofer" may have been his son-in-law, but "expert roofer" is not a statement of fact - he is not for instance suggesting that he is a lecturer in roofing at the local FE College which would be factually wrong (?). Whether he is "expert" or not is a matter of opinion. On the other hand, it would be reasonable to point to the suspicious family connection.
  

What you are going to have to do in your case is to convince the appeal hearing that the Sheriff misinterpreted the law- and I am basing this purely on what is in your post - by determining that the defender had fulfilled the contract as a "handyman". Basically the other side would have been liable had he failed to provide to you what you could reasonably have expected from a "handyman". From what you say, the standard of work was the kind of thing that I might have done - my wife refers to me as a "handyman", but usually she is only kidding. I get a gold star for replacing a light bulb if you know what I mean? What the Sheriff seems to me to be saying in his decision is that

 

1. the defender didnt describe themselves as an expert (, for instance as a "time served roofer"), but as a "handyman"
   
2. the standard of work that you could expect would therefore be that much less
   
3. the standard of work delivered fell within the range of what could reasonably be expected from a less than expert contractor.
   

So basically its a simple question - what can be expected if you employ a "handyman"? What is a "handyman"? Is it your mate who comes round to help you out? If its this, then normally you wouldnt pay him (a few beers maybe, but its not a cash nexus). So, how much less in the way of quality can you expect from a handyman than a time served tradesman? This guy has purported to have some level of expertise, and the Sheriff seems to have taken the view that he provided this to you, and in that way discharged his side of the contract. It might seem to you that the quality was about as bad as it could be, but I think in the view of the Sheriff it was in the range that you could reasonably have expected. What you need to do is to undermine that view. To put it succinctly, what is the range of service quality that can reasonably be expected from a handyman in contrast to a tradesman?

The kind of places that I might look for advice here would be

 

1. Trading Standards at the Council
   
2. Maybe the Federation of Master Builders (who I would guess will have some fairly trenchant views on the provision of service by "handymen")
   

Just as an aside, down where I live there is a business with the name "the Handyman" (they mainly do kitchens, bathrooms and bedroom furniture). One of their local competitors a wee while ago put in some "knocking" advertising which read "we're not handymen, we're craftsmen". The guy who owned the Handyman was not at all happy and contacted the paper that ran the ad (and also ran his) claiming that the standard of work would be identical and that the name was just a matter of commercial convenience. So, again it brings us back to the issue of what is a handyman and just how much slack does that cut for him in terms of quality of service, relative to someone claiming a higher level of expertise (eg time served roofer). As much as the Sheriff suggested, or less?

Sorry I cant be more helpful than this, but I hope it does help a bit.

[kevinjplee]

You have raised a number of good and interesting points, will look further into the cases you mentioned.

Many thanks

 

kevin Lee

[kevinjplee]

Hi, Idainfife.

I will read through again without MP3 player on!

 

Unfortunately we do not have a Law Centre up here

 

Regards

 

Kevin Lee

[seriously fed up]

ok good. One other thing that occurred to me later on was how much less did you pay this guy than you might have paid (lets stay with this one as the comparator) a "time served roofer"? If for instance, he was half the price, then that is an argument that you could expect only half the quality (note the use of the word "argument" - you might want to disagree, but please note the point, because). On the other hand, if he cost you as much (or more?) it would be a reasonable expectation that he would deliver as much (or more) in the way of quality.

Relating quality to cost is by no means straightforward, but it is one way of thinking about it.

The other thing you might do is to research if there are other cases which deal with similar issues - reasonable care/ standards of work etc - and see if there is something there.

[kevinjplee]

Hi S.F.U.

have sent you a pm

 

Regards

 

Kevin Lee

[kevinjplee]

deleted

Edited February 16, 2010 by kevinjplee
link did not work

[seriously fed up]

the link doesnt work for me, and from the look of it, its only its location on your pc (the e drive?).

Can you scan as a conversion to pdf (go to manage attachments below when you do reply), or try something like photobucket?

[kevinjplee]

Links not working

Edited February 16, 2010 by kevinjplee

[IdaInFife]

i have unapproved the attachments as it still has all your personal details on them - if you cipe them into paint and go over any personal details and repost

[seriously fed up]

cheers Ida - easy done!

[kevinjplee]

Apologies to all for my forum ignorance.

Judgement now enclosed in correct format

[kevinjplee]

Appeal attached

Appeal.pdf

[kevinjplee]

Sheriff's stated case Attached 4-7

[kevinjplee]

Sheriff's stated case 1-3

[IdaInFife]

hi Kevin,

 

the thumbnails are too small,

 

can you upload them to photobucket and repost?

[seriously fed up]

Hi, I have had a look at your appeal doc (the pdf) but the thumbnails are really too small to read. Any chance you could scan them on to pdf as well?

[kevinjplee]

At last!

Judgement, Appeal and Stated Case now attached in edited form

sherrifs judgement.pdf

Sheriffs stated case.pdf

[kevinjplee]

Attached is my reply to Sheriff's Stated case

[kevinjplee]

Attached are the defenders reply to Sheriffs Stated case.

Pt 1, is signed by the person from S.C.A.B. who has assisted defender throughout.

In court this lady said that she would be acting and speaking on his behalf as he is "dyslexic".

 

Pt2 was wrote by this S.C.A.B. lady and and you will note that it starts at topic No 3. I contacted Dornoch Court and was infomed that this was how they received document. Page 8 onwards are just her comments on the submitted photographic exhibits

Defenders reply to stated case.pdf

[kevinjplee]

Photographs of defenders work are now at:

Flickr: kevinjplee's Photostream