Builder Dispute now Court Claim Received, Advice Needed

[Mike_hawk]

I don't believe all counsel have yet got their heads around the bulk centre practice directions

 

PD 7E [moneyclaim] may be useful to you and it if only to put your mind at rest http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part07/pd_part07e see 5.7 for reference to extended service period of 5 days out of the bulk centre

 

CPR 15.4 (1)(b) describes period for filing defence http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part15#15.4

 

Guidance notes for bulk centre are here, see page 14 http://www.justice.gov.uk/downloads/courts/mcol-quickstart-guide.pdf

[Dave Support Worker]

I think you are correct there, its the extra 5 calendar days after claim is started that has flummoxed mine methinks.

 

Thanks for all the info, so I am now assured we have until one week Monday to defend etc, I hope we get the defence/counterclaim in next week as I am not entirely convinced that the court will have put the application for 28 day extension through the system (or in fact agreed it) as quickly as my solicitor thinks, despite the £80 that I have paid. Claimant wouldn't agree to the extension, that was an 'interesting' phone call.

 

Do you think I should push them to get everything in next week or by the deadline day?, they are deciding early next week if I definitely have a case for counterclaim but pretty sure they will agree I do.

 

Thanks again, my mind is now slightly more at ease.

[Mike_hawk]

I think it would be sensible to file defence and part 20 cc by Friday 21st, given the assumed conduct of the claimant and for the sake of 1 filing day I'd be inclined to get it in early.

 

Your sols should have a standard covering defence in the matter of service contracts and quotations which would cover all possibilities.

[Dave Support Worker]

Thanks for that, now to persuade my side to get a move on and sort everything this week, another fun filled week for me then.

[Dave Support Worker]

OK, so they received the forms at court and application for extension has gone off to a judge for decision. Apparently everything is now on hold until I hear back regarding this. but it could take 3 weeks!

 

Is this a good or bad thing I wonder.

[Dave Support Worker]

So a looong letter from the sol today, and a long chat afterwards.

 

They are sure one aspect of the dispute has no chance of being successful , nothing in the 'contract' to say xyz will be built in this position, so a very slim chance of a win in court despite it being obviously in the wrong position. OK I was sort of ready for this as I realise the 'contract' was vague on the actual line of the build.

 

BUT they are also unhappy to go for the demolition and rebuild option and advise only claiming for remedial work to correct some problems (maybe £2-3k), this is where I am confused because in this case the 'contract' says item will be built to a specific spec and it has not, remedial work may fix one issue which is likely to cause damage to surrounding building but will still leave a large proportion of the build not to the spec in the 'contract' and likely to cause problems in the future.

 

Methinks its legal speak for we really cant be arsed with this case and you should take the easy option, leaving me with less to pay the Claimant but not with a build which is what I originally hoped and was prepared to pay handsomely for.

 

Ho hum

 

Checkatrade you have a lot to answer for.

[steampowered]

Have a read of http://en.wikipedia.org/wiki/Ruxley_Electronics_and_Construction_Ltd_v_Forsyth. This is a very famous contract law case which may be what the solicitors are getting at. In my experience its not actually applied that much in practice but still something to be aware of.

 

Basically, Mr. F asked for a deep swimming pool because he is very tall. The builder didn't make it deep enough. The court decided that it would be unreasonable to award him the cost of redoing the whole thing to the proper depth. Instead the court awarded him some compensation for loss of use of the pool.

 

To be honest, if you are making a counterclaim anyway I think you might as well claim the whole amount. If he wants to dispute the amounts he can do so and the court will decide.

[f16]

Now is the time to instruct a "structurial engineer". To advise you (and the court) why "remeidial work" is not the way forward...

Because it's going to create X,y z later.

It might cost you at this stage, but that report could be the winner.

The insurance Sol. Might not like it but you have paid them.

I'm with steampowered... The insurance Sol. needs "To grow a pair"

[andydd]

IF remedial work can fix the issue then clearly it should be done, BUT if even after attempting to fix the issue the house will still be dangerous or unstable because the foundations are wonky then clearly it would need to come down and start again, but this is where an expert comes in, this would be a decisions taken by a building expert, the op, his solicitor , the other side and the judge are not building experts.

 

Its all very well a solicitor saying repair it, but that may be his legal opinion but hes not a builder and it may fall down a few weeks later

[f16]

IF remedial work can fix the issue then clearly it should be done, BUT if even after attempting to fix the issue the house will still be dangerous or unstable because the foundations are wonky then clearly it would need to come down and start again, but this is where an expert comes in, this would be a decisions taken by a building expert, the op, his solicitor , the other side and the judge are not building experts.

 

Its all very well a solicitor saying repair it, but that may be his legal opinion but hes not a builder and it may fall down a few weeks later

 

That is exactly what I'm saying. Get a proper report done and use it as evidence.

[steampowered]

If you want to be able to recover the costs of an expert report from the other side up to 750, as a formality you should seek permission to obtain an expert report through the Allocation Questionnaire which is the next stage after the Defence has been filed. In small claims track, use of expert report requires court permission.

[Dave Support Worker]

Thats a good point and one I shall bear in mind.

But first still have to persuade the sol that we should be going for full re-build. Have a few more trades visiting over the next few days to quote for remedial and full rebuild, one who will do a report too. Hopefully this will persuade the sol to go the whole hog.

Although they are supposed to be independent from the insurance company I am pretty sure they purse strings are held tight so it could be a battle. Suppose I must wait to see what the other contractors have to say.

 

Thanks again for all the input.

[andydd]

Well the solicitor works for you not the other way round, he is there to offer his legal opinion, if an experts view is that the whole building needs replacing thenm the solicitor should be working on that basis but clearly he should also be trying to minimise the cost and risk along the way.

[Dave Support Worker]

Nothing new to report at the moment, load more trades around to quote and all say best option is to rebuild. Extension on time to submit defence allowed by court. Another week to persuade sol that remedial work is not acceptable I suupose.

[Dave Support Worker]

Defence and counterclaim in, going for the full whack but sol not confident that will get more than cost of fix, its all legal mumbo jumbo to me but has left it open for the court to decide. Not a lot I can do now but wait for the fun to start.

[Dave Support Worker]

Allocation questionnaire received today, sol not happy as sent to me not them.

[Mike_hawk]

Allocation questionnaire received today, sol not happy as sent to me not them.

 

 

Please keep us updated Dave, there's a few of us subscribed to your thread even if it doesn't appear that anyone is looking in. Oh and, Sols are never happy

[Dave Support Worker]

Cheers Mike will do, although it could well be rather boring from here on in.

 

Got home yesterday and it wasnt the allocation questionnaire, dopey wife!, just form stating likely to be small claims and a few brief questions, one relating to mediation, directions questionnaire?

 

All sent to the sol now as directed, yet more waiting now methinks.

[Mike_hawk]

Tell me about it...... not the dopey wife bit, mine might be reading this, lol

 

The process does tend to drag on a bit, now you have counsel it may never reach the inside of the court... it's a small claim [not just in value] in the big scheme of things and the sols won't be earning out of it so they may start pushing the other side to settle by consent.

[Dave Support Worker]

Funny you should say that but I think they may have hinted at this in a very convoluted way, as long as they don't try and take the easy option. But knowing the builder, arrogant narcissist that he is, it is be very unlikely that he would admit to being wrong in any way. At least I no longer have to struggle with complicated (to me) forms and the like, it's only thanks to this forum that I didn't lose it completely when they first hit the mat.

 

And I do realise it is a very very very small matter to the courts and/or sol in the big scheme of things but when you are in the right (and there is no doubt in my mind that I am) it would be hard to 'lose'.

 

Settle by consent has offered up some interesting reading though, bloody Googling, got to stop doing that.

[Mike_hawk]

It all comes down to the bottom line for the sols, if they insure to a certain level of risk or are retained to a given value they won't go the extra mile in litigation. Most would prefer to settle at a compromised quantum and put limited resources into the case. Whether their client agrees and instructs same is another matter entirely.

[Dave Support Worker]

Should I insist that a barrister works on the case then

[steampowered]

Barristers generally don't do much work on the case, their job is basically limited to representing you in court. They often do legal opinions about the strength of a case but not sure if the insurance would cover this.

[Dave Support Worker]

Thought as much, all on the cheap then, as expected.

[genie101]

Your legal expenses policy, under which the solicitors are being paid, is not an open cheque for legal costs. The insurers will want to limit their exposure and will likely encourage a commercial settlement between the parties if one can be reached. From the sound of it, the builder might not be reasonable so the matter may go all the way to trial.

 

There will soon be a point when you are asked if you want to mediate the matter. You will need to discuss this with your solicitor but on the whole, it is worthwhile trying as if it settles on favourable terms - great, but it if doesn't settle there is nothing lost.