Builder Dispute now Court Claim Received, Advice Needed

[Dave Support Worker]

Thanks and yes that pretty much sums it up, we are on a budget.

 

Mediation will be accepted when offered, must try anything although I dont expect much will come of it.

[Dave Support Worker]

Well I got the reply and Defence to Counterclaim.

 

Basically denies anything is wrong or lies about the bits that are obviously wrong, tries to say I agreed to everything being fine. States I have denied them access, etc etc.

 

Looks like they have got a cheaper sol than me , only reviews about them I can find are poor.

 

We shall see.

[Dave Support Worker]

Defence to the Defence off along with a 'without prejudice' letter to the claimant offering a solution, which I can gaurantee he wont accept but shows I am trying to mitigate my loss.

Court mediation due too.

[steampowered]

Good stuff, fingers crossed for you.

[Dave Support Worker]

Thank you.

 

One thing I did miss in their Defence, due to being a bit thick, which my sol jumped on. He has admitted to a breach in the express term of the contract, OK it's not a major point but it is a start. Also invited back to do some measurements that will show that he has breached another express term, this one should show that the lot has to be ripped up and re-built.

 

Feeling slightly more positive but still concerned that the vaguery of court and legal mumbo jumbo could turn everything around.

[steampowered]

It is important to prove exactly how breach of those terms has caused you loss. You will also need to prove how much loss you have suffered, and how much it would cost to put you in the position you would be in if the contract was properly performed. In doing this you are expected to 'mitigate your loss'.

 

If you want to go for a full re-build you will need to convince the court that the alternative option is not adequate. Otherwise the court will default to ordering the cheapest option.

[Dave Support Worker]

Thanks and yes this is in hand, will be mitigating loss by showing have been quoted for the price of a 'fix', but will be showing that this will result in a patch work of different finishes which is not what was agreed in the contract and expected.

 

However I am concerned that this will be the final judgement but we can only wait and see.

[steampowered]

Indeed. As you are in litigation anyway you might as well ask for a re-build, even if you don't actually end up getting it.

[Dave Support Worker]

Although the fix will stop any possibility of damage to surrounding area it wont make the job correct, all the trades I have had in have said it hasnt been done properly and definitely not as per the specs in the quote. In the real world it should be re-done, but the court isnt the real world is it

[steampowered]

The court is the real world. The problem is that judges are not builders and they are not construction experts. Very often people walk into a court room and they expect the judge to either be an expert on technical matters, take their word for everything, or read their mind.

 

If you want to convince the judge of something you need documentary evidence to back it up. If you want the judge to make a factual finding you need to give him evidence he can point to in his judgment to support that finding.

 

As the burden of proof is on the claimant, if no evidence is produced on a point which is contested by the Defendant, that point will be decided in favour of the Defendant.

[Dave Support Worker]

Its becoming pretty obvious my builder isnt a construction expert either, so there is hope

[steampowered]

[Dave Support Worker]

Allocated to local court.

No reply received to letters sent to claimant regarding defence.

Slow

[Kinger122]

Hello Dave Support Worker. I became aware of this thread after another poster brought it to my attention. It seems we are in a similar sort of situation, albeit mine involving a roof. I must stress I am not as experienced as others on here, but I wanted to put my opinion across as I feel it might help you.

 

 

I was new to the court process as well, and I was confident I would likely have a ruling in my favour, especially as I put in a lot of work thanks to the guys on here (some who are posting here too). I did not appoint an expert witness as I had a lot of evidence and a detailed contract which you unfortunately do not have. However to cut a long story short the judge decided that a incorrect pitch on my roof (despite manufacturer stipulations) would be acceptable if building control approved it. I feel that had I appointed an expert witness I would have achieved a different and possibly much more favourable outcome. I did not appoint one due to the risk of incurring even more losses.

 

 

Please be aware the majority of judges will probably have very little experience of technical matters such as these and therefor put a great deal of weight on an expert's report. When I was pointing out obvious flaws in the roof which even a lay person could understand the judge asked me what qualifications I had to make that assertion.

 

 

I'm not saying that you should appoint an expert witness, but be aware that even if building work is blatantly completed against manufacturer/building control instructions, and in breach of a contract, the judge can still order the builder to put the work right; even if in your and other expert's opinions the remedial work would still be unacceptable.

 

 

All the best.

 

 

EDIT: If you have the time you may find reading my thread helpful as I was clueless to the court process at the time. It is fairly long however.

Edited May 2, 2014 by Kinger122
add info

[ims21]

Just for convenience, this is the link to Kinger's thread

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?411056-Roofer-did-shoddy-work-and-has-now-filed-court-claim-against-me

 

[Dave Support Worker]

Thanks for taking the time to post, it is a shame that the judge could not or would not see sense.

You are right an expert witness would probably seal the incompetent builders fate but I have been told £700+. I am hoping the reports I have from reputable trades will suffice. The sol hasnt mentioned expert witness, I shall have to think about this.

[steampowered]

As advised in post 61, the cost can be recovered from the other side if you get court permission, up to 750. As the amount in dispute is several thousand I think it is probably worth doing.

 

What kind of reports do you have? Depending on the format they might not be given much weight if they are insufficiently detailed. They also might be disallowed in view of the rule that 'No expert may give evidence, whether written or oral, at a hearing without the permission of the court.' - http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27#27.5.

[Dave Support Worker]

Have a reasonably detailed report with drawings from a local trade. As to whether it is allowed then who knows, it will be with me on the day along with all the other paperwork just in case.

I fear it is going to be decided by whoever is best on the day infront of the judge.

[steampowered]

The difficulty is that the judge will probably know very little about building work and he will not have had the opportunity to inspect the work for himself. He will start from the position that the builder has done the work and is due payment and it will be up to you to convince him otherwise. You must not make any assumptions and must give the judge all the evidence he needs to make the finding you want.

[king12345]

Expert witness will seal the deal.

A local qualified construction builder or architect could give you a better quote for the report.

If we are talking structural problems like insufficient fundation depth, then you need a structural engineer report and they cost quite a lot

[Dave Support Worker]

You are all as always correct. The report I have is from a well respected medium size local company, initially came to look at the work and quote for fix/rebuild but went the extra mile and visited twice with more staff to measure up photo and draw plan of areas and faults. An expert report it is not, but it should show the judge the initial build is wrong.

Unfortunately other things in life are a greater priority at the moment.

[Dave Support Worker]

So on it goes, Notice from the Court of preliminary hearing, to consider special directions with regard the report detailed above as it was in the Directions Questionnaire. Sol will be attending!

 

Anything you think I should be doing to prepare for this?

[Dave Support Worker]

Apparently I dont need to take anything to the prelim, just attend.

 

Oh and areas of the build are already failing, cracks and movement to floor. I knew I wasnt going mad.

[king12345]

I really hate builders who cut corners.

They don't really save much time and money, so why do they bodge things up?

Better to do it right the first time.

I know some builders don't have a clue, but the ones who really upset me are the ones who know their trade and still, have the "that will do" attitude.

[Mike_hawk]

Apparently I dont need to take anything to the prelim, just attend.

 

Oh and areas of the build are already failing, cracks and movement to floor. I knew I wasnt going mad.

 

Morning Dave

 

I'd still take a folder with any/all docs you will be relying on for trial. If the court allows you take take a laptop or tablet [no reason it shouldn't] it may be simpler to scan everything in chronological order so you can use the find function in adobe....... much simpler than scrabbling through colour coded post-its.