Please don't treat this as being dismissive – but I don't need to understand what the dispute is about. All I need to do is to accept your position – whether it is right or wrong. I'm not here to act as a building arbitrator. You don't need to link the pictures.

Not at all, I understand your point and agree the focus needs to be on the actual handling of the case

Obtaining quotations has been tricky unfortunately. This is because I need to speak with companies who 1. fit/have experience with the same system and 2. willing to consider the remedial work and maintain the guarantees.

I have only managed to obtain one quotation so far from a reputable company.

It will be difficult to bring a proper claim forward with only one quote.

Although it may not be justified to claim for the entire system cost, it almost proves impossible to find companies willing to carry out the remedial work, understandably so.

On the other hand I have enough quotes from expert witnesses to include.

Well if you can only get one quote and there are solid practical reasons for that, then it seems reasonable to me to go ahead on the basis of one quote but explained very clearly the reason why you haven't been able to find other people.

You could also employ little tactic and that is to let your defendants have a copy of the quotation you have received and explained to them the reason why you haven't managed to obtain other quotes and invite them to recommend other companies who they consider have the right level of expertise and experience and who are able to meet the criteria that you are setting – that they are prepared to look at the work from a remedial point of view and also maintain the guarantees.

That brings it nicely out into the open and later on if they want to challenge you on the basis that you have only received one quote, you are able to point out that even they were unable to identify other companies. Before that I would go to the professional association and see who else they want to recommend.

Of course the expert witnesses are extremely useful in establishing liability. However, the testimony of expert witnesses will not be sufficient to justify the amount of money you want to claim. You need the quotes for that. On the other hand, are the expert witnesses able to say that the work should be completely redone, or that it can be made good – in other words are they able to recommend a preferred course of action. If they are all saying that the existing work has to be scrapped then that will then justify your claim for a new job to be done. In that case you will need to get quotes for the new job. If the expert witnesses are all prepared to say that the existing work can be made good, then that will inform your claim and you will have to settle for that.

Thank you for your input again.

All the suppliers are coming through direct communication with the factory that makes the system. Proximity to address is a factor but I have phoned up companies up to 20 miles away. The problem is that as soon as another company touches the system, guarantees from this company would be void.

I find your suggestion to invite the other party for quotations of the same criteria as brilliant. I wonder if they would try to produce some cheap self-quotation...

The expert witness states they will also identify the remedial costs. If all fails and proceedings are filed it will become an option provided the other party is fully informed and rejected all options.

Would it be a good or a bad practice to disclose some strong evidence to the other party in the notice?

Would it be a good or a bad practice to disclose some strong evidence to the other party in the notice?

The days of ambushing the other side with “killer evidence”, in court, on the day, are gone.

Disclosure REQUIRES you to disclose evidence (both ‘good’ and ‘bad’ for your claim).

If you don’t disclose ‘bad for you’ evidence and it comes out: expect to get hits for costs on an indemnity basis (and lose any “no win, no fee” insurance if on a NWNF case)

The risk for you not disclosing your ‘good’ / “strong” evidence is that when you try to “pull it out of a hat” at trial, the other side points out it hadn’t been disclosed and applies to have it disallowed because you were under a DUTY to disclose it. Unless you can come up with a cast-iron reason why it wasn’t disclosed, expect it to be excluded.

[so, not “I’ve only just become aware of it” where the answer is “should have looked harder before going to trial”, but e.g.

“I’ve only just become aware of it, because the other side has conspired to deliberately hide it”, where it might be allowed to be heard as evidence!]

If it is so strongly supportive of your case why would you dream of hiding it?

It might persuade them to settle before trial if disclosed, and likely you wouldn’t be able to rely on it if not disclosed.

Unless this is small claims track (what is the value?) you may be better involving a solicitor if you are even considering making “schoolboy errors” like not disclosing evidence.

 

I find your suggestion to invite the other party for quotations of the same criteria as brilliant. I wonder if they would try to produce some cheap self-quotation...

 

I'm not sure that I suggested that the other party should be invited to provide a quotation – or at least it wasn't my intention. I certainly think that they should be kept informed of the process and given site of the information you have – but I agree that to ask them to quote would be to invite trouble because as you suggest, there is a serious chance that they would under quote and then use that as an issue in any court proceedings.

The days of ambushing the other side with “killer evidence”, in court, on the day, are gone.

You may have misread my sentence or I could have perhaps typed it better. I did not suggest of concealing evidence from the other side. I was simply asking for advice if to present all the bulk of evidence in the notice and convince the other side not to go to court as you suggested. Which you have answered and I thank you for that.

There is not much to disclose, dispute party has been invited and measured the system on site, they had the opportunity to review the facts for months. They have already received a lot of photos and measurements together with the invite to review their own work. I cannot imagine a court finding that their opportunity to respond or take action was impeded.

The only unknown is what an expert witness report would conclude if it comes to that. But on the remedy side it is pretty much a known, several companies who know the job have all suggested the same way of repaid (but not wanting to quote for it).

I'm not sure that I suggested that the other party should be invited to provide a quotation – or at least it wasn't my intention. I certainly think that they should be kept informed of the process and given site of the information you have – but I agree that to ask them to quote would be to invite trouble because as you suggest, there is a serious chance that they would under quote and then use that as an issue in any court proceedings.

Sorry, I didn't mean the other party themselves in this line but the part of "invite them to recommend other companies who they consider have the right level of expertise and experience and who are able to meet the criteria that you are setting – that they are prepared to look at the work from a remedial point of view and also maintain the guarantees."

I certainly would not want to touch this company with a bargepole after this.

The notice has been sent, including facts, contract and communications summary followed by claim and quotes. There is no response yet, a few more days left.

In hindsight I would have sent as recorded delivery although I read there is no legal requirement. Proof of postage has been retained however.

One concern if matters proceed is they may try to limit costs on their end by using our previous communication for settlement at a lower amount. This was by email and not marked as "without prejudice".

I have also read that tradesmen do not have an automatic right to return on site.

It appears that matters of defect or breach of contract beyond reasonable time after completion are to be settled by the party at fault paying compensation for remedial works. They of course did not return to investigate for some 4 months after reporting...and refused covering the full works after.

It appears that they completely disregarded the notice, the 14 day period has elapsed and there is no acknowledgement or response.

In the notice I allowed 14 days for them to reply and to also decide on the quotes for the expert witness or provide measurements.

I am technically in a position to instruct an expert witness but before moving forward I wanted to ensure the process. The notice was sent to the company address printed on the invoice and also as registered in the companies house. I suspect they may argue they never received it but my understanding is that notice has been served.

Now, if an expert witness is involved this is automatically going to lead to a claim in order to recover the cost. However I have read that small claims will need to approve the expert witness to testify first. What happens in case the expert is not accepted at a later stage? In my notice I allowed 14 days for a response before inviting the expert witness with the better quote.

I also added a second line that 14 days will be allowed for them to appraise the remedial quotes and initiate proceedings. Looking at this with a fresh pair of eyes, I could have worded better but it does not necessarily suggest "further" 14 days. I was just following BankFodder's advice to allow 14 and 14 day periods.

Considering the length of communications with these people and how unprofessionally they have handled this, I cannot justify waiting any longer for them to respond before starting the claim since 14 days have passed. Everything is in place, they received time, quotes and clear facts of communications. Can this in any way seen as not following Civil Procedure and affect the claim submission?

Also, I am considering to start proceedings and call the expert witness due process after confirming approval with the court, if/when it gets to that point? My question here is what would be the best way to "pro-actively" include their costs in the claim. Add it as 'expert witness fees (if required)' ?

Any thoughts on next steps would be most welcome.

You can add the expert witness costs to your claim, worst case scenario the judge will not include that in your pay out.

You should consider that an expert report will make your case stronger, so even if you don't recover this cost, it's worth it imo.

You can add the expert witness costs to your claim, worst case scenario the judge will not include that in your pay out.

You should consider that an expert report will make your case stronger, so even if you don't recover this cost, it's worth it imo.

Many thanks for your input.

The only confusing part is on the claim, I am preparing to file a claim through money claim online. The cost of the expert is not fixed but depends on the hours spent.

How would you enter this figure?

I suppose the report would need to be produced first and then submit a claim is easier...

ask the person providing the info how much they charge

You do not detail/refer to expert witness details on the initial claim...thats for the Directions Questionnaire (N181) at allocation stage.

There you will be expected to list the expert/s and provide Justification for expert and estimate of costs.

Regards

Andy

You do not detail/refer to expert witness details on the initial claim...thats for the Directions Questionnaire (N181) at allocation stage.

 

There you will be expected to list the expert/s and provide Justification for expert and estimate of costs.

 

Regards

 

Andy

Thanks for clarifying this part. If I understand correctly, first I have to initiate proceedings and instruct the expert after the questionnaire?

I am caught in a dilemma of instructing the expert too early (and costs not allowed at a later stage) or making the case less strong without an independent report.

I talked to the surveyor and he believes procedure has been followed, so he can be instructed. But proposed to send a final email to the other party giving 7 days to agree or provide measurements. However this has already been done with the notice which has been forthcoming for some months now.

Of course I want to be 100% confident procedure is followed and there are no mistakes to be used by the other side later on. Can the company argue they have not received the notice?

No.... instruct the expert pre claim as that will be what your claim is based on...... and detail at DQ stage (Section E )

Send all correspondence signed for...then there is no doubt.

Send all correspondence signed for...then there is no doubt.

Yes, in hindsight I could have done that. I have read that tracked delivery needs to be signed for, so in any case the other party refuse to sign it sending 1st class is deemed as served (I have retained the receipt with address)

I never received a recorded notice myself before, as things stand does the other party have any legal grounds to claim they did not receive the notice?

I always send this sort of things recorded delivery.

If they refuse to sign for it the postman will make a note which will then be on the website.

You will also get the letter back with stickers on it.

At this point you send it 1st class and obtain proof of posting.

Then send them an email explaining what happened with scanned failed delivery and proof of posting.

The judje won't be impressed with their refusal to sign.

Ok it sounds like I should have executed this step via recorded delivery.

What would you recommend in terms of going forward?

Send them an email with a 7 day deadline attaching proof of posting of the letter notice and anything that was in the notice, or re-send the notice via recorded post and start the counting all over?

I emailed the notice plus proof of postage and offered a 7 day courtesy deadline for them to respond.

The response came shortly after on the same unprofessional tones and reassures me they ignored the postal notice deliberately.

They said "we completely disagree with your views", no measurements shared from their survey, no facts or evidence whatsoever.

They accept no responsibility and again claim that because the floor is slightly offset they have no obligation to comply with our contract for the track height.

I am seriously failing to understand the line of argument of these people, a hollow argument/ Even if the floor was perfect to the millimeter the track is still off by a margin of over 1 centimetre that the expert witness deems not acceptable from our discussion.

At this point they completely disagree to any costs and again support they are offereing a good-will gesture which is "really fair to me". They have brought up that I was prepared to accept compensation at a lower amount (which they rejected by the way) and therefore "I have insulted them" because I am only just after money. The quotes and preparation show otherwise, however this is the only point that I know they will try to bring up in court.

It goes on and on under personal tone and close by saying if they keep receiving "threats" they will just ignore me and pass on to their "legal department to deal with it". That same legal department has allegedly reassured them they have "acted in the correct procedure".

It is rather challenging to deal with such unprofessional people, I will have to let the email notice expire and instruct the expert witness. I will then forward them the report while the notice for appraising the quotes is running out, then file a claim plus the expert costs.

Should have issued the claim in April

I should have indeed but it was really difficult to find an expert who was able and happy to survey this type of work back then.

As things stand the company appears to rely on two arguments.

1. That the building was underway when they fitted and hence they don't have to pay for the damage required for finishes made after. I cannot see how this is a valid argument, they signed off and left the site allowing other trades to work around the doors. Their error will cost in making good repairs for work already paid.

Just to be on the safe side, I have photos of the doors being rendered 24hrs after fitting to support the work continued immediately after and it was affected from the start. They left the site neglecting the contract figures while expecting someone else to check their work. I want to submit the photos in evidemce to them because they brought it up. What is the best way to obtain a digital time stamp (metadata of the file) admissible in legal context to prove when they were taken?

2. During the last attempt I made a proposal to settle on compensation without damaging my home, because they were refusing to cover the making good part or provide any guarantees for damage to the building. The figure reflected the refitting cost according to their visit and it was much less than the quote in the claim. I regret about it but regardless they rejected the proposal on rude tones. Can this be used to reduce the claim of the remedial quotation?

As far as I understand the company does not have the right to return on site after all this time and effort to bring them in.

The expert witness has been instructed and soon they will visit to measure on site.

The person who witnessed the director'svisit has also kindly offered a statement. The question is, do I need to provide the statement to the other side before proceedings begin?

The full notice period has expired without a formal acknowledgement or response to the claims. If their ludicrous email can be seen as a form of response, it is just negative on all claims and requests no extention of time. They do not accept the notice.

Lastly, since the cost of the expert will be a fixed value can I add to the claim? pre questionaire?

" Lastly, since the cost of the expert will be a fixed value can I add to the claim? No pre questionaire? DQ yes see D2 on the N180

Andy

" Lastly, since the cost of the expert will be a fixed value can I add to the claim? No pre questionaire? DQ yes see D2 on the N180

 

 

Andy

Thanks, I was trying to understand if your previous post was about engaging the expert during proceedings. I have checked the information carefully and it appears the cost covered is limited to £750.

Although very unlikely for them to bulge after proceedings are issued, thereis a risk I could be out of pocket on the expert cost if they offer to settle before the DQ stage.

All notices have expired, I am waiting on the report before filing...