Builders and small claims

[mcgu6240]

Hello I'm new to this site and I wish I had found it sooner. I employed a 'Project Manager' to manage our modest house build, he was paid £15,000. It was to be our dream - it is now our living nightmare. We contracted with this individual and his duties were to undertake tendering, ensure build was to local authority standard (ie in line with the building warrant), oversee work on site and buy all materials. This was to be done within 16 weeks. The build started last April and still not complete. He brought in his friend (we didn't know this at the time) to do most of the build and all payments were channelled through him. Our PM insisted that payments were made up front and we received no receipts for materials. In October we uncovered that we had been overcharged by £20k for materials and the builder/joiner left with our money (final staged payment) with at least 40% of the work incomplete. Our PM also left the build.

 

We also discovered that the PM marked up the quotes from the sub contractors, received a payment of £7.5k from his friend the builder (although hard to pove as it came from the mouth of a scoundrel). In addition the surveyors report uncovered a catalogue of horrors including; trusses not built accoording to the approved design, no insulation on the exterior walls, no load bearing wall built.

 

Our solicitor can't make up her mind whether to go after the PM or the builder/joiner - and £2000 in solicitor's fees later we haven't even had a substantial response from the PM's solicitor. He now has gone completely silent. Should we go after our PM as we have the contract with him and he admitted at a meeting I recorded (in writing and not disputed by him) that he didn't carry out any of his duties. He offered (in an email) £7.5k compensation. We calculate this will cost us £80k to put right etc. Trading standards in Glasgow don't want to know as it's in the hands of the solicitor. We are gathering staements from other people he has 'conned' to show a pattern. He is still working with the same builder. We have been informally to the police, but should we go formally and forget the civil case? HIs house is in his wife's name and he is not registered with company house.Thanks

[kennythecelt]

Hi and a warm welcome to CAG.

 

You have been through a heck of a lot. This is a bit beyond my experience but I am sure we can find someone who might be able to offer some useful advice.

 

In the meantime, it might help to consider some of the following issues:

 

• You say that you contracted with the project manager, what type of contract was it, presumably he and you signed it??
  
• What type of professional credentials did the project manager have ie Quantity Surveyor, architect etc?
  
• Did you get any evidence of professional indemnity and do you have copies?
  
• You discovered marked up quotes for materials. Can this be used as material proof, what is it you found?
  
• When was the surveyor engaged?

I'll see if I can get some help in the meantime. A problem shared is a problem halved!!

[GuidoT]

Welcome to CAG.

 

If your solicitor cannot make up her mind then get rid.

 

Ensure you use a law firm that has experience with construction disputes, not a high street firm that deals divorces conveyancing etc.

 

Construction disputes are specialism and solicitors should not take them on unless they are experienced in such, but frequently they do.

 

From what you have written above it does not appear that you have a contract with the builder, but I may be wrong as I do not know the full facts. It appears that PM has acted like a management contractor and then paid the (sub)contractors.

 

You should be aware that you can name more than one defendant in proceedings, but this adds to the complexity and hence the cost of litigation.

 

As a general principle you should commence proceedings against those with the deepest pockets. Does the PM belong to any professional institution like the RICS, as kennytc says they may have PII?

 

I do not suggest you drop the civil action in favour of the criminal matter, as it sounds like a criminal action will be difficult to prove and will not give you any money.

 

Although on the back of the criminal matter if successful you could take a civil action for damages - but this would be a long haul and presumes that the police would even be interested in investigating it.

 

The PM is likely to go silent, until you up the pressure, i.e. commence proceedings as they have your money.

 

I do not wish to scaremonger, but this is going to cost you around £25K in legal fees to litigate, construction disputes of this nature get very complicated. You need to ensure that if you are in for it you have funds to cover such or you obtain after the event litigation insurance.

[mcgu6240]

Thanks Kennythecelt.The contractwas not signed, but in Scot's law it does not have to be - his invoices details the activities for which he was claiming payment. Only qualifications are academic ones, no indemnity insurance -how stupid are we? But we know this guy and thought we could trust him! We can prove the materials thing as the builder cannot produce original receipts to match the invoices (the Pm got us to pay the builder directly). The surveyors report was received last week and the structural engineer will be visiting soon Can't wait! Thanks for the offer of help much appreciated

[mcgu6240]

We have decided to get another solicitor who has been recommended by a property specialist, so hopefully we will get better advice. We are caught in the trap of not knowing whether to spend lots of money with no guarantees that we will see a penny in return. The land register has the properties of both of the 'gentlemen' in their wives' names. Spending £25k to get nothing is not a great prospect - but walking away and letting these people away with it is not an option either. So if the civil option at this stage proves too costly then going to the police could be or only alternative and the way I see it, getting as many people telling us their story about their experiences of this guy would be our best chance. So far we have 4 people who have spoken to us about their experiences and everyone of them willing to help. My experince of Trading Standards so far has been disappointing. Thaks again for your advice

[kennythecelt]

Hi

 

I'm glad guido came on the scene, as he has a lot of knowledge and you need to consider that advice. Glad to see you're changing solicitor and getting one with experience in that area, as Guido says, its specialist.

 

You also needs to ensure that your new QS is properly documenting everything and the structural engineer.

 

Good luck and keep us posted.

[Conniff]

I can't offer any advice on the legal side, but I think you should sound out the police and make a report, you will then get a log number.

If your new assistance should turn up anything that could be classed as criminal negligence, then as you have already logged it with the police, you will have a first foot in there and more than likely they will be more inclined to investigate it.

[mcgu6240]

Thanks Conniff that's a good idea. We have nothing to loose by going formally to the police, and I know we wouldn't be wasting their time. I'll let you all know how I get on with the Structural Engineer and the new solicitor. Any ideas out there how we can warn others about this PM and the builder?

[GuidoT]

Thanks Kennythecelt.The contractwas not signed, but in Scot's law it does not have to be - his invoices details the activities for which he was claiming payment. Only qualifications are academic ones, no indemnity insurance -how stupid are we? But we know this guy and thought we could trust him! We can prove the materials thing as the builder cannot produce original receipts to match the invoices (the Pm got us to pay the builder directly). The surveyors report was received last week and the structural engineer will be visiting soon Can't wait! Thanks for the offer of help much appreciated

 

Signing the contract just gives more certainty, if the terms are in place around the formation of contract stage then you are likely to bound by them as I think you know.

 

Can you post up the terms of the contract, these should say the form of dispute resolution, e.g. Arbitration, Litigation, Adjudication. This should be instrumental in dictating the path you follow to resolve the matter.

 

Have you attempted to quantify your losses? You should try this first and advise you PM and see if you can get an offer higher than £7.5K.

 

Ensure that you do not instruct a lawyer used to property matters, you need a construction lawyer. Property lawyers draft leases, deal with disputes relating to dilapidations etc., construction lawyers deal with the building part and disputes relating to half built projects etc.

 

Let us know which solicitors you instruct and I will tell you if they should be able to handle it.

 

Contrary to what I said, as you paid the builder you may well have a contract with them too.

 

I know a long shot, but do you have home insurance, sometimes they cover the legal costs relating to this type of matter.

[Conniff]

Any ideas out there how we can warn others about this PM and the builder?

 

You could always try your local paper as this woman did:

 

this is plymouth - news, entertainment, jobs, homes and cars

[Weird Al Yankovic]

We have decided to get another solicitor who has been recommended by a property specialist, so hopefully we will get better advice. We are caught in the trap of not knowing whether to spend lots of money with no guarantees that we will see a penny in return. The land register has the properties of both of the 'gentlemen' in their wives' names. Spending £25k to get nothing is not a great prospect - but walking away and letting these people away with it is not an option either. So if the civil option at this stage proves too costly then going to the police could be or only alternative and the way I see it, getting as many people telling us their story about their experiences of this guy would be our best chance. So far we have 4 people who have spoken to us about their experiences and everyone of them willing to help. My experince of Trading Standards so far has been disappointing. Thaks again for your advice

 

This is quite a serious situation as it involves a lot of money.

 

I'm not entirely sure I would have sacked your first solicitor as, most probably, you have paid her money and now you have to pay another just to get to the same level of advice as already given.

 

I personally would not have read too much into the fact she wasn't sure who to go for at this stage. She may have just wanted more information before committing and planning her action.

 

After all, it is quite complicated as so many people appear to be involved.

 

In any case, Contract Law is the first and foremost issue here. The contract just happens to involve a construction. The principles are the same.

 

You are right too, a contract need not be written, although a written one is easier to prove a breach of.

 

Contract disputes are often covered by a home insurance policy, check yours.

 

You seemed to have employed the Project Manager to overlook almost everything in dispute. It would appear this is the chap to go for although it would be no harm to name others.

 

If they are not liable then the judge will simply find that out.

 

However, the PM sounds like a bit of a chancer so I'd be none to hopeful of getting much back.

 

Is it worth chucking good after bad?

 

Good luck.

[mcgu6240]

I was building a new house and was ripped off by my Project Manager who took his fee but didn't do any of the work he was paid for, eg supervsion, tendering, buying materials etc. He got his 'mate' in to do the joinery work but made him a 'main contractor', ie all payments for the subs were made through him. To cut a very long story short after all staged payments were made (PM requested we paid in advance) the 'builders' left and the build was not finished. A structural engineer's report shows the work these joiners/builders did on the roof had to be removed- they 'hand built' trusses rather than fit the manufactured ones that were on the plans; no supporting walls or beams and no insulating plaster board were installed. We have been about £100k (in addition to the original cost) out of pocket, for a building that should have been built for £120k. We have had to do at least £50k of remedial work and of course finish off the work that wasn't completed and pay interest on the loan. The only reason we are not homeless is that our family have been lending us money to allow us to stay in our current home.

 

We tried the civil route to get some justice/money back but had to stop that as we can't afford it. We made a complaint to the police and Trading Standards and they have been reluctant to get involved. The police are now investigating possible fraud but it is like drawing teeth to get them to talk to us so I'm not sure whether the investigation will go further. The police believe that Trading Standards should deal with the shoddy building work and the taking of money and not (partly) undertaking the work and they would investigate the alleged fraud. TS don't want to know -nothing they can do - it's a civil matter. I'm going to meet with them on Friday to discuss further as they made the decision without looking at any of the paperwork (it's amazing what a mention of your counsellor and MSP does - they have been good at contacting the police and TS to discuss our case).

 

What I would like to know is it possible for us to take the builder to a small claims court a number of times for different things, for example, £4k for the plumbing and electrics that were not completed, £4k for the tiling that he didn't supply but was paid for etc. We would still - if we won get only a fraction of what we lossed but better in our pockets.....

Or should we wait to see what happens with the police investigation - it seems they are treating all these aspects separately, ie the PM taking money and not doing the job (theirs), the shoddy and dangerous work (TS) (the roof could have colapsed we were told) and the builder taking money but not finishing the work (TS) (I don't understand how the police can treat the PM and Builder separately!)

 

Apologies for the length but any help would be gratefully received - we have been living with this for 10 months.

[HSBCrusher]

I'm sorry to hear your story.

 

In my opinion, it is not a good idea to split your claims like this... the court will lump them together, and to try to break it up is an abuse of the small claims court.

 

as for the roof. It is possible to fit a roof without trusses, in fact if its done well it is superior to a truss roof. Why did you remove it? was it deemed unsafe? If the building work is as bad as you say (you have photos?) then the TS people should get involved. Involving your MP and counsellor might well get them shifting.

 

edit... sorry just read your post properly about the roof being unsafe.. sorry.

 

so, you paid all the money to your project manager... and he didnt do the work? Did you withhold any of the money?

Edited July 30, 2008 by HSBCrusher

[mcgu6240]

Thanks for your reply. The small claims thing was just an idea to try and get back some of the money owed. It was not meant to abuse the system just to use it to get back money for specific things which were paid for and never received. The PM was paid all of his money except £500 - atotal of £14,500, he did not do the work for which he was paid, once he got all the contractors on site we rarely saw him - we were very niave and trusted this guy. He let his mate from the Joinery company run the build even though he was completely useless. The Joinery/builder firm are not members of any trade association, neither do they have indemnity insurance. The PM is an ex bankrupt, everything in his wife's name including the company and has no insurance (despite us asking as part of his contract to check insurance of all traders - we didn't ask him about his).

[Meldrew2]

Your household insurance policy should have a legal cover section - maybe it's worth checking if this will pay for the court action you need to take.....

[mcgu6240]

Thanks we have checked and spoke to the company and they wrote saying that there is an exclusion with regards to legal matters relating to any building work. How unfortunate are we? We can't stand the thought of there being no action against these people - in some ways this is worse than being ripped off - no-one in the organisations you thought might help are willing to take it on I think it is too complex. But we know of others who have been ripped off by these people and if the police would speak to us we could give them details (well we have done but they lost the file!)The police were meant to come to see us at the weekend and they didn't appear. My huband phoned them on Tuesday and we were told they would be here this morning - no one as yet has turned up. Are we right to try for a criminal prosecution - has anyone who has had a similar experince found this route to be successful?

[raydetinu]

Did the PM have any PI insurance to cover their responsibilities? that would be a way to go.

were their any designers on the project, architect, engineer and did they have any responsibility to check or approve the work.

was any NHBC/zurich guarantee scheme involved.

[mcgu6240]

No PI insurance we had our solicitor ask that question. There were engineer's and architects drawings for the planning application and passed by building control, but they did not have any responsibility to check the work and unfortnately no insurance or guarantee scheme involved, our PM did not say anything about this at the start of the project.

 

I know we sound so hopeless, but as I said we believed at the time that our PM would ensure that things ran smoothly and everything was in place that was required - that was the nature of the contract with him.

 

Thanks for your reply

[mcgu6240]

I posted a message several days ago re the above and would like to give you all some updated information. As expected the police did not turn up to interview as promised (lost count of the times the police promised to come and speak with us and never arrive). However, some possible good news I had a meeting with Trading Standards with someone who was pretty high up the food chain and he was very helpful. I asked in my previous query whether it would be possible to take out a number of small claims against the same builder to try and recoup some of the devestating financial costs to my family because of his shoddy work. The answer was 'yes'! As long as we made a clear separation between the claims, eg we could claim for having to put insulating plasterboard on the external walls (which was stated in the plans) but if we claimed for any electrical work associated with having to remove the current plasterboard and remove and reinstate the electrics then we need to make sure that any electrical work we claim for as part of a separate claim did not include the electrical work contained in the claim for the plasterboarding. Obviously this will mean that we have to be very careful about providing the appropriate amount of detail particularly in relation to the costs. He also advised to carefully 'craft' the first claim otherwise we could jepordise any future claims. Obviously we need to consider whether we do this or go for one big civil action (and/or hope the police can take some action against the Project Manager at least).

 

We have also just found out that there is no flitch beam above the front door, there is a bit of 2x4 bit of wood holding up the entire structure in that part of the house. Oh joy! I need to bring these people to account.

[maroondevo52]

Hi, I'll add this update to your Origional thread, helps people keep track

 

Regards.

 

Scott.

[saintly_1]

Threads merged

oooops sorry scott didnt see you there

[HSBCrusher]

I posted a message several days ago re the above and would like to give you all some updated information. As expected the police did not turn up to interview as promised (lost count of the times the police promised to come and speak with us and never arrive). However, some possible good news I had a meeting with Trading Standards with someone who was pretty high up the food chain and he was very helpful. I asked in my previous query whether it would be possible to take out a number of small claims against the same builder to try and recoup some of the devestating financial costs to my family because of his shoddy work. The answer was 'yes'! As long as we made a clear separation between the claims, eg we could claim for having to put insulating plasterboard on the external walls (which was stated in the plans) but if we claimed for any electrical work associated with having to remove the current plasterboard and remove and reinstate the electrics then we need to make sure that any electrical work we claim for as part of a separate claim did not include the electrical work contained in the claim for the plasterboarding. Obviously this will mean that we have to be very careful about providing the appropriate amount of detail particularly in relation to the costs. He also advised to carefully 'craft' the first claim otherwise we could jepordise any future claims. Obviously we need to consider whether we do this or go for one big civil action (and/or hope the police can take some action against the Project Manager at least).

 

We have also just found out that there is no flitch beam above the front door, there is a bit of 2x4 bit of wood holding up the entire structure in that part of the house. Oh joy! I need to bring these people to account.

it sounds like a real cowboy job.

 

IMO I would be careful about splitting claims like this.. you are better off trying to get a big claim together if you can.

 

I know we sound so hopeless, but as I said we believed at the time that our PM would ensure that things ran smoothly and everything was in place that was required - that was the nature of the contract with him.

 

of course, that's why you employ a PM.

is he a member of a professional body?

[mcgu6240]

Hi thanks for the reply. It is a cowboy job of the highest order that's why we have had to spend 10s of thousands to put it right. I understand your comments about the dangers of splitting, but it is purely economics. We cannot afford to pay £20 - 30,000 to pursue a civil action of that nature. We would have to take 3 to court (including the wife as she is the one trading as Design Solutions that is what the PM called his 'business') The PM is not a member of a professional body.

Given the amount of money already spent and still spending we just can't do it. The Trading Standards guy suggested a 'contigency fee action' as a possibilty as some solicitors may take on cases of this nature on that basis we may consider this as our union has an arrangement with a law firm.

[raydetinu]

Are you going to sue the individuals or the companies?

Companies have a habbit of going bust or winding just as you are about to win a case! may go through all that pain and get nothing. you need to research their assets first. men of straw and all that.

[mcgu6240]

Will be suing the individuals as their businesses are not Ltd. As far as the assests go - well the 'builder' is harder to pin down as his houses is in his wife's name and not sure if he has other assests. As for the PM his wife owns their house but then she would be the one we are also suing as she is the signatory for the business (although I'm sure there may be a loophole somewhere that gets her 'off')