Suing a Builder - ** RESOLVED **

[MrBigglesworth]

Hi all,

 

I am new and never used the small claims court so I would just like a second opinion/help if thats possible.

 

Currently I am suing a builder for some very poor work outside my property. I believe that he choose the wrong materials, installed them incorrectly, and left them in an unfit state (which then caused damage a couple of days later). When he refused to repair the damage (that he caused), I paid for the repair on the condition that he then finishes the job properly with the right materials. After he repaired the damages he then refused to come back and complete the job and asked for more money. At this point I had enough and threatened legal action. I sent a letter before action, clearly stating my position and asking him to complete the job as he agreed, and he ignored it (he had 4 weeks to do something about it).

 

After getting second opinions from a couple of other builders, they agreed that the materials that were used were "not a good idea". So if I need an expert witness report (i.e. builders report) I am sure that it will back me up in that respect.

 

I would have accepted a settlement up to this point, but after being ripped off, dodgey work, refusal to do work, time wasting, etc. I would rather not use this guy again in case he makes things even worse and causes more damage (and lies, refuses, etc. again). I'd rather just get my money back (and yes, I've checked he has assets so I know I can get it). So I'm hoping if I say that I don't want to settle at this point its not going to affect my claim (I am assuming not as I gave him plenty of time to sort it out).

 

I also have email threads which should point out what was agreed, he will argue that he advised me the materials were not right (however he supplied and recommended them! And there is no written evidence to back him up - as he is lying here).

 

I've started the claim (using MCOL) , its about 1000 pounds, and he intends to defend the claim. I now have his defence (rather weak and I know he will have little or no evidence to back him up) and an AQ.

 

I'd just like to get some advice from people here if they have had experience with this sort of thing:

 

- Do I need an expert report (i.e. builders report?) I already have photos to highlight the damages (before and after), some of the materials, although the property has now been repaired.

- Should I add anything to the AQ? There is a section for "Other information" that could help my case.

- I don't have any witnesses to back me up, and I know he is going to lie (he will lie that someone must have tampered with the materials, it was the wind, etc). Do I need to worry about this?

 

One thing I have noticed is this guy is working as a company, however, I have never seen any invoices, reciepts, etc. with a company address on it. I did a search for his company name and there is nothing. Is this illegal and could I use this against him?

 

Thanks

[ims21]

Thread moved to Legal Issues forum

[assisted blonde]

Is he saying he is a ltd co if he is it will have to be registered, he can call himself a company without ltd after his name if he wants, where have you checked? if it is just a basic check on companies house it may not show up, there are other places/sites that you can check but you will need to register/apply and it will cost.

[wonky100]

Hello Mr Bigglesworth

 

I'm currently in dispute with a builder, although I'm being sued as I claimed my money back from him via my credit card due to poor workmanship.

 

My dispute is being handle in the fast track courts.

 

I would definately suggest that you get an expert opinion if you have time. Perhaps you could suggest this is a single joint expert where both parties agree to the expert and pay the costs between them. Although I'm not sure if a single joint expert is applicable in the small claims court.

 

In my case, the fast track court has just disallowed my expert evidence, for which I paid approx £500, in favour of a single joint expert. I'm not worried about a single joint expert, in fact I was adamant that a further report be obtained to carry out more detailed investigation as I know the structure is poor.

 

So the £500 got me a RICS appointed surveyor who reported on any obvious faults. To get a more detailed report I've been quoted between £95 and £150 per hour + VAT and the work could take more than 1 day (this includes digging up my garden to check out the foundations).

 

The DJ in a hearing this week more or less said that whatever the single joint expert goes and that either party will need to reconsider their position once the further report is obtained. So if you can afford a report, I'd defo recommend it.

 

With regards to the company, is this a ltd co? Have you checked Companies House? If it's not a ltd co, at least the owner can't restrict his liability.

 

Good luck

[MrBigglesworth]

Hi Wonky and blonde,

 

Many thanks for your help. Yes I think on my AQ I will suggest that an expert report (as agreed with the court) to help highlight wrong materials and poor installation. Its really very basic and I'd hope that an expert looking at the materials, photos, etc. would probably only need a few minutes to finish a report. So I can't imagine it costing more than a couple 100 quid. I'd suggest that the defendant pays half the costs.

 

If on my AQ I say I do not wish to settle/mediate, will this affect my claim (I've given him ample warning, and I've been more than reasonable up to this point)?

 

The builder also has no written/email evidence to back up his defence ("I told you so" is his defence, but he had opportunities to warn us 2-3 times by email, and on his receipt, but there was no warning about the materials that he was using). Is it worth highlighting this at this point on the AQ as hes not going to have much of a defence if there is no written evidence to back him up?

[asokn]

If on my AQ I say I do not wish to settle/mediate, will this affect my claim (I've given him ample warning, and I've been more than reasonable up to this point)?

 

The builder also has no written/email evidence to back up his defence ("I told you so" is his defence, but he had opportunities to warn us 2-3 times by email, and on his receipt, but there was no warning about the materials that he was using). Is it worth highlighting this at this point on the AQ as hes not going to have much of a defence if there is no written evidence to back him up?

 

A failure to mediate or enter into negotiations to settle the claim can in theory go against you when it comes to costs, the courts as a policy want only the cases that cannot be resolved any other way to progress to a trial. It's up to you though but I would suggest you at least suggest you're amenable to the concept.

 

As for the second point, I wouldn't help the other side to realise the weaknesses of their case.

[MrBigglesworth]

Hi asokn,

 

Thanks for the pointers. I'll go along with mediation for now and see what happens.

[wonky100]

Hello Mr Bigglesworth

 

You state that you've given the builder plenty of opportunity to sort but I don't think it can harm you to agree to mediation (I refused mediation but then when you have a builder who threatens you as in our case..........). It's unlikely that your builder will go down this route, so at least you've shown you've been reasonable.

 

You may find that a surveyor has a minimum charge. If you're going down route of your own expert then I'd let them just get on with having a look at the entire job. If you're going down the route of a single joint expert then you'll have to agree on the expert and agree on the instructions to give to him/her.

 

If you do get a report done then you'll need to disclosure this at the disclosure stage in any event, so I'd be tempted to get the report and send it to the builder giving them the opportunity to put everything right that is identified (since you've suggested that you're open to mediation). But you'll either want to claim your costs back if it identifies problems or perhaps deduct this from any monies owing. Perhaps you could write to the builder again pointing out that you're going to appoint a surveyor. I did, but it didn't do me alot of good! At least I gave them the opportunity to sort though.

[MrBigglesworth]

Thanks Wonky,

 

I'm going to try mediation, and say the amount I have paid already would have easily covered the work/materials if it had been done properly in the first place. I will also ask for a guarantee of some sort, so that if I have any problems in the medium term, he will fix it at no extra cost. I doubt he will agree to these terms (doesn't bother me).

 

As for the expert report, I'd like to use the one appointed through the courts, as if I pay 500 quid for a RICS surveyor I doubt I will get the money back (and my claim is only for about 1000 quid). I also heard that the courts generally don't like using expert reports without the courts permission.

 

For a claim of around 1000 pounds, I'm wondering if I need an expert report, I might be able to just provide photos of the damage.

[wonky100]

I understand completely that £500+ may seem a little excessive given the value of the claim.

 

Manchester Civil Court told us last week that if we couldn't agree a SJE then they'd appoint one but all they'd do is pick a name out of the yellow pages. If the courts did appoint one, you'd still have to pay the surveyor and then try and recover afterwards.

[MrBigglesworth]

Thanks Wonky,

 

Any ideas of what I can do to maximize my chances of getting my money back later? If I suggest to go 50/50 with the other party, do they have to agree (and would it affect their position if they refuse to split the costs)?

[wonky100]

I really don't know. All I can say it's whats been going on for us. Perhaps someone with legal knowledge could help a bit here.

 

We sent numerous letters/emails, most were unanswered. We got a survey which identified problems and they didn't sort. We sent them an offer for some of the materials, it was refused. We requested and then agreed following their subsequent request that the structure could be removed. The structure still stands. They asked that the structure be valued, we agreed, but it was never valued.

 

We have photos, video, CCTV footage as well as the survey.

 

Yet we're still being sued despite being as reasonable as we could and with all the evidence we have.

 

We're being sued for a lot more money that your claim, so I guess expert evidence is a little more acceptable. And we appointed a surveyor prior to the matter going to court at our expense to identify the problems, although if we win they will be considered in the final costs at the end of the hearing.

 

All you can do is be as reasonable as you can. You say you've written to them on a couple of occassions and they've not responded. You say that you're willing to mediate. Sounds like you're being reasonable to me. If you do decide to get a report I'd be inclined to tell the builder that you're doing so and then let them have a copy of once you've got it. Again to show you're being reasonable. Or you could always ask them if they'd go halves. Again it shows that you're being reasonsble and that you're trying to sort. I don't think they have to agree to go halves unless a court orders them to do so (which they have in our case). If all else fails, what other options do you have other than suing?

 

You instruct and pay someone to do something for you. You expect them to get it right or at least put it right if they make a few mistakes along the way.

 

Everything in writing. Copies of everything in a file in chronological order with the main evidence highlighted even if just with several post its so that it's easily identifiable should you get to court. I thought I was super organised, but when I was asked for a document last week I stumbled finding it - but I did in the end.

[MrBigglesworth]

Thanks again Wonky.

 

Your right, its a struggle as basically I've done nothing wrong other than being unlucky in choosing a "bad egg". I've even offered to throw money at the problem to tempt the builder to finish the work (which I shouldn't need to do) just to get it finished. This guy is just blaming everyone else and lying to avoid getting out of pocket. I'm sure he knows he is in a weak position but is making it as hard as possible to return the money. I guess in your case its probably similar, instead they are hoping they might get something out of it.

 

So far I am sticking to my guns, as although this is new to me, I know I am in the right and when I'm sitting in front of a judge, photos, a report, emails, letters, etc. will all back me up and the builders going to look stupid when he has nothing to back him up.

 

PS good luck in yours!

[MrBigglesworth]

Hi all,

 

I have a question with regards to the burden of proof should this go to court. The defence will argue that someone must have tampered with the materials, as we did have other contractors working in the vicinity. However it would have been very unlikely (as they would have had no reason to do so), plus I would have noticed, etc. This contractor does not wish to get involved. As it is part of the builders defence, does he need to prove that someone tampered with the materials, or do I need to prove that they did not? I'll have other evidence to back me up so I don't need to rely on this. Can I ask for strict proof (as far as I can see, he is making excuses)?

Edited March 30, 2012 by MrBigglesworth
typo

[asokn]

You will ultimately have to prove your case that the Defendant is responsible but you only have to prove it on the balance of probabilities. Therefore the court will ask itself whether it is more likely than not that the builder is responsible and this will depend on the evidence you both present. If, for example, the builder claimed that aliens were responsible for the damage you would not have to directly disprove that but simply convince a judge that is a less likely explanation than what you are saying happened.

 

In short, the builder will have a tactical rather than legal burden to prove his case and if you have lots of evidence compared to none from him then it's more likely the judge will agree with your version of events.

[MrBigglesworth]

Cool beans, thanks!

[MrBigglesworth]

Hi,

 

I have evidence to suggest that the defendant is unreliable (it took 5 rearranged dates until he finally made an appearance to do the work), unscrupulous (before court action he said he had emails to back him up, when in fact he didn't. This was omitted from his defence. Worth bringing this up?), and unprofessional (when asking him about the work, the method he recommended would always change, as well as the price going up. He would recommend an option, only to un-recommend this option later, rather confusing).

 

Worth bringing up these details or would the judge not care?

[MrBigglesworth]

Anyone?

[asokn]

The question is really whether any of those traits are relevant to the case. I haven't read the whole thread but I doubt you are suing him because he is unreliable for example. As for being unscrupulous, the fact that the emails were not attached to the defence is not relevant; evidence is for disclosure not pleadings. The unprofessionalism, particularly the changing price, may be relevant but the court is not there to perform a character assassination; just ask yourself "how does this relate to my claim?" and, if it doesn't, don't mention it.

[MrBigglesworth]

Thanks asokn,

 

I guess I should not dwell too much on character assassination as you say, some of it is relevant as a lot of it is the defendant trying to put himself in a better position than he really is. For example he first said "I have emails to back me up that I warned you and happy to go to court", when really, he has nothing, and I have evidence to the contrary. I've tried my best to just pay him to finish the work (within reason), even when really he should be just fixing it to avoid this farce. A lot of it might help me to claw some expenses back, as if I am put in a good light (I was more than reasonable, paid for the repairs just to finish the work, mediation, etc), when he could be put in a bad light (made excuses and lied not to foot the damages, kept changing the contract - i.e. first it was 100 quid, then 200 quid, then 600 quid, etc.) then this may help my case.

 

I guess the court is not going to be too pleased with him if, at the end of the day, we are here because of him.

[Jasper1965]

The defence will argue that someone must have tampered with the materials, as we did have other contractors working in the vicinity.

 

What type of work was involved?

What exactly was wrong with the materials?

Is the complaint in any part based on the quality of workmanship or simply upon the materials used?

[MrBigglesworth]

Hi,

 

I won't go into too much detail just in case - but the work should have been very straightforward.

 

I think the bottom line is the method/materials were not a good idea and in fact dangerous (as other builders have commented this), but also I don't think they were installed properly in the first place (i.e. missing screws, etc.). I've got photos to back me up here and I'm hoping to get a simple report to highlight the fact that the materials were not suitable.

[Jasper1965]

I understand your caution but I'm completely unable to help you without some very basic information.

 

I'd be careful using the word "dangerous" as a quote from other builders in any litigation as this is open to challenge and proof and sadly you'll find a large percentage of "builders" aren't qualified to build a garden shed if push comes to shove.

 

Materials choice is a greater science than many realise as such there are numerous standards applicable all of which are well documented.

Start with the manufacturers data sheets for whatever was used.

Structural timber must be graded and stamped, using non structural in a structural situation is quite easy to identify and would certainly be apparent at time of installation (assuming operatives know their onions).

 

FWIW you've submitted your claim and the defendant has entered a defence therefore you are now just effectively looking to pad out your POC's with a good witness statement and evidence. Disclosing what's in the POC will not prejudice anything now as the defendant already has it.

(But if you aren't already aware of exactly what was wrong with the choice of materials then the chances are that the claim is defendable IMO eg "the defendant used non structural softwood timber instead of the specified C16 rated structural timber in locations x,y,z of the structure contrary to the requirements set out in BS EN 1995-1-1 Eurocode 5: Design of timber structures. Part 1.1............" hits harder than "the defendant used the wrong timber for the structure". Of course if a mat is interior grade eg MDF and is used externally (it does happen) proving it is a non brainer and doesn't need a special report.

Bricks, blocks aggregate mixes are all subject to standards as are obviously electrical and plumbing installations. Fibreglass roofs are the new bone of contention as there's a fibreglass roof and a proper fibreglass roof and it's sometimes hard to tell them apart until the one starts to leak).

 

I am intrigued by the claim of sabotage though.

 

Thought I'd heard every excuse under the sun and I have actually seen a case of sabotage involving a very disgruntled neighbour meticulously removing the cavity wall ties each night then tipping off building control that no ties were used when the gable ends reached ridge height. That was expensive.....

[MrBigglesworth]

Hi Jasper,

 

Thanks for the detailed response. I have already been in contact with the manufacturer of the materials and told them the details, and they suggested using other materials that they supply. They wouldn't get drawn into anything as they obviously didn't want to get too involved. I'm no expert here, but I am expecting a simple report by a builder/surveyor will point out that the materials/method were not suitable, as well as once they see whats left of the materials, they will notice there are screws missing, etc.

 

As for dangerous, the structure fell into a busy street, which could have landed on someone, or distracted a driver and caused a car accident, etc. So I am saying that it was dangerous, not anyone else (although I'd think that most people would agree!)

 

I'm sure the materials were not touched as a) I saw the structure fail and b) I have before and after photographs. It also doesn't make sense for the materials to have been tampered with. They were just plain wrong.

 

As for witness statements, I can get 2 from members of my family, although would a judge see this as potentially biased? I could probably get another one from one of my neighbours as well.

 

The defendant isn't defending saying that the materials were sabotaged, more that someone must have moved them (if they did, they were very clumsy and caused damage!). This doesn't make sense as, the materials could have been moved by undoing a few screws if needed, rather than being yanked out as the defendant is suggesting.

 

Thanks

[MrBigglesworth]

Hi all,

 

Sorry, quick question, if something was omitted from the defence and then later brought up at the hearing, does that mean it carries less weight at the hearing? for example, the builder orginally refused to pay for the repairs as his excuse was "I told you the materials would never work" (why did he recommend them in the first place). In his defence statement he makes no mention of this, he says someone else must have damaged the materials (and he refers to a conversation that never happened, and he never mentioned to me).

 

Can I use this against him?