Roofer did shoddy work and has now filed court claim against me

[Kinger122]

 

2. Accordingly,the Defendant/part 20 Claimant seeks the sum (£xzy) from the Claimant/part 20 Defendant and respectfully requeststhat this Court strikes out his claim in its entirety.

 

 

 

 

 

STATEMENT OF TRUTH (as above)

 

 

 

Kindregards

 

 

 

TheMould

 

Thank you so much TheMould. That is a very detailed and helpful reply. I will post the particulars of the claim as soon as they arrive (if they ever do). What happens if I don't receive the particulars of the claim? Why did the person not send them with the claim? Is he trying to make me have less time to prepare a defence? It seems a bit unfair to put in a claim but not elaborate.

 

Since my last post I have already done as you suggested and I am in the process of obtaining quotes from a building surveyor and from roofing companies for the cost to put the roof right. I am still waiting for the particulars of the claim. Am I correct in assuming that I will not be able to claim the cost of hiring an expert (surveyor) to assess the roof. I have been reading information regarding experts and it states that the expert must be cross examined by the claimant. However another member said previously on this thread that a written statement is enough. I just want to make sure I am as thorough and tenacious whilst obtaining evidence.

 

 

With regards to the building inspector point. His exact words were "if you were to do the roof yourself I would not pass the roof off. If this company can provide a warranty then I am happy to do so." I feel that this particular inspector is quite ignorant of the regulations of which he enforces.

 

I cannot thank you and everyone else for your help.

 

Regards

[Mike_hawk]

CPR10.3(1)a for aos where particulars are to follow. +14 days from service in your case. Perhaps sensible to check that the court have the service element correctly entered on your file.

 

If no particulars by 4 months post service of claim the case becomes subject of long-stop. Venulum property investments Ltd v space architecture & others seems to provide some assistance.

 

CPR35 in the earlier post should provide some guidance in respect of expert witnesses. Its possible s/he may be required to attend but it seems unlikely within the small claims track with costs difficult to recover and limited time allocated to hearings and trial.

[steampowered]

Time for filing your Defence only runs from service of the POC Kinger. However check with the court regularly to ensure it has not been missed or lost in the post.

 

 

Further to the above, just to note two things:

 

• there are usually no case management conferences in small claims track, you need to ask for permission to use the expert properly on the DQ, do not assume you will have a chance to explain this to the judge.
  
• much of Part 35 of the CPR does not apply to SCT - the Civil Procedure Rules are a bit of a maze so one needs to be careful (refer to http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27)
  

[The Mould]

She can instruct an expert and submit his evidence as a lay witness.

 

Yes he is trying to put you under pressure as regards you having plenty of time to respond in full with a particularised response to his particularised statement of case.

 

As advised, check the date as to the claim being served on you, if no particularised statement of case is served, then you can only answer/plead against the one paragraph contained on the N1 form.

 

Please confirm date claim - N1 form was served on you.

 

Kind regards

 

The Mould

Edited December 3, 2013 by The Mould
mis - spelling of a bloody simple word!

[Kinger122]

She can instruct an expert and submit his evidence as a lay witness.

 

Yes he is trying to put you under pressure as regards you having plenty of time to respond in full with a particularised response to his particularised statement of case.

 

As advised, check the date as to the claim being served on you, if no particularised statement of case is served, then you can only answer/plead against the one paragraph contained on the N1 form.

 

Please confirm date claim - N1 form was served on you.

 

Kind regards

 

The Mould

 

The date the form was officially served was 2/12/2013 (five days after the date on the form)

 

I have just had a quote from a building surveyor of £650 for surveying the roof. His credentials are "Bsc (hons.) Dip.Bldg.cons.(RICS), MRICS." It was a bit more than I was expecting to be honest......

[The Mould]

The date the form was officially served was 2/12/2013 (five days after the date on the form)

 

I have just had a quote from a building surveyor of £650 for surveying the roof. His credentials are "Bsc (hons.) Dip.Bldg.cons.(RICS), MRICS." It was a bit more than I was expecting to be honest......

 

 

Then Mon 14 December 2013 is the date that you ought to receive Claimant's particularised statement of case.

 

How much is Claimant suing you for?

 

Kind regards

 

The Mould

[Kinger122]

Then Mon 14 December 2013 is the date that you ought to receive Claimant's particularised statement of case.

 

How much is Claimant suing you for?

 

Kind regards

 

The Mould

 

 

£2816 plus a £70 "admin fee." Am I correct in assuming that the admin fee cannot be claimed as it forms a part of the normal running of the business. Just like the private parking companies try to charge extra when the initiate court proceedings and they usually have them thrown out.

 

Regards

[The Mould]

£2816 plus a £70 "admin fee." Am I correct in assuming that the admin fee cannot be claimed as it forms a part of the normal running of the business. Just like the private parking companies try to charge extra when the initiate court proceedings and they usually have them thrown out.

 

Regards

 

 

The £650.00 fee provided by the buildingsurveyor, is that for inspecting theworks or his estimate to put the works right pursuant to building regs?

The admin fee would need to be establishedby the builder to reflect the actual amount he incurred as damages foradditional fees claimed thereon. The Court will decide if such is excessive anddisproportionate to the claim in respect of your alleged breach ofcontract.

(I believe that he will fail with theentirety of his claim and so you will owe him nothing - this is my opinion based upon the matters ofthis case that you have posted here andmy understanding and experience in English contract law)

The fact is, based upon your postings here, thatthe work that the roofer was contracted to undertake, which he accepted and then sub-contracted thesame out to another entity who have not performed the obligations given by themain co tractor to install velux roofwindows in accordance with building Regs, leaves the roofer/maincontractor liable for the deficient works installed by sub-contractorsinstructed by him and the sub-contractors jointly liable for the damages soughtas a result of the works undertaken by them which does not comply with thecontract to which such works were instructed for and do not comply withbuilding Regs.

The works/improvements undertaken by thesub-contractors instructed by the main contractor on the roofing works to the extension are deficient and do not even complywith building regulations pursuant to your local authorities building controlregulations, the builder/roofer is therefore infundamental breach of his obligations under the contract agreed with him and heis therefore the contract breaker to the same which has left you in a positionof instructing proper professional roofers/builders to undo the works carriedout by the Claimant, which has causedyou to incur additional costs to the tune of (statequotes you have received), therefore, the Claimant’s claim is groundless and the Defendant’s liability for the sameis denied in its entirety.

Still, wait to see if Claimant serves hisparticularised statement of case on you. That way, we can answer to each and every paragraph andthe allegation(s) contained therein.

Kind regards

The Mould

[Kinger122]

The £650.00 fee provided by the buildingsurveyor, is that for inspecting theworks or his estimate to put the works right pursuant to building regs?

 

 

The building surveyor's fee is just to inspect and report on the the pitch, installation and condition of the roof etc. I am in the process of obtaining quotes to get the work corrected. From what I have been told so far, this will probably require the whole removal of the roof and for it to be relaid at the correct pitch, along with all new materials.

 

Thank you again for your help TheMould. I will post here as soon (if I ever) receive the particulars of the claim.

 

Regards

[Kinger122]

Here is the email I received from the surveyor.

 

Further to our telephone conversations of yesterday and today, I have had a brief look at the email

 

attachments which you have sent to me.

 

I confirm that I would be pleased to assist with regards to inspecting and measuring the relevant parts

 

as appropriate and then providing you with a CPR35 compliant Expert witness report in relation to the

 

disputed matters which I understand are as follows:

 

a) Pitch of the roof of the extension being less than the necessary and agreed 15 degrees

 

b) General installation details of the Velux roof windows

 

I confirm that I would use a digital ‘Total Station’ measuring device to accurately measure and

 

calculate the pitch of the roof. The Velux windows would be inspected as possible without allowing for

 

any opening-up of the construction or removal of roof tiles.

 

Our fee for my involvement as described above would be £650 + VAT. This would include normal

 

expenses and disbursements.

 

With regards to my potential involvement, please find attached my relevant CV with regards to Expert

 

Witness work.

 

If you have any queries at all, please do not hesitate to contact me.

 

Yours sincerely

[steampowered]

Sounds good. If you are confident in your case I think this is a worthwhile expense, especially as the expenses can be recovered from the other side. Especially if your counterclaim might exceed the value the value of the original claim.

 

 

Also worth noting that if your counterclaim is above 10k this might take it outside SCT.

 

 

I would wait until you have the court's permission to use an expert before formally instructing him

[Kinger122]

Hi everyone,

 

 

Just an update. I have still not received the particulars of the claim. It will be 2 weeks tomorrow since the claim was served on me. I have also spoken to the court regarding expert witnesses and they have said that once the case is allocated to a certain "track" then they will decide if the witness would be applicable, however the case cannot be allocated as I have not received the particulars.

 

 

I have a few questions please. Can I issue a counter claim now and then use my expert witness for the counter claim? Am I correct in assuming that the initial claim is now invalid as I have not actually received information on what the claim is about within the 14 days? Can I instruct another party to start replacing the roof if I am to pay for the expert witness as I am unable to continue with the work?

 

 

Thank you once again.

[Kinger122]

Sounds good. If you are confident in your case I think this is a worthwhile expense, especially as the expenses can be recovered from the other side. Especially if your counterclaim might exceed the value the value of the original claim.

 

 

Also worth noting that if your counterclaim is above 10k this might take it outside SCT.

 

 

I would wait until you have the court's permission to use an expert before formally instructing him

 

 

 

I forgot to reply to your post at the time. As far as I am aware from the court information and other documents I have read, unless the claim is above £10,000 then I am unable to recover witness costs. Unless there is some exception?

[mjt2013]

If the claim is allocated to the small claims track, which under £10k claims usually are, then there is a set sum that can be recovered. If you want to recover more than that you would need to show that the Claimant has acted unreasonably. Then the court can award whatever costs it likes!

 

See CPR Part 27 and the practice direction.

[andydd]

What would your counterclaim be for ?. You would need to show a particular loss or damages some how. Don't forget that a court may decide that something is payable even if the work is shoddy.

 

Although by the looks of it, the claimant may miss the deadline to file a POC, it may even be possible to have claim struck out if he doesn't or apply for summary judgement if he really shows no case.

[steampowered]

She can instruct an expert and submit his evidence as a lay witness.

I forgot to reply to your post at the time. As far as I am aware from the court information and other documents I have read, unless the claim is above £10,000 then I am unable to recover witness costs. Unless there is some exception?

 

I missed this. You cannot use an expert as a lay witness to get around the need for permission. Lay witnesses are not allowed to give opinion evidence, such as whether the roof was in their opinion built properly. This would severely damage the value of your expert.

 

The CPR states as follows for SCT: 'No expert may give evidence, whether written or oral, at a hearing without the permission of the court.'. It is contrary to the spirit of the CPR to try and get around this by trying to call your expert as a lay witness. I suspect the judge would disallow it completely and refuse to hear him.

 

Even if the court let it slide, if you called your expert as a lay witness you would be unable to recover his costs. You can recover up to 750 if he is called as an expert in the proper way. Please refer to the Practice Direction for CPR 27, paragraph 7.

 

You have to declare what witnesses you wish to use on the DQ anyway so I am not sure this gets you anywhere.

[Ganymede]

Hi everyone,

 

 

Just an update. I have still not received the particulars of the claim. It will be 2 weeks tomorrow since the claim was served on me. I have also spoken to the court regarding expert witnesses and they have said that once the case is allocated to a certain "track" then they will decide if the witness would be applicable, however the case cannot be allocated as I have not received the particulars.

 

 

I have a few questions please. Can I issue a counter claim now and then use my expert witness for the counter claim? Am I correct in assuming that the initial claim is now invalid as I have not actually received information on what the claim is about within the 14 days? Can I instruct another party to start replacing the roof if I am to pay for the expert witness as I am unable to continue with the work?

 

 

Thank you once again.

 

 

 

Did you get the PoC served on you in the end?

[Kinger122]

What would your counterclaim be for ?. You would need to show a particular loss or damages some how. Don't forget that a court may decide that something is payable even if the work is shoddy.

 

Although by the looks of it, the claimant may miss the deadline to file a POC, it may even be possible to have claim struck out if he doesn't or apply for summary judgement if he really shows no case.

 

The counterclaim would be for the following:

 

• Compensation for Disruption and damage to property due to leaking roof
  
• Replacement of roof to be done to the correct pitch of 15 degrees
  
• Repair of any damage to internal work caused by the whole roof being removed and replaced
  
• Removal of waste which was agreed in contract but not carried out. (I had to hire a skip and remove their waste myself.)
  

[Kinger122]

I missed this. You cannot use an expert as a lay witness to get around the need for permission. Lay witnesses are not allowed to give opinion evidence, such as whether the roof was in their opinion built properly. This would severely damage the value of your expert.

 

The CPR states as follows for SCT: 'No expert may give evidence, whether written or oral, at a hearing without the permission of the court.'. It is contrary to the spirit of the CPR to try and get around this by trying to call your expert as a lay witness. I suspect the judge would disallow it completely and refuse to hear him.

 

Even if the court let it slide, if you called your expert as a lay witness you would be unable to recover his costs. You can recover up to 750 if he is called as an expert in the proper way. Please refer to the Practice Direction for CPR 27, paragraph 7.

 

You have to declare what witnesses you wish to use on the DQ anyway so I am not sure this gets you anywhere.

 

Thank you for the clarification. I will just instruct an expert and use an expert witness. So even for my counterclaim I would not be able to instruct the expert to do a survey and use his evidence for both the claim and the counterclaim? My problem is I need the roof fixed, but I cannot do so until the expert inspects it, and he cannot inspect it until I am given permission otherwise I may lose even more money. This is such a difficult predicament.

[Kinger122]

Did you get the PoC served on you in the end?

 

I haven't heard anything from the claimant since the papers arrived and it is now 15 days since the claim was served on me.

[The Mould]

I haven't heard anything from the claimant since the papers arrived and it is now 15 days since the claim was served on me.

 

 

What is the name of the Court on the Sealed N1 Claim form?

Kind regards

The Mould

[steampowered]

The counterclaim would be for the following:

 

• Compensation for Disruption and damage to property due to leaking roof
  
• Replacement of roof to be done to the correct pitch of 15 degrees
  
• Repair of any damage to internal work caused by the whole roof being removed and replaced
  
• Removal of waste which was agreed in contract but not carried out. (I had to hire a skip and remove their waste myself.)
  

 

 

Would all of this still cost less than 10k? If more than 10k this is no longer a small claim.

 

Thank you for the clarification. I will just instruct an expert and use an expert witness. So even for my counterclaim I would not be able to instruct the expert to do a survey and use his evidence for both the claim and the counterclaim? My problem is I need the roof fixed, but I cannot do so until the expert inspects it, and he cannot inspect it until I am given permission otherwise I may lose even more money. This is such a difficult predicament.

 

The problem is that the court may order the expert to be appointed as a joint expert for both parties, which would slightly change the dynamic. Ideally you should wait before appointing him as your personal expert, although in small claims to be honest you might get away with getting the report now and trying to get court permission later.

 

You should get a few written quotes for fixing the roof from builders. This will help you put a figure on some of the amounts you are claiming (you don't usually get proper expert reports for the amounts - just for the principle of what has gone wrong, for the amounts get some quotes).

 

There is no reason to delay the actual building work. The only problem would be if the building work would prejudice the ability of an expert to provide a clear report - Perhaps this is something you should double check with the expert.

[steampowered]

I haven't heard anything from the claimant since the papers arrived and it is now 15 days since the claim was served on me.

Please be very careful of the deadlines on the form. Assuming their Particulars of Claim was included in the claim form, you don't have that much time to file your acknolwedgement and then not much time to file your Defence and Counterclaim. This needs to take priority, issues around quantifying the exact amount and instructing your expert can be sorted later.

 

If you haven't filed your acknowledgement of service you need to do this ASAP.

[The Mould]

“There is no reason to delay the actual building work. The only problem would be if the building work would prejudice the ability of an expert to provide a clear report - Perhaps this is something you should double check with the expert”.

With respect as regards your last para above, no prejudice could be caused to any expert in this matter, because the local authority have refused to issue a Building Regs Certificate, which clearly proves that the work undertaken by the roofer does not comply with building regs and is, therefore, deficient, any expert in this field can rely upon this fact, hence the reason as to why Kinger is going to have to instruct a professional builder/roofer to put the deficient and non-compliant works right.

Kinger, obtain 3 or 4 quotes from proper professional builders/roofers and instruct the company that you feel most comfortable with, who has references that you can check, to put the roofing works right and in compliance with building regs. These costs will form your Counterclaim against the dodgy roofer for fundamental breach of contract.

If 15 degrees was agreed in writing with the dodgy roofer and the pitch of the roof installed is different, then this also provides you with grounds, in addition to all previous points mentioned, to argue non-performance of the contract by the dodgy roofer and his obligations thereunder.

Kind regards

The Mould

[The Mould]

Kinger

 

 

Any possibility of you please providing an answer to my post# 46 above.

 

 

Kind regards

 

 

The Mould