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

[Mike_hawk]

Kinger

 

There's an order in place, the terms are fairly clear in that the roofer must comply with a,b,c before he receives payment.

 

Regardless of the build quality or rectifying the water ingress he doesn't seem too keen on releasing the insurance backed guarantee prior to payment. He agreed those terms at the earlier hearing, he must adhere to them......... i don't know what he hopes to achieve by bringing this to the courts attention but if you're not happy with it you need to let him know and ensure the court is aware of the issue.

[Kinger122]

Kinger

 

There's an order in place, the terms are fairly clear in that the roofer must comply with a,b,c before he receives payment.

 

Regardless of the build quality or rectifying the water ingress he doesn't seem too keen on releasing the insurance backed guarantee prior to payment. He agreed those terms at the earlier hearing, he must adhere to them......... i don't know what he hopes to achieve by bringing this to the courts attention but if you're not happy with it you need to let him know and ensure the court is aware of the issue.

 

 

 

Hi Mike. Would this be better to send to the roofer?

 

 

"

Dear roofer,

I have received your correspondence via post and I would like to know why you are applying back to the court. I have complied with the order by allowing you access to my property. The order states you must rectify the leak, which you have not. The order also states you must provide an insurance backed guarantee, however you have still not provided this. Why have you still not provided me with the insurance backed guarantee? The inspector has not passed the roof as the leaking has not stopped.

What evidence is there to suggest the cause of the leaks is due to my main property? All I can see in the photographs you have enclosed is a puddle on a flat roof; something which is to be expected on a flat roof. You state I have failed to accept the leak is due to my main property, but what evidence have you provided to back up the claim that my main property is responsible for the leak? You are requesting the building inspector to attend; on what grounds? He has already stated to me that the workmanship of the roof is beyond his remit, therefore he is not qualified to provide a report on state of the roof.

Kind regards

[Mike_hawk]

Is it's correspondence with the court a formal application or just a gripe with the intention of varying the oder?

[Kinger122]

Is it's correspondence with the court a formal application or just a gripe with the intention of varying the oder?

 

 

 

They sent me a full witness statement (like the initial statement before the court) including photographs and all documents. I don't know whether or not they have done it formally, or know if they know the correct procedure.

 

 

Is there a requirement to file the documents on the other party? Is this initial form just to request a hearing, and then will the judge ask us both to send evidence to each other like we initially did?

[Mike_hawk]

No [requirement] but it is apparently pressing the dj to make a decision on varying the order as it cannot force the council to attend and doesn't seem to want to release the guarantee prior to payment. The court will rely on the information provided as accurate, there is a presumption within the small claims track that anything uncontested is proven.

 

If you are intent on forcing the issue it would now seem sensible to make formal application to appoint an expert. Bear in mind if the dj isn't convinced you would lose the fee and possibly lose the costs of a hearing to dispose of the matter so your reasons must not leave any ambiguity.

[f16]

No [requirement] but it is apparently pressing the dj to make a decision on varying the order as it cannot force the council to attend and doesn't seem to want to release the guarantee prior to payment. The court will rely on the information provided as accurate, there is a presumption within the small claims track that anything uncontested is proven.

 

If you are intent on forcing the issue it would now seem sensible to make formal application to appoint an expert. Bear in mind if the dj isn't convinced you would lose the fee and possibly lose the costs of a hearing to dispose of the matter so your reasons must not leave any ambiguity.

 

Mike thank you for "sticking" with us on this.

 

Are you saying:

 

1. respond to the roofers letter.

Or

2.fill in a N244 send to the Court.

Or Both 1 +2 ?

 

If only 2.

What sort of witness evidence/statement would be acceptable ?

 

I could prove this case standing on my head, both hands tied and operating a "Pogo stick". ....

I can "Talk" kinger through various "Tests" to prove the cause of the leak.

But if Kinger put that evidence forward it would get rejected on the grounds of Kinger not being a Roofer/Builder.???

[Mike_hawk]

Not sure what good responding would do....... it made a decision to refer the matter to the court in an effort to undermine the earlier order. The fact that the build is still suffering from the ingress of water should assist kinger.

 

Witness evidence supporting the application would be Kingers statement of facts, the court wants to know what it is being asked to do and why..... statements are taken at face value, if Kinger stated that he had taken advice and carried out numerous tests it would be acceptable as evidence to the court. It's how that evidence is weighted which could be an issue.

[f16]

Mike,

If Kinger submitted a simple "plan view" of his house with measured distances marked from the center of each Velux

To the center of the alleged area of water ingress.

Pointing out that .

 

If water is coming down the "Cavity" from the first floor flat roof

then it could land on the "breathable membrane" (which is at a 13.5 degree pitch) so should therefore run down into the gutter.

 

How is it traveling X meters sideways to Velux 2 and X meters more to Velux 1 ?????

 

There are other more time consuming methods.

Like covering the alleged leaking flat roof with a plastic sheet. The downside we wait for the rain.

 

Place a "sprinkler" on the new extension roof (Test carried out 4 times while thread has continued. Leaks every time).

But roofer could argue that sprinkler is not "rain"

 

Hack off plaster work around window in bedroom under flat roof to see if "cavity bats" (wall insulation) is dry.

But this is more disruption for Kinger and his family.

 

There are another 2 options in addition to the above.

 

Do you think the "plan view" of the building and the application of "logic" is enough ?????

[Mike_hawk]

I think if Kinger can provide the court with enough evidence wrapped up in a single page witness statement it should suffice. I'm not sure that the judge would be overly interested in the technicalities of each and every test at the application stage, this is purely to drive home the point that he believes the roofers position is flawed and an independent experts report is required. the judge may or may not agree but it seems sensible to apply before the roofer is granted his fee uncontested.

[Kinger122]

I think if Kinger can provide the court with enough evidence wrapped up in a single page witness statement it should suffice. I'm not sure that the judge would be overly interested in the technicalities of each and every test at the application stage, this is purely to drive home the point that he believes the roofers position is flawed and an independent experts report is required. the judge may or may not agree but it seems sensible to apply before the roofer is granted his fee uncontested.

 

 

 

Hi Mike. I already applied to the court last week but I have not filled in a N244 form because I asked the court and they said just to send a letter in. I have also called the court today and they have said that the judge has already considered all paperwork and will reply to parties either this week or next. They didn't seem to know what a N244 was. Should I send a N244 form now or shall I send one later? I had not posted that I had contacted the court earlier as I was not sure who was viewing the thread.

 

 

Shall I re-submit my application with a N244? Or is it too late?

[Mike_hawk]

Not sure that you've made any application as yet Kinger, your correspondence merely asks the court to consider your conflicting account of events prior to serving notice.

 

Weighing up the pros and cons I think you should file a formal application, you say you are prepared to underwrite the costs of a part 35 expert witness if a report doesn't come down in your favour so for the sake of an additional £45.00 it has to be considered good value for money in the event that you need a second stab at convincing the court of the need for a sje.

 

I'm not sure that the case can be disposed of on the papers alone, the order hasn't been complied with and the other side are now seeking to vary the order and summons a witness which [if granted] will probably attract greater costs than the instruction of an expert. If it were not so central to your case I'd probably suggest gambling on favourable directions and sitting on your hands for a couple of weeks until the notice arrives.

 

My feeling is that the court will not keep returning to the same questions and the next notice will contain a date for disposal hearing, if that is the outcome it would be useful to have an application on file which can be dealt with at the same time.

[Kinger122]

Not sure that you've made any application as yet Kinger, your correspondence merely asks the court to consider your conflicting account of events prior to serving notice.

 

Weighing up the pros and cons I think you should file a formal application, you say you are prepared to underwrite the costs of a part 35 expert witness if a report doesn't come down in your favour so for the sake of an additional £45.00 it has to be considered good value for money in the event that you need a second stab at convincing the court of the need for a sje.

 

I'm not sure that the case can be disposed of on the papers alone, the order hasn't been complied with and the other side are now seeking to vary the order and summons a witness which [if granted] will probably attract greater costs than the instruction of an expert. If it were not so central to your case I'd probably suggest gambling on favourable directions and sitting on your hands for a couple of weeks until the notice arrives.

 

My feeling is that the court will not keep returning to the same questions and the next notice will contain a date for disposal hearing, if that is the outcome it would be useful to have an application on file which can be dealt with at the same time.

 

Thanks Mike, I agree with you 100%. Just a few questions

 

 

• Shall I tell them to disregard my earlier letter/statement?
  
• Do I just attach a statement to the form (it says I can on one of the tick boxes) and write it the same way I did my initial witness statement with all evidence and photographs? Or Do I just briefly state my reasons and then provide full evidence later?
  

Thank you for sticking with me on this.

[Mike_hawk]

No to the disregard... the DJ will have sighted its content and your position remains unchanged.

 

Yes to attaching your evidence in the form of a witness statement and pics, whether its later found to be water ingress from cavity of main build it should at least grab the DJ's attention when viewing the case notes. Add a little history to include the previous order, chronology of subsequent events and where you believe the other side has failed to comply or has undermined the order.

[f16]

Cheers Mike.

Kinger can't file it with the Court until Friday...

 

Do you think that will be OK ??

[Mike_hawk]

To be frank the order will probably be drafted before the app goes in front of the judge, this is primarily to ensure that something is filed just in case a hearing to dispose of certain issues is allocated.

[f16]

So. The N244. It's kind of "Belt and braces" for Kinger ?. ... In "Layman" terms.

 

Translation : (for "younger" readers)

 

We don't want Kingers trousers "falling down" at this point.

 

That's like me getting a "warm beer"

[Kinger122]

I have written the witness statement and I would be grateful for any feedback before I send it off. Thank you

[Kinger122]

Witness Statement

Background

After the judgement on the 3rd April, the Claimant has not adhered to the order. The events since the ruling are the following:

 

1. The Claimant sent me an email dated 3rd April 2014 in which he stated he wished to attend to “rectify issues stated in the judge’s directions.” The Claimant informed me he was then going to instruct the building inspector to attend to sign off the work. The Claimant stated he would have an insurance backed guarantee ready to hand over. As I had been away for my wife’s birthday, I did not reply to the email until the 15th April. I apologised to the Claimant for the delay and I informed the Claimant that the inspector should attend first. I felt it was in both our interests to identify all the issues prior to remedial work. (Doc 1)
   
2. On 16th May 2014, the Claimant sent an email again (Doc 2) requesting to carry out remedial work without a prior inspection by the building inspector. On 22nd May 2014 I again informed the Claimant I did not feel it appropriate for remedial work to be carried out until an inspection had been carried out .(Doc 3)
   

 

 

 

 

 

1. On 1st April 2014 the building inspector "1" attended with his colleague "2" from Building Control. Mr "1" sent an email dated 2nd April 2014 (Doc 4) where he stated his findings. In particular he wrote:
    
   “The roof cannot currently be classed as being suitable to meet functional requirements and in its current condition a completion certificate would not be issued for the extension works. I would recommend that you contact "roofer" to undertake the necessary repairs to make the roof watertight and if this is demonstrated then a completion certificate would be issued upon eventual satisfactory completion of works.”
    
   In addition, Mr "1" suggested that if the leaks could not be rectified that:
   

“You engage an independent chartered surveyor, or an experienced roofing contractor, to survey the works for you and to act as a clerk of works during the repair process.”

It is in my opinion that Mr "1" felt that the inspection ordered by the court was not something which could be carried out by building control and wrote the following after I had raised a number of issues with the roof which had been brought to my attention by an experienced roofer and the manufacturer of the windows, Velux:

“Such detailed inspection does not form part of the building regulations inspection regime. “

 

1. After the building inspector’s attendance at my property on 1st May 2014, I emailed the Claimant to identify which day he could attend to carry out repairs over the next two weeks. The Claimant informed me that the 12th May 2014 was convenient at 8:30am which I confirmed. (Doc 5, 6)
   
2. On 8th May 2014, I wrote to the Claimant stating that building control were unwilling to attend when they planned to carry out repairs on the 12th May and I suggested they contact building control. The Claimant replied on 9th May 2014 stating that Mr "2" was happy with the velux windows and that they do not leak; a contradiction to Mr "1's"earlier email. (Doc 7) Two options were provided of which I informed the Claimant I was happy to allow their workers to attend as agreed. I also provided photographs of the leaking windows. (Doc 8) (Pic 1)
   
3. 9th May 2014 the Claimant sent an email stating that they would forward the photographs to Andrew the contract manager. (Doc 9)
   
4. On 14th May 2014, I emailed the Claimant stating that since the attendance of their workers on 12th May 2014 the roof was still leaking and provided photographs. (Pic 2) The Claimant replied stating that after their inspection the area was “bone dry.” They also decided that our business had been concluded and that payment should be made within 14 days in order for them to produce the 10 year warranty as agreed, despite stating on 3rd April 2014 that they would have a insurance backed guarantee ready to hand over. The Claimant also stated that there was an internal leakage within the cavity. (Doc 10)
   
5. On 16th May 2014 I replied to the Claimant’s email detailing why I was unable to make payment. I also informed the Claimant that they were not adhering to the order by requesting payment prior to the issue of an insurance backed guarantee. Furthermore my roof was still leaking and no approval had been given as to the condition of my roof. (Doc 11)
   
6. On 16th May 2014, the Claimant replied stating that their investigation proved there was no leakage from their workmanship. They informed me the insurance had been requested, despite them having since the 3rd April 2014 to do so. They informed me that they would apply to the court and no longer wished to communicate with me as I “......have raised with regards to a leak to once again avoid payment.” (Doc 12)
   

 

Reasons for Application to Court

 

1. The Claimant has failed to prevent the leak
   
2. Building control have stated that inspecting and evaluating the roof is beyond their remit
   
3. The Claimant is requesting payment prior to the production of an insurance backed guarantee, contrary to what was agreed in court.
   
4. The Claimant is stating the cause of the leak is due to internal leaking in my main property. I do not feel that this is the case, nor it can be determined from a ten minute visual inspection.
   
5. I have made enquiries and neither the Claimant nor any of his employees have attended any training by Velux and are therefore not approved to install their windows. As the roof is less than the correct pitch of 15 degrees, I do not feel they are suitably qualified to install aforementioned products correctly and safely (Doc 13)
   

As I have been unable to progress with my building work since October 2013, I kindly request the court to vary the order to ascertain the cause of the leak and the workmanship of the roof. If the inspection identifies that there are indeed substantial flaws with the roof, may I request the court to reinstate my counterclaim to allow me to put right the roof and bring this matter to a close. I have conducted research and found xxxxx from “xxxxx Building Surveyors to be suitably qualified. He is the only Surveyor in xxxxx registered as an Expert Witness for xxxxxxxxxxx. I have attached his CV for your consideration. I request you vary the order to allow the instruction of a single joint expert.

 

 

 

I believe this witness statement to be true

 

 

 

Defendant 30/05/2014

[Kinger122]

I am sorry about the formatting. I could not get it to paste from a word processor correctly. Thank you

[f16]

Kinger,

 

"Reasons foe application to Court"

1 Remove "Prevent". Sub. "Rectify"

2 Velux screws not changed. (agreed in Court)

3 Repair to window reveal. (agreed in Court)

 

I would consider removing your point 5. Re Velux training. (Save that. ... Don't fire all your bullets.)

We can "Beat them round the head" with that later.

 

Take Care Mate F16

[ScarletPimpernel]

I would change the end of point 3. to "contrary to the order of the Court".

[Mike_hawk]

All looks fairly concise Kinger, perhaps move the final paragraph and your reasons to the top of the page as it will probably only be skim read with the app.

 

Start with something like 'This witness statement is in support of my application for relief to instruct a single joint expert in the above case..................' followed by your text and the list of reasons

 

Don't repeat numbering, keep everything in sequence for each paragrapgh.. where there are multiple lines such as your reasons list them as i, ii, ii or a,b,c...... I know it seems petty but it will save time later if you need to refer to anything within the document,

[Kinger122]

Thank you for the input all. I will correct the numbering and make the changes. It would not paste correctly into the thread and I was unable to edit the numbering. Probably due to the formatting.

 

 

I have a Velux inspector at my property and he has told me that the installation of the windows in terrible. He is taking photographs and will provide me with a report tonight.

 

 

Is it a good idea to send this report in with the N244? Or shall I wait until the hearing, if indeed there is one?

[Mike_hawk]

I'd include it and make reference to it as an exhibit within the statement. It may be overplaying it a little and probably won't be looked at with any degree of interest until/unless there is a further hearing. You're pretty much at sh*t or bust stage with this though so the more ammunition you can throw at it the greater the chance the dj may pick up on something and direct in your favour.

[Kinger122]

I'd include it and make reference to it as an exhibit within the statement. It may be overplaying it a little and probably won't be looked at with any degree of interest until/unless there is a further hearing. You're pretty much at sh*t or bust stage with this though so the more ammunition you can throw at it the greater the chance the dj may pick up on something and direct in your favour.

 

 

 

Thanks Mike. I'll post the report when I receive it. Do I need to serve the Claimant with the documents which I am sending to the court? What is the procedure?