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Hi

I currently have had a negligence claim issued against the structual engineer and the surveyor of my property,

as a result of their negligence i have not been able to sell my property with out work being done to rectify the problem.

 

I contacted a no win no fee solicitor and they have taken the case on,

an expert witness has agreed there is negligence

however it has been decided that both engineer and surveyor are liable.

 

As a result they have now served the claim form against both and I received the following email on friday.

 

what I am having trouble understanding is why the CFA I signed in 2011 does not cover the barristers success fee and as a result I have to pay a maximum 25% of the money i recover from one defendant to them.

 

My paperwork says that it is reclaimed from the otherside.

 

Also, they are asking me to consider making an offer to settle it early

however i do not know exactly what the claim is worth as the claim was made for the amount for fixing the problem, plus £1000 for loss of enjoyment plus damages (which I have no idea what this includes or refers to)

 

The house has also lost value since I attempted to sell it in 2010 so i will lose out there too.

There is also other costs such as accomodation whilst works are completed which they have asked me to give a cost of.

 

The reason i have posted this is because I am now concerned that my solicitor might be looking for the easiest option and rather than looking after my best interests and getting me what I deserve.

 

I would like advice on whether this is how these claims usually proceed and could i be losing out if I make an offer?

Is there anything I can ask the solicitor to ensure that are acting in my best interests?

Is the explanation on the CFA in the email correct?

Thanks for any help/advice given.

 

 

 

 

Email from solicitor

 

I am writing to update you in relation to your claim.

 

As you are aware, I served the Claim Form and Particulars of Claim in Decemberl ast year on both --------.

 

I am pleased to confirm that both Defendants have instructed solicitors;

These are both firms I have dealt with on many occasions, as they often act for professional indemnity insurers.

 

I have spoken to the solicitors at both firms dealing with the claim.

 

As you may recall, it was necessary to issue a protective Claim Form in August last year in order to avoid your claim becoming statute barred.

 

I delayed service of the court papers until such time as we had obtained expert evidence,

as it was not entirely clear when the claim was issued whether liability rested with either or both Defendants.

 

In Professional Negligence Claims, there is a protocol which the Courts require the parties to follow which,

amongst other things, sets various time limits by which certain stages of the litigation process have to be carried out.

 

Ordinarily, a Letter of Claim is sent to the Defendant(s)following which they have 21 days to acknowledge the Letter of Claim and thereafter 3 months from the date of the Letter of Acknowledgement to provide their formal response known as the Letter of Response, in which they need to state whether they accept or deny liability.

 

It is not uncommon, and it is the case here, that we have had to issue protective court proceedings before the Letter of Claim has been sent.

 

Accordingly, the way that this is dealt with is to stay theproceedings to enable the Protocol to be complied with, i.e. a Letter of Claim sent and a Letter of Response provided by the Defendant.

 

In light ofthis, having spoken to the Defendants’ solicitors, we have agreed a stay of approximately 3 months to 2014 so effectively, the court proceedings are now “on hold” to allow the Protocol to be complied with.

 

However, interestingly, when I mentioned to solicitors that I would shortly prepare a Letter of Claim,

they were of the view that all the information they needed was in the Particulars of Claim therefore,

it was not necessary to repeat this information in the Letter of Claim (as it will obviously increase legal costs).

 

Instead, solicitor hasasked me to provide any documentation in my possession by way of disclosure so that they can assess the merits of your claim.

They made the point thatbecause the alleged negligence took place so long ago,

their client is of the view that they are unlikely to have retained any paperwork

and so they are really reliant on your documentation.

 

The courts positively encourage early disclosure of documentation and certainly, if the Letter of Claim had been drafted before court proceedings were issued,I would have provided thisi nformation with the Letter of Claim.

 

Accordingly, I will now go through the paperwork that you provided to me (it is not particularly voluminous)

and I will provide a copy of any documents, which are disclosable to solicitors.

 

They then intend to review the paperwork and they can utilise the period of the stay in which to do so.

 

I mentioned to solicitors that solicitors had confirmed they did not require a Letter of Claim.

However, they did not give me a substantive response at that time whether they were prepared to take the same view, and so I will write to them shortly to establish whether they simply wish me to provide disclosure of the same documents provided to and simply rely on your case as pleaded in the Particulars of Claim.

 

In the meantime, I indicated on a without prejudice basis to solicitors (I did not unfortunately have the same conversation with solicitors as the solicitor was rushing to leave the office before the Christmas break and so the focus was on agreeing the Consent Order) that early settlement of this claim would be preferable before legal costs increase.

 

As I am sure you will appreciate, it would be easy for legal costs to escalate and become disproportionate to the value of the claim,particularly as there are a total of 3 sets of solicitors involved in this matter.

 

I therefore suggest that you consider putting in an early offer of settlement at this stage.

 

We have quantified your claim to the extent of the cost of the rectification works and a nominal amount for stress and inconvenience but there are other elements of your claim that still require quantification.

For example, you mention that you would need to be out of your property for up to 8 weeks whilst remedial works are carried out.

Are you able to provide me with an indication of what your likely costs of accommodation would be during that time?

Once we have a better idea ofthe total value of your claim, you will need to consider the level of offer that you wish me to put forward on your behalf.

The idea is to put forward an offer that will hopefully be seen as commercially attractive to the Defendants and as such, you have to be seen in making the offer to be conceding some ground on the full amount that you are claiming.

 

The offer is without prejudice and is made for the purposes of negotiating settlement only;

the Court would not be shown the offer during a trial when they are determining what damages to award you if you have succeeded on the issue of liability.

 

The offer made would be done so as what is known as a Part 36 Offer.

The advantage of making a Part 36 Offer is that it can provide costs protection.

Once we have a figure in mind, I will explain to you in greater detail the implications in relation to costs of making a Part 36 Offer.

 

In considering what level of offer to make, I would also like to remind you that your barrister does have concerns about the quotations you provided, which I share.

 

I appreciate that when we have previouslyspoken, you have stated that the works required will not form any betterment of your property but I still think that this could be the subject of some attack and so this needs to be reflected in any offer that you consider putting forward. In making the offer,

 

I would also be suggesting to the Defendants (as I will be putting the offer to both of them) that liability is apportioned on a 50:50 basis.

 

Obviously, once the Defendants havereviewed the papers, they may be of the view that one party has greater liability than the other on a percentage basis or alternatively, one or both Defendants may deny liability entirely but if that is the case, it does not necessarily mean that they will not look to settle the matter commercially.

 

At the end of the day, if, for example, the offer you put forward was £, it is much more attractive to a Defendant to know that they would actually only be paying £ each.

 

Finally, I need to explain a funding issue with you. As you are aware, you entered into a Conditional Fee Agreement with this firm,which covered your claim against and was worded so that it covered any other Defendant related to the matter.

 

In light of this, your CFA with this firm covers your claim against both defendants, which is obviously advantageous to you, as it became apparent very close to limitation that may potentially have some liability in this matter.

 

However, I have been contacted by your barrister, and she has looked at the wording of her Conditional Fee Agreement and it covers the claim against one only.

 

This means that the CFA does not cover the work that she has carried out in relation to ,

albeit that they are inexorably linked.

 

Her clerk has therefore just sent to me another CFA for this firm to enter into with Counsel, which covers the claim against .

 

The second Conditional Fee Agreement covers all work that Counsel had carried out on or after December 2013 (which isthe date that she drafted the Particulars of Claim) in relation to Group.

 

However, in April of this year, some sweeping reforms, called the Jackson reforms, took place and the basis of Conditional Fee Agreements changed at that time.

 

Prior to 1st April 2013, parties entering into a Conditional Fee Agreement were able to charge the Defendant

(in the event that the claim was successful) a success fee in addition to their base costs.

 

Post 1st April, the solicitor/barrister entering into a Conditional Fee Agreement is no longer able to recover a success fee from the Defendant and instead is entitled to recover up to 25% of the settlement or judgement sum awarded to the Claimant.

This means that in the event that I recoverdamages for you, whilst I will recover my costs,

disbursements and success feefrom the Defendants and Counsel will recover her fees and success fee from the Defendant, the extent to which she will be able to recover her fees in this way only extends to ,

as that is the Defendant covered by the original CFA that Counsel entered into.

 

In respect of Counsel’s fees relating to work carried out in respect of after 6th December, Counsel would still be able to claim her base costs from but would be able to charge you up to 25% of your damages under the new regime.

Whilst this is the technicality’s of the new regime’s CFA, I have spoken to Counsel

and she had indicated that she would be prepared to take a pragmatic view on theproportion of your damages that she would actually seek to recover from you.

Would you please confirm that you are happy for me to enterinto the second CFA with Counsel.

Edited by citizenB
formatting

Rbs £114 + contractual at 29.84% I won total=£125 no laughing it's a win

Don't moan about it DO SOMETHING ABOUT IT :D

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Unfortunately your solicitor is correct about the CFA. You can blame the government for that one.

 

As for quantum, make sure your solicitor is aware of your costs of moving out and that your property has decreased in value and they will do the rest. You may need an estate agent to value your property to prove it has decreased in value.

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It sounds like the CFA you signed in 2011 does cover the barrister's success fee. The point your solicitor is making is that this CFA only covers your claim against one of the two Defendants. Accordingly in relation to this Defendant you should be able to recover the success fee from the other side, as the old rules will apply to this CFA.

 

However you do not have a CFA with the barrister which covers your claim against the other Defendant. You need a new CFA which covers this Defendant. Any new CFA would be under the current rules which prevent recovery of success fees.

 

An early offer is a very good idea for several reasons:

  • Making a Part 36 offer is a very good tactical move. You can google for more information on Part 36, but basically if you make a Part 36 offer which is not accepted and you beat it at trial, then you are likely to recover more costs than if you did not make the offer.
  • The other side may be willing to settle for a higher amount now than they would later. This is because they would have no need to spend thousands in legal costs.

There are several aspects of your case which sound weak to me:

  • The burden of proof will be on you to prove that the other side was negligent back in 2011. I'm not sure what evidence you have but this will not necessarily be easy. I'm not sure what exactly the expert report says but beware of drawing concrete conclusions, expert reports do not usually say something like 'the engineer was negligent' in such clear terms. If this is not a joint expert report then the other side will be able to use its own expert in due course.
  • There are several significant legal problems with your claim for loss in value of the property. Even if you can prove that you made a firm decision to sell back in 2011, the other side will say that you could have sold if you simply dropped the price or had the work done, thus avoiding any drop in the property market. You may also have what is known as remoteness of loss issue which would bar recovery.
  • The claim for loss of enjoyment damages sounds speculative. This kind of damage is generally restricted to contracts with enjoyment as their purpose (e.g. a holiday) and isn't available in building contracts.

For these reasons it would be sensible to hurry up with properly quantifying your claim (which you will have to do at some point anyway) and making a reasonable offer.

 

Remember that if the solicitors take this all the way to trial and win, they will get much more money than if you settled now. The CFA fee structure incentivises no-win-no-fee solicitors to push easy cases all the way to trial (since that gets them the most billable hours) but to settle difficult cases early (because they don't get paid if they lose). If they are encouraging you to make a settlement offer it is a fair bet that your case is not watertight.

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Thank you for your comments, i am waiting for the solicitor to contact me with regards to the part 36 offer.

I have asked what I shoukd expect the success fee to be and that I would make an offer after I have an idea of that. I also want to ask what else I need to take into consideration costs wise that isnt yet on the claim.

As far the attempted house sale in 2010, I do have all the reports regarding this matter, it is looking like its going in my favour however i am glad of your explanation and i heed your warning. I really do want this settled asap but wanted to make sure I get as much as I am entitled to.

 

Can you tell me what is meant when they claim for 'damages' though please?

Rbs £114 + contractual at 29.84% I won total=£125 no laughing it's a win

Don't moan about it DO SOMETHING ABOUT IT :D

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