Small Claims – Evidence vs Expert Witness Reports I am currently in dispute with a builder over a patio

[Kalozo]

I am currently in dispute with a builder over a patio

- there have been several attempts to remedy the situation over the past 12 months

the patio has been re-laid but there are still significant issues.

 

Last time the builder was on site I unfortunately swore about the situation not directed at the builder.

 

The builder became very aggressive and intimidating

- shouting and swearing at me.

 

I asked him to leave the house and he continued.

 

Fortunately, at this point my wife came home with my daughters and she could hear the builder shouting from outside the house.

 

I managed to get the builder into the front garden where he continued to shout and swear at me in front of my wife and 5 and 3 year old daughters.

 

My wife asked him to stop multiple times.

We got the children in the house and then he eventually left after a final tirade.

 

In the evening the contractor sent a text to my wife rather than me acknowledging his behaviour had been inappropriate.

 

He is offering to carry out further remedial work but we are obviously reluctant to have him back on site after this situation

- he is a big guy.

 

Where do we stand legally if we don't feel comfortable having him back on site?

Edited August 9, 2017 by Kalozo

[unclebulgaria67]

Did the builder threaten to cause you physical harm or cause anyone physical harm or to damage property you own ?

 

This is important, because swearing and being annoyed are not criminal actions. They might breach the peace and be alarming to other people, but they are not threats of violence to do others any harm. If he thhreatened to break your legs, punch you in the face etc, then it is a different matter.

[Kalozo]

He did not threaten physical harm or damage to property.

 

But he wouldn't leave the property when asked.

 

We are about to start a small claims against him at which point he has offered further remedial work.

 

We are uncomfortable having him back on site given his behaviour. Not to mention lack of confidence - this will be the 4th attempt to lay some of the patio.

 

Given his behaviour and lack of confidence, do we have to accept his offer of remedial work before progressing the small claims?

[unclebulgaria67]

Can you briefly explain the problems with the patio work done by the builder.

 

Can you provide details of the 3 attempts by the builder to carry out remedial work.

 

What was required ?

 

How did they perform ?

 

Time periods involved between date patio work done and each of the 3 attempts to fix the problems you identified.

[Kalozo]

June 2016 - Patio laid

 

July 2016 - a number of slabs become loose and are re-laid

 

Aug 2016 - more slabs become loose including ones that had been re-laid

 

Sept 2016 - complete patio lifted and re-laid

 

Apr 2017 - patio used for first time after winter. Slabs are loose and contractor acknowledges there is an issue

 

July 2017 - contractor offers to repoint and relay the two slabs he lifted to inspect the bed.

But now does not acknowledge issues with loose slabs

 

July 2017 - visit to site with aggressive behaviour

 

July 2017 - start to formalise process with letters to contractor

 

July 2017 - contractor makes a number of false, unsubstantiated accusations such as walking and riding bikes on patio while it was being installed

 

I am now struggling to progress the situation with a contractor who lies, we have no confidence in and has become aggressive.

[unclebulgaria67]

Your problem in taking this to court is always going to be the builder defending the claim,

arguing about the merits of the claim

and amount you are claiming.

 

It could take months and even if you ended up with a judgement in your favour,

the builder might not pay up.

 

Points for you to consider and questions .

 

Have you had the patio work inspected by a garden landscaping expert,

who can look at the quality of work and quote for the remedial work that is required ?

 

This is to have another opinion on the quality of work and cost of work required to bring the patio up to a decent safe standard.

 

Did the builder advertise themselves as specialising in laying patios ?

Are they are a member of any trade organisation

e.g federation of master builders etc ?

 

How did you find the builder e.g leaflet through door ?

 

Is the builder a sole trader or are they are noted as a limited company ?

 

Does the builder trade from commercial premises or from a residential address ?

 

You have to be careful before you start court proceedings,

as you don't want to end up more frustrated than you are now.

[steampowered]

There is unfortunately no proof of what was said in your front garden.

 

If you don't let this person back on site,

I think the reality is that he is not going to fix the patio.

 

You are unlikely to get much out of him through the courts.

[Kalozo]

Hi,

 

I am in a dispute with a builder about a patio installation.

 

To confirm whether I had a case,

I obtained and paid for an independent assessment by a reputable company that was accredited by all the relevant trade bodies.

 

I also chose someone out of the local area to carry out the assessment.

 

I used the assessment report as part of the evidence with the letter before action.

 

I filed a small claim which the builder has defended.

 

The defence states that the

 

“report does not comply with the Practice Direction at 3.2 of CPR Part 35 on expert testimony and as such, carries no legal weight.”

 

Will this report be inadmissible in court or can it still be used as evidence?

 

Thanks in advance…

[dx100uk]

merged with you existing thread for history

[BazzaS]

Hi,

 

I am in a dispute with a builder about a patio installation.

 

To confirm whether I had a case,

I obtained and paid for an independent assessment by a reputable company that was accredited by all the relevant trade bodies.

 

I also chose someone out of the local area to carry out the assessment.

 

I used the assessment report as part of the evidence with the letter before action.

 

I filed a small claim which the builder has defended.

 

The defence states that the

 

“report does not comply with the Practice Direction at 3.2 of CPR Part 35 on expert testimony and as such, carries no legal weight.”

 

Will this report be inadmissible in court or can it still be used as evidence?

 

Thanks in advance…

 

If an expert witness is needed, the court must give its permission, so if you haven't got the permission of the court, the court MIGHT choose to disallow the report.

Usually, for a small claims track case, a single joint expert witness is instructed.

 

CPR 27.2 notes:

27.2

(1) The following Parts of these Rules do not apply to small claims –

(e) Part 35 (experts and assessors) except rules 35.1 (duty to restrict expert evidence), 35.3 (experts – overriding duty to the court), 35.7 (court’s power to direct that evidence is to be given by single joint expert) and 35.8 (instructions to a single joint expert);

[Kalozo]

Thanks BazzaS...

 

I haven't submitted the N180 yet and so it looks like I have two options:

 

1) I submit the report I have as evidence and hope that the court doesn't disallow it. If the court does disallow it can I at this stage then ask for an expert witness to be instructed or is my case basically blown apart?

 

2) I fill in the N180 and request an expert witness is instructed.

 

Are there any other options e.g. State the report I have already obtained on the N180?

 

Thanks

[AndyOrch]

What else does their defence say...surely they are relying on more than just CPR 35 ?

 

Andy

[Kalozo]

There is a lot of history here. The installer laid the patio and slabs became loose. Remedial work was carried out. The slabs became loose and further remedial work to completely lift and relay the patio was undertaken.

 

The Defence acknowledges that there have been two attempts at remedial work but denies there are now any issues.

 

This did not resolve situation and there are still lots of issues with the patio:

• Slabs are loose and rock and jointing has failed

• Patio is at damp proof course level in places

• Air bricks are half covered

• Falls are not correct so there is water ponding

 

All these things are documented in the report I already have by a reputable company that is accredited by all the appropriate trade bodies. But obviously it isn’t a court instructed expert witness report.

 

The defendant denies any issues:

• Claims slabs are not loose and goes to great length to explain the work they did

• Claims that pre-contractual discussions agreed the height of the patio against the property (nothing in writing). I did not agree to breach the damp proof course and block air bricks

• Blames any ponding on the slabs I provided in that they are inferior and riven surfaces. The slabs are from one of the three leading providers of slabs in the UK

• Rejects the report due to CPR

 

If the court rejects the report, it will be very difficult for me to prove the issues.

 

It feels like I have a few options:

1. Risk submitting the report as evidence and hope it is allowed

2. Fill in the N180 and request another expert report (but it will be difficult to fid anyone more qualified)

3. Fill in the N180 and state that I already have the report

4. Fill in the N180 and put the same person down effectively promoting them from an expert advisor to an expert witness. This surely runs the risk that the defendant says the person is no longer independent?

 

Any advice would be great. Thanks

[Kalozo]

My small claim is progressing slowly and a key element of the builder's defence is that the paving slabs I provided were inferior. They are actually a CE certified slab from one of the top 3 suppliers in the UK.

 

I sent an email to the builder with a link to the slabs I intended to buy before accepting his quote. He never raised any concerns at that point. When he did the job he never raised any concerns about the quality of the slabs.

 

Is there any case law that effectively states by accepting the materials provided by the customer and continuing with the job, the builder deemed them to be fit for purpose and of acceptable quality? I can find lots of discussion from the motor trade but haven't been able to find any specific examples of case law.

 

Thanks...

[AndyOrch]

Print the following off as part of your evidence.....

 

https://www.concretecentre.com/Concrete-Design/Specification/CE-Marking-and-Concrete.aspx

 

You have a copy of your email informing....its for him to prove he advised against...if he laid them he must have been content.

 

Andy

[Kalozo]

I have an ongoing small claims with a builder. At a preliminary hearing at the beginning of March we were ordered to jointly instruct an expert witness.

 

We are now 3 months on and the builder continues to frustrate the appointment of the expert witness – taking weeks to reply to emails, stating emails have gone missing, changing his mind on things that we have previously agreed – e.g. evidence disclosure for the expert.

 

The latest attempt is to say that I have compromised the expert’s independence during the appointment process and so the builder is now rejecting the expert witness we had jointly agreed to instruct.

 

Any advice on how I can make progress and stop the builder from frustrating the process would be much appreciated.

 

Thanks in advance…

[BankFodder]

What's the value of the dispute? What orders/timelines have been set by the court for assembling your expert testimony?

[AndyOrch]

See CPR 35.9

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35

 

Power of court to direct a party to provide information

 

35.9

Where a party has access to information which is not reasonably available to another party, the court may direct the party who has access to the information to –

 

(a) prepare and file a document recording the information; and

 

(b) serve a copy of that document on the other party.

[Kalozo]

Value of claim is £10k.

 

The order was:

 

"The parties may jointly instruct an expert as the Claimant shall supply the Defendant with 3 suggested experts from which he must select one, if he does not agree any he will suggest 3 from which the Claimant will select one. In default of agreement the Court will nominate one."

 

The builder rejected 2 out of the 3 experts originally and has now rejected the 3rd - claiming I have compromised their independence.

 

So it looks like the builder must now propose 3 expert witnesses? My concern is this could take another 3 months as he drags out the process?

 

Andyorch - are you suggesting I write to the judge?

[AndyOrch]

Yes inform them and let the court nominate

[Kalozo]

I have written to the judge detailing the Defendant's attempts to frustrate the process and asking the Court to appoint one of the 3 expert witnesses I have nominated.

 

Thanks for your advice...

[Ganymede]

Don't forget that once the Court appoint an expert you'll still have to draft and send the letter of instruction.

[Kalozo]

We have agreed instructions - took 2 months to agree. I followed the instructions and sent my evidence bundle I had disclosed at the preliminary hearing to the expert.

 

The Defendant claims the evidence bundle shouldn't have been shared with the expert even though that's what the jointly agreed instructions state. During the 2 months it took to agree the joint instructions the Defendant never once raised concerns about the content of the evidence bundle.

 

At the preliminary hearing the judge even asked the Defendant if he had any issues with the evidence bundle being shared with the expert witness. The response was "this has not been considered and I will advise the Claimant"

 

The Defendant is now saying the the expert is compromised because the evidence bundle shouldn't have been sent to them.

 

Just another attempt to frustrate the process...

[Ganymede]

What kind of expect is it and what was in your evidence bundle?

[Kalozo]

Patio installation expert witness.

 

Evidence bundle contained my witness statement, contract information, photographs, manufacturers' specs and installation instructions and a previous independent assessment report on the state of the patio.

 

The Defendant is objecting to the previous report (which the expert witness has confirmed he has not looked at and will not look at). Both the Judge and the Defendant were aware of this report at the preliminary hearing. Indeed at one stage the Judge was going to accept it as expert evidence until the Defendant objected and asked for a jointly instructed expert.