Bifolds fitted at incorrect floor level *** Judgment plus Costs***

[BankFodder]

It's the first time I have visited this thread.

 

I don't really understand the technicalities of all this – but it sufficient for me to accept that you are there and that you are very familiar with it and that you have a contract in your hand which you can show has not been correctly executed.

 

That's good enough for me.

 

I gather that the company is prevaricating and even offering a gesture of goodwill – but at some risk to you if something goes wrong.

 

I don't understand why you are continuing the conversation with the contractors.

 

You haven't told us what the total value of this is. Is any of the work that they have done at all useful or is it all a write off?

 

What I mean here is that if you got somebody else in, could they finish the work or carry out reparations and if so how much would that cost?

 

If some of the work which your present contractors have carried out is of value, then how much of the contract price would it be worth paying them after the work was made good by somebody else.

 

I'm asking these questions because we need to estimate what your losses are – because you need to understand what your outcomes would be.

 

If some of the work is good then you wouldn't want to sue for the entire contract price. On the other hand you would have to taking into consideration having the job finished by another company.

 

If you want to say that in fact somebody else would have to start again from scratch then clearly you don't want to pay any of the money.

 

I hope not being too convoluted here, but you can start off by telling us the value of the contract, the value of the work they have done so far – and what would it cost to somebody else to finish it. Then it will be easier to understand what you would have to sue for.

 

In terms of getting involved them on the basis of goodwill et cetera – I wouldn't risk it if I were you. It seems to me that court papers have to be issued so that they are under pressure. You will then find that they start negotiating with you in a totally different way. If you are prepared to forego actually going to court then I would settle for a Tomlin order which properly itemises all the work which needs to be done, to the proper standards, is subject to a final inspection by an independent expert, and setting out a timetable for all of this to happen – failing which you apply for judgement.

 

It sounds to me as if you were being jerked around and you need to take control.

[BankFodder]

Thank you.

 

I think you will need to get two independent evaluations as to what needs doing – and also quotations for the work. You may will need to obtain an expert opinion.

 

You said the work cost £5000. If the final solution is that the work needs to be completely undone and then redone, that means that will cost at least £5000 to redo the work and maybe cost £1000 or £2000 to get rid of the old work.

 

In that case you would be suing for £7000. This is less than the small claims limit.

 

If an expert opinion said that in fact some of the existing work could be left in place and was useful in order to reduce the cost of stripping it out and then replacing it then your claim will be less than £7000.

 

Because you have a duty to mitigate your loss then you would have to accept the cheaper of the options available to you – as long as the quality was at least as good as the quality for which you contracted.

 

I don't think you should bother about ADR. I don't think you should bother about going to the professional association. Professional associations are normally a waste of time and simply look good on paper and may be prepared to discipline their members if there is some real wrongdoing, meaning a breach of ethical standards, for example.

 

In your case, I don't think that they will be any use at all – except that they may be able to recommend independent assessors. If you had an independent assessor who agree with you and was a member of the same trade body and had been recommended by the trade body then this would make their evidence more compelling when it went to trial.

 

 

You don't need a solicitor for this. That would just be another load of money and also the solicitor will waste a lot of your time getting into protracted correspondence. If one day you do decide you need a solicitor maybe to go into the hearing, then you should instruct that person after you've done most of the spade-work[sic] yourself. Frankly if the expert testimony supports what you say then you probably won't need a solicitor.

 

Your best case preparation and your best advocate will be yourself motivated by self-interest, grudge and anger. There's nothing better.

 

Don't start getting irritated by their disrespectful attitude. This is not grounds for bringing an action and it is not something which can be compensated for in the courts.

Anyway, your delays in getting anything done and your loss of control of the situation has not done very much to earn any respect.

 

You should certainly be making detailed statements of everything that has happened because you will need those in the future. Well done on recording your calls. Most people don't. Make sure you keep the recordings properly backed up so you have at least a couple of copies. You should keep notes about the recordings so that you can identify what each one is about in case you need access to them.

 

The first thing you should do is set about getting an independent expert to evaluate the situation and compare it against the written contract and to give you a written opinion. The next thing you should do is to get two independent quotations for the work to put it into the condition that it would have been in had the contract incorrectly carried out.

The next thing you should do is to provide a copy of the expert opinion plus the two quotations to the other side. Giving them 14 days, invite them to carry out their own independent inspection and also cost up the value of the repairs for themselves. If they refuse – then well and good. Nobody can say that you haven't given them a chance.

 

I'm not for one moment suggesting that the existing contractors should be asked to do the work. I think they should not be permitted to do so save under very strict conditions of staged inspections by an independent inspector. I think it is entirely reasonable to say that you now have no confidence in them and as they are now your adversaries, it is no longer appropriate that they carry out the work. They have been given ample opportunity to repair the problem and they have refused. However, you must give them every opportunity to appraise the problem and also to appraise the value in case they want to challenge your quotes.

 

Set your timescales/deadlines and stick to them. Give them 14 days to carry out their appraisal. After that give them 14 days to agree to fund the remedial work or else you will sue them. Then sue them. Don't hang around.

 

If they are prepared to fund the remedial work then it must be in some way in which the payments are guaranteed. You should not stop trusting them.

 

If they are not prepared to give you the guarantees that you want then issue the court papers. I expect you will then find that they will be more ready to negotiate. They will be anxious to reduce costs and to avoid judgement. Once you have issued the court papers then you should only agree to a solution on the condition that it is rendered into a Tomlin agreement on the basis which I have outlined in an earlier post.

 

A Tomlin agreement is an agreement by which a settlement is negotiated between the parties which can potentially bring an end to the litigation. The settlement is put before a judge and it is signed off by the judge. It falls short of a judgement. If the terms of the Tomlin order are breached then you would have liberty to restore the action and seek judgement. You might want the Tomlin order drafted by solicitor but the contractors would have to pay for this.

 

I don't know how big this company is but some of these companies are known to dissolve themselves and then to re-emerge under a different name. It's known here as Phoenixing. If you do issue court papers then one of the terms of the Tomlin order would be that the money for the work is either paid to you immediately or is held in escrow. Paying money into court would be the best solution.

[BankFodder]

I agree that you need to be careful not to incur costs unnecessarily. For this reason I think it would be a good idea to give them notice that you are bringing in an expert. I suppose that if you were able to agree with the contractors as to precisely what the issue is and how it could be made good – leaving merely the question of liability to be decided, then you could by mutual consent avoid the necessity for an expert testimony. This would be useful. I think it would also be useful to propose it so that if they reject it then you are able later on to say that you attempted to mitigate losses and you attempted to reach agreement with the other side before incurring any expenses.

 

You should certainly serve notice on the other side that you will be asking expert to carry out an inspection. You should provide the quote for the inspection to the other side so that they are fully informed. You could even invite them to to agree on the identity of the expert. You can even invite them to be present at the inspection.

 

However you seem to be saying that the solutions being proposed by the other side are not viable because of the way the work was carried out. As long as you are able to express this in a very clear bullet pointed document which a judge will understand and which can be confirmed by your expert then you shouldn't have a lot of trouble.

 

You can see, though, that the other side are already starting to say that they have made reasonable proposals to remedy the situation and that they have given you an opportunity to mitigate your losses and that you have obstructed them. You will have to identify every element of what they say and have an answer to it and also your expert to address each point as well.

 

What is very helpful is that they don't seem to be denying your general position that they got it wrong. It really is turning into a dispute about quantum

 

They are likely to say no to your suggestions but at least then you can show that you have bent over backwards to cooperate with the other side, to reduce costs, and to do everything by agreement.

 

At the end of the day if you win your case then I would say that the cost of an inspection will be easily recoverable. You probably need to show that you have taken quotes from two or maybe even three experts and that you have chosen the cheapest.

 

Don't incur any expenditure without letting the other side know – but give them rigid deadlines such as seven days to raise objections which must be accompanied by reasons. Don't let them draw you into some extended discussion as has clearly been happening until this moment.

 

I don't think you do need a solicitor to draft Tomlin order. We can give you lots of pointers here although we are not experts. However you are a long way from this point and if the other side do agree to enter into a Tomlin order then it will be basically because they have accepted that they are not going to win the argument and so you will look to them to pay the costs.

 

Once again, I don't fully understand the technical information that you are posting here. That's mainly because I would need to look at the situation myself in order to understand and I don't have a complete overview of what has happened. I'm simply suggesting courses of action for you on the basis that you understand the situation and that what you are saying is correct.

 

There is no statutory limitation for beginning a complaint – other than six years in contract and six years in negligence for beginning an action. However, the longer you delay then the more likely people are to raise their eyebrows. If you could have reduced the harm by reacting more quickly – if it had been reasonable to do so – then people may ask why you waited so long

[BankFodder]

Please don't treat this as being dismissive – but I don't need to understand what the dispute is about. All I need to do is to accept your position – whether it is right or wrong. I'm not here to act as a building arbitrator. You don't need to link the pictures.

 

I get the gist of what you have said just now. My recommendation is to keep on moving forward without allowing them to hold you back at all – but making sure that there is a solid paper trail and that they are informed at every step and given opportunities to check or doublecheck at every step. Once you see the papers they will start to take you seriously. That's when you will need to be able to say that they were invited to join in in the process and they refused

[BankFodder]

Well if you can only get one quote and there are solid practical reasons for that, then it seems reasonable to me to go ahead on the basis of one quote but explained very clearly the reason why you haven't been able to find other people.

 

You could also employ little tactic and that is to let your defendants have a copy of the quotation you have received and explained to them the reason why you haven't managed to obtain other quotes and invite them to recommend other companies who they consider have the right level of expertise and experience and who are able to meet the criteria that you are setting – that they are prepared to look at the work from a remedial point of view and also maintain the guarantees.

 

That brings it nicely out into the open and later on if they want to challenge you on the basis that you have only received one quote, you are able to point out that even they were unable to identify other companies. Before that I would go to the professional association and see who else they want to recommend.

 

Of course the expert witnesses are extremely useful in establishing liability. However, the testimony of expert witnesses will not be sufficient to justify the amount of money you want to claim. You need the quotes for that. On the other hand, are the expert witnesses able to say that the work should be completely redone, or that it can be made good – in other words are they able to recommend a preferred course of action. If they are all saying that the existing work has to be scrapped then that will then justify your claim for a new job to be done. In that case you will need to get quotes for the new job. If the expert witnesses are all prepared to say that the existing work can be made good, then that will inform your claim and you will have to settle for that.

[BankFodder]

 

I find your suggestion to invite the other party for quotations of the same criteria as brilliant. I wonder if they would try to produce some cheap self-quotation...

 

 

I'm not sure that I suggested that the other party should be invited to provide a quotation – or at least it wasn't my intention. I certainly think that they should be kept informed of the process and given site of the information you have – but I agree that to ask them to quote would be to invite trouble because as you suggest, there is a serious chance that they would under quote and then use that as an issue in any court proceedings.