Flaws in Defence counterclaim Help

[BazzaS]

13 minutes ago, simeon1964 said:

I was given two options of which he was the only one online and I chose him. Not much of digging?

you could (& should) have enquired (“dug”) further.

you could (also) have proposed your own INDEPENDENT expert.

 

However, the expert’s report says he was jointly instructed and understood his duty to be to the court.

Edited December 24, 2022 by BazzaS

[Manxman in exile]

13 minutes ago, simeon1964 said:

I was given two options of which he was the only one online and I chose him. Not much of digging?

 

Correct.  "Not much of digging".

 

Read #247 and #248

 

Both @FTMDave and I suggested that you check out the different surveyors presented to you.  Bearing in mind you've got £16k at stake, making a choice based on whether or not they're on the internet might not be an optimal way of exercising a choice.

 

Weren't you given an opportunity to nominate an expert?

[simeon1964]

7 hours ago, Manxman in exile said:

the work on the basis that underpinning was required, not piling.

 

You try and revisit Expert report on the explanation of ’ underpinning’ though vague to me.

Piling is Underpinning as well.

1 to pour concrete pads or stool and

2. If depth is great or soil condition cannot be met or too loose to considerable depth then is either driven Pile or augured piles solution. These two options are called underpinning.

 

Some builders hire equipment to carry this operation.

He told me he didn’t have tools for it.  

My builder was to come and do underpinning under the instructions of the structural engineer and his instruction was Piling.

 

He had the drawing.

He was not contracted to come and dig but to do underpinning.

When he came to value the job there was already an inspection hole already excavated. 

 

All the Quotations from tradesmen are specific to the contract of the  builder 

[BazzaS]

4 hours ago, simeon1964 said:

You try and revisit Expert report ………

……..

When he came to value the job there was already an inspection hole already  excavated. 

So? What is your point / what do you want the judge to agree needs to happen as a result of this? and on what legal basis?

 

3 hours ago, simeon1964 said:

All the Quotations from tradesmen are specific to the contract of the  builder 

Again, probably true, but completely devoid of context relating to your case.

 

You need to both make your point and establish its relevance to your case!

[simeon1964]

MIE: My point is Expert didnt explain it as that. and MIE try to separate the two that mean the same thing. Any builder who knows about underpinning should also know the different methods of the operation.

 

@bazzaS

Just making response to one of MIE NOTE

[BazzaS]

OK, I’m out.

Some people just can’t be helped.

[simeon1964]

I am sorry, but your contribute is most appreciated. Dont give up on me. Forgive if am being silly

[honeybee13]

If you would just answer the questions the guys are asking you it seems they're happy to help.

 

But as I see it, often you answer a different question to the one they're asking and that's why the thread goes round in circles.

 

HB

[FTMDave]

Point taken MiE.

 

However, the fact remains that there were 10 months to prepare a cracking WS, and no work was done on it at all.

 

i think your idea to go to the firms that gave the estimates is an excellent one.  After all, at this stage, 24 hours won't make any difference.

 

Use until the 27th to prepare questions.

 

The 28th to visit these companies.

 

The 29th to e-mail the questions.

[Manxman in exile]

3 hours ago, simeon1964 said:

 

You try and revisit Expert report on the explanation of ’ underpinning’ though vague to me. Piling is Underpinning as well. 1 to pour concrete pads or stool and 2. If depth is great or soil condition cannot be met or too loose to considerable depth then is either driven Pile or auguered piles solution. These two options are called underpinning. Some builders hire equipment to carry this operation. He told me he didn’t have tools for it.  My builder was to come and do underpinning under the instructions of the structural engineer and his instruction was Piling.  He had the drawing. He was not contracted to come and dig but to do underpinning. When he came to value the job there was already an inspection hole already  excavated. 

 

Ok simeon - it's very late so I'll try to explain as simply as I can what's worrying me about the difference between piling and underpinning

 

Your post #378 doesn't make sense to me. 

 

The expert report makes it quite clear that "Underpinning and piling are totally different disciplines."  That's the expert saying that - not me.  If you think that underpinning and piling are the same thing, then you need to ask the expert why he thinks they are different.

 

The expert says "The original intention proposed by Hale Surveys was to underpin the front bay structure."  Again, that suggests to me that the expert sees underpinning and piling as two entirely separate things, because he specifically refers to underpinning and not piling.  It also suggests that the original plan (and contrcat?) was based on underpinning and not piling.

 

He also says "Piling is a different discipline usually undertaken by a specialist contractor who has the necessary equipment and skill to undertake this works."  Again, this suggests to me that a builder who might be skilled and competent enough to undertake underpinning might not be sufficiently skilled and competent to undertake piling.

 

What worries me is that because you engaged the builder in respect of Project 1 to carry out Hale Surveys' original intention to underpin the front bay structure, that underpinning is what the builder contracted to do, and not piling.

 

This seems to be supported by para 12 of your witness statement where you say:  "The structural engineer visited and recommended piling to complete the underpinning for Project 1."  This appears to be the first mention of piling from the structural engineer.

 

Do you understand what I'm getting at?  I'm questioning whether your original contract for Project 1 (which I haven't seen) included piling, or whether it only mentioned underpinning.

 

In your witness statement you say the original contract for Project 1 was included as Exhibit 2.

 

Can we please see Exhibit 2 containing the original contract?

 

The point I'm trying to make - in a roundabout way - is that if you only contrcated the builder to undertake underpinning on the instructions of your structural engineer, then I'm not sure a court would hold the builder liable for any additional piling that was required.  Because he agreed to do underpinning, not piling.

 

Do you understand what I'm getting at?

 

I'm leaving this now for Christmas.  I suggest you get cracking with comparing the costings in the expert's report against your schedule of loss and asking the tradesmen who provided your quotes and estimates why their figures are so different form the expert's figures.  And then prepare questions for the expert. 

 

Don't get too hung up on the underpinning versus piling distinction.  I think it's important but it only accounts for about £3k out of a toatl difference of £15k or £16k

[Manxman in exile]

6 hours ago, simeon1964 said:

If this builder had no qualification to tamper with electrical equipment and had connected several cables into the bathroom and cooker extractor fans via another source,

 

tampering with the boiler and with no Fensa authorisation which will warrant my getting qualify people for safety of these appliances.

 

Why would the expert not take these into account and giving Nil amount...

 

Are you saying your builder carried out work he was neither qualified nor permitted to do, against building regulations?

 

Did you specifically include these points in your witness statement or in the instructions to the expert?  If you didn't, how would he know to take these into account?

 

If you did specifically mention them but he didn't address them, then that is a question for the expert - as bazza pointed out

 

That's all I have to say over Christmas.

 

Merry Christmas everybody...

Edited December 25, 2022 by Manxman in exile

[simeon1964]

please help with this draft version please as you suggested:

 

Response Questn Draft 29.docx

[simeon1964]

Scan2022-12-30_062216 Expert Ssheet30.pdf

[FTMDave]

What is your own deadline for sending the questions?  I'm driving all day and won't be able to do any work on this until tomorrow I'm afraid.

 

Do any of the regulars know what Simeon needs to do with the questions?  I'm thinking e-mail the expert, the builder's solicitor and the court, right?

[simeon1964]

No deadline at the moment because the expert report was late and parties to draft questions  for him to reply. 

[FTMDave]

OK, I've corrected the English.

Have a read for accuracy.  For example sometimes you mix singular and plural and it's unclear if you're talking about one item or several.  I think I've understood.  But best to read to be sure.

 

I've marked a section in red which I just do not understand.  You need to make it comprehensible.

I'm not 100% sure what you should do now, but I can't see that it will harm you if you e-mail the questions to the expert and CC to the builder's solicitor.

Also e-mail the questions to the court with a covering sheet, quote the name of the court, the claim number and the parties.  Point out that the court ordered the expert to report to the parties by 11 November 2022 and for the parties to put any written questions to the expert by 25 November 2022.  Despite the court order, the expert only signed the report on 13 December 2022 and it was sent to you on 21 December 2022 so it was impossible for you to respect the court's deadline of 25 November 2022.  However, you have promptly prepared the attached questions. 

Response Questn Draft 29.pdf

[Manxman in exile]

@simeon1964  -  the first question you ask is as follows:  

 

"Expert Report:1 Are you saying that a client should accept an incidental cost of £3000.00 unaware, after a signed agreement between both parties when the client is operating on a fixed budget and had not been forewarned by the contractor despite being privy to all the drawings of the work prior to starting."

 

That goes to the heart of a question I have asked you several times and which you continually evade answering.  What work did your builder actually agree to carry out in respect of Project 1?  Did it include piling or did it only specify underpinning?

 

This is important because the expert appears to be telling the court that they are two entirely different disciplines and that a builder who is competent to underpin might not be competent to pile.

 

If the contract for Project 1 was based on your structural engineer's report, did it specifically say that piling might be required?  Because if your engineer did not foresee that piling would be necessary, I don't see why your builder should have done.

 

I fear either that you might be trying to blame your builder for an additional expense that nobody (including you and your structural engineer) could have foreseen, or that you are trying to blame your builder for something your structural engineer ought to have alerted you to.

 

I asked you back in #385 if we could see Exhibit 2 from your WS which is the contract for Project 1.  I want to see what it says in respect of underpinning and/or piling.  If it only talks about underpinning I don't see how (on the basis of what you've told us) the builder can be responsible for your expenditure on piling. 

[simeon1964]

On 02/01/2023 at 18:17, Manxman in exile said:

That goes to the heart of a question I have asked you several times and which you continually evade answering.  What work did your builder actually agree to carry out in respect of Project 1?  Did it include piling or did it only specify underpinning?

 

Scan2023-01-04_080056.pdf

[Manxman in exile]

[Edit:  In this post I'm only addressing two issues:  First, the general point of what did the contract for Project 1 actually cover, and second, whether the Project 1 contract specifically covered "piling" or just "underpinning".]

 

Perhaps I'm mistaken but:

 

1.  That doesn't appear to be a contract between you and your builder.  It seems to be a report to you from your structural engineer. 

 

It might be that the actual contract between you and your builder refers to this report as outlining the work that needs to be done, but how are you going to persuade the court that this report from your engineer forms the basis of what your builder agreed to do?  What written evidence do you have as to what you agreed with the builder? 

 

Have you got his signature on a piece of paper saying that he agrees to carry out the rectification works detailed at sections 4.1, 4.2, 4.3 and 4.4 of the report from your structural engineer?  Have you got your builder's signature on anything at all?   Where is that part of the contract which agreed the price and what that price covered?

 

Where is the actual contract between you and your builder?

 

2.  I've only skimmed through that document but I can't see any reference anywhere to "piling". 

 

I can see mention of "underpinning" on page 1 of the 2 page covering letter, and at section 4.1 of the report itself, but I can't see any mention of "piling".

 

What concerns me is that you bought a house in a state of disrepair and your structural engineer advised (inter alia) that the bay needed underpinning.   You got a quote from your builder to do the underpinning and other work.  You accepted that quote.  As the work was ongoing it became evident that underpinning would not be enough and that the bay needed piling.  You appear to be trying to blame your builder for the fact that they hadn't recognised the need for piling at an earlier stage and that they should be responsible for the cost of the piling, but that argument makes no sense.

 

Your structural engineer advised underpinning, not piling.  Presumably you obtained quotes on that basis - ie underpinning, not piling.  Equally presumably your builder provided a quote based on underpinning, not piling.  You accepted a quote based on underpinning not piling.

 

I don't see how you can reasonably try to make your builder liable for the piling if he was asked to quote for underpinning, not piling.  If your property actually required piling and not underpinning, the cost of that is a cost you need to bear because it's your property.  Your builder didn't cause the need for and has no responsibility for it.  You simply bought a property that needed piling

 

Didn't your structural engineer alert you to the possibility that underpinning might not be sufficient and that piling might be required at an additional cost to you over and above the cost of the underpinning?

 

(NB  -  are you intending using your structural engineer as a witness at all?)

 

Edited January 4, 2023 by Manxman in exile

[FTMDave]

Spot on MiE.

 

I've read the lot and there is no mention of piling anywhere.

 

There were ten months to sort all this out before the Witness Statement was filed.

[Manxman in exile]

@FTMDave  -  what concerns me about simeon's position here is that I'm beginning to think he really doesn't understand the sort of principles that lie behind any sort of claim for damages or compensation.

 

For example, with the piling I don't see how the builder can be responsible for funding work he was never contracted to do.  (Assuming he was never contracted to undertake any piling - again it would be nice to finally see the actual contract for Project 1 so we could know what was agreed... )

 

The best I can see simeon being able to do in respect of the piling is to recover from the builder any monies paid  for underpinning that presumably the builder didn't complete.  But that would be conditional on simeon having paid upfront for the underpinning and that work not being carried out by the builder.  I can easliy imagine that the builder might have at least partly completed the underpinning works before the structural engineer recognised the need for piling.  Either way simeon hasn't clearly explained any of this.

 

I'm also very concerned by the discrepancy between the expert's report and simeon's scehdule of loss (which is another one I'm not sure if we've seen or not?).

 

I can't help but worry that some of the quotes and estimates that simeon has obtained might relate to general property improvements and not to damage caused by the builder, or to work not done by the builder, or to work done badly by builder.

 

I've just re-read a couple of documents from the builder that simeon uploaded.  (I think one is the builder's defence and I've no idea what the second is or was).  And I know you could say "Well the builder would say that in his defence, wouldn't he?" but the longer this thread goes on the less sure I am of simeon's position.  I think they're worth re-reading.

Part 20 Defendant reply.pdf claimants WS (part only) (4).pdf

[simeon1964]

The expert in his report clarify Underpinning and piling are totally different disciplines. He did not say that piling is underpinning as well as mass concrete which he described as underpinning in his own right. He never mentioned "Mass concreting" .This is confusing the platform. There are several methods and ways of underpinning to which pilling and mass concrete are one of them. Why don't you check google or dictionary.

Piling cannot be mentioned in the structural engineer report because he did not know which method to use until excavation to certain level the drawing that the builder had in hand before the project.

The contract signed between the builder and myself on commencement of the work was to work on the instruction of the structural engineer. The structural engineer then instructed piling method of underpinning.

 

 

[Manxman in exile]

7 hours ago, simeon1964 said:

...There are several methods and ways of underpinning to which pilling and mass concrete are one of them. Why don't you check google or dictionary...

 

I'm not going to check anything because I don't need to be persuaded of anything.

 

When the builder explains to the court that he was only contracted to carry out underpinning and not piling, and the court asks for your response to that, what will you tell the court?  That the judge should check google or a dictionary?

 

7 hours ago, simeon1964 said:

... The contract signed between the builder and myself on commencement of the work was to work on the instruction of the structural engineer. The structural engineer then instructed piling method of underpinning...

 

Can we please see this contract signed by the builder?  You refer to it yourself in para 5 of your witness statement as Exhibit 2.

 

I'm quite happy to accept that you might be correct.  But if you are correct that would mean that your builder had agreed to an open-ended committment in respect of Project 1 to follow your engineer's instructions, come what may, for a fixed price of just £4300.  And to be perfectly honest, I find that a bit difficult to believe.  And I think a court might find it difficult to believe too.

 

[simeon1964]

To the Court:

These are my replies to the 30 numbered questions raised using the same enumeration.

 

Item 1 Extra pay for underpinning front bay

The Defendant refers Mr. XP to the invoice attached to his witness statement at exhibit 3 for the piling work that was required, in the sum of £3,000. 

In light of this document, would Mr XP  revise the allowance he has made in this section of his report?

 

I have already explained that under pinning and piling are two different disciplines. Unfortunately there is no indication as to the nature of the proposed under pinning and its depth but whatever was proposed was clearly not satisfactory to the building inspector. As a result a piling method was undertaken by specialist at a cost of £3000. This would have been payable by the defendant who I believe has paid it directly to the specialist. I have made a deduction therefore from the contractors estimate for what I believe is a fair cost of the under pinning not undertaken. Item 2 Restraint strapping The Defendant refers Mr. XP to the exhibit attached to his witness statement at exhibit 4A which quotes this work in the sum of £190. In light of this document, would Mr. XP revise the allowance he has made in this section of his report? No – my position I believe is fair having regard to the information provided and what I have seen at the site inspection. Item 3 Rainwater goods The Defendant refers MrXP to the exhibit attached to his witness statement at exhibit 14 which quotes this work in the sum of £190. In light of this document, would Mr. XP revise the allowance he has made in this section of his report? No – my position I believe is fair having regard to the information provided and what I have seen at the site inspection. Item 4 Flitch beam not made good after finished job The matter referred to is the making good after the installation of the flitch beam. It is included in the quote in exhibit 4a to the Defendant's witness statement. In light of this document, would Mr. XP revise the allowance he has made in this section of his report? No – my position I believe is fair having regard to the information provided and what I have seen at the site inspection. Item 7 Remedial works following chimney works The Defendant refers Mr. XP  to the exhibit attached to his witness statement at exhibits 12 and 13, which is an invoice for remedial works carried out to rectify this matter. In light of this document, would Mr. XP revise the allowance he has made in this section of his report? No – my position I believe is fair having regard to the information provided and what I have seen at the site inspection. Item 8 Removal of rubble from the property The Defendant refers Mr. XP to the exhibit attached to his witness statement at exhibit 14 which is an invoice for this work in the sum of £387.15. In light of this document, would Mr XP revise the allowance he has made in this section of his report? No – my position I believe is fair having regard to the information provided and what I have seen at the site inspection. Item 9 Damaged fascia during installation of bathroom vent The Defendant refers Mr. XP to item 30 of the schedule of loss attached to his witness statement which quotes this work, together with the work outlined at 10 in the report, in the sum of £1,200. In light of this document, would Mr. XP revise the allowance he has made in this section of his report? No – my position I believe is fair having regard to the information provided and what I have seen at the site inspection. Item 10 Extractor fan fitted not fit for purpose The Defendant refers Mr. XP to item 30 of the schedule of loss attached to his witness statement which quotes this work, together with the work outlined at 9 in the report, in the sum of £1,200. In light of this document, would Mr. XP revise the allowance he has made in this section of his report? No – my position I believe is fair having regard to the information provided and what I have seen at the site inspection. Item 11 Damaged wall while installing flitch bean to both kitchen and lobby The Defendant refers Mr. XP to item 17 of the schedule of loss attached to his witness statement which quotes this work, together with the work outlined at item 12 in the report, in the sum of £1,200. In light of this document, would Mr. XP revise the allowance he has made in this section of his report? No – my position I believe is fair having regard to the information provided and what I have seen at the site inspection. Item 12 Damage to all electrical sockets, pendants rose The Defendant refers MrXP to item 17 of the schedule of loss attached to his witness statement which quotes this work, together with the work outlined at item 11 in the report, in the sum of £1,200. In light of this document, would Mr. XP revise the allowance he has made in this section of his report? No – my position I believe is fair having regard to the information provided and what I have seen at the site inspection. Item 13 Damage to all electrical and failed to reconnect The Defendant refers Mr. XP  to item 18 of the schedule of loss attached to his witness statement which quotes this work, together with other work, in the sum of £1,200. In light of this document, would Mr. XP revise the allowance he has made in this section of his report? No – my position I believe is fair having regard to the information provided and what I have seen at the site inspection. Item 18 Damage to existing wall with mortar, bad pointing while laying brick work Mr XP has taken this item to refer to the brickwork above the rear catnic lintol. It in fact refers to the brickwork of the front bay window. The Defendant refers Mr. XP  to exhibit 9 attached to his witness statement which quotes this work in the sum of £500. In light of this document, would Mr. XP revise the allowance he has made in this section of his report? At the site inspection I asked the defendant to identify the brickwork referred to in the documentation. He pointed out the brickwork above the rear patio door and to which I have referred. I am not aware of any defect to the brickwork of the front bay window. Item 19 Skirting boards removed and not replaced Mr. XP has concluded that the existing skirting boards that have been removed should have been refitted, though not replaced. He has recorded a nil allowance. Would he reconsider the cost of having the existing skirting boards replaced by a competent professional? Upon reflection I would allow £150 for the refitting of the pre-existing skirting boards. Item 21 Removal of debris – failed to remove debris, plus make good Mr XP has concluded at item 8 that allowance for the cost of removal of rubble should be made. The Defendant has provided a quote for this work at exhibit 9 in the sum of £150. In light of this document, would Mr. XP revise the allowance he has made in this section of his report? No – my position I believe is fair having regard to the information provided and what I have seen at the site inspection. Item 22 Mechanical extractor failed control switch Mr. XP was unable to ascertain as to what matter this referred to. It referred to the cooker hood electrical connection. The Defendant has provided a quote for this work at exhibit 9 in the sum of £50. In light of this document, would Mr. XP revise the allowance he has made in this section of his report? No – my position I believe is fair having regard to the information provided and what I have seen at the site inspection. Item 23 Windows retrofit trickle vent Mr. XP has made an allowance of £25 for this item. The Defendant has provided a quote for this work at exhibit 9, together with the work set out in Item 24, in the sum of £1,600. In light of this document, would Mr. XP revise the allowance he has made in this section of his report? No – my position I believe is fair having regard to the information provided and what I have seen at the site inspection. Item 24 Double glazing job left uncompleted Mr. XP has made an allowance of £65 for this item. The Defendant has provided a quote for this work at exhibit 9, together with the work set out in Item 23, in the sum of £1,600. In light of this document, would Mr. XP revise the allowance he has made in this section of his report? No – my position I believe is fair having regard to the information provided and what I have seen at the site inspection. Item 25 Plastering rooms 1.2.3 and reception Mr. XP has made an allowance of £60 for this item. The Defendant has provided a quote for this work at exhibit 4A, in the sum of £1,200. In light of this document, would Mr. XP revise the allowance he has made in this section of his report? No – my position I believe is fair having regard to the information provided and what I have seen at the site inspection. Item 27 Uncompleted foreground bay window MrXP has made an allowance of £100 for this item. The Defendant has provided a quote for this work at exhibit 8, in the sum of £300. In light of this document, would Mr. XP revise the allowance he has made in this section of his report? This refers to the concrete surface adjacent to the front of the bay. I have allowed £100 for this item. Upon reflection I would allow £150 to break up and relay the concrete so as to fall away from the house. Item 28 Unauthorised removal steel beam x 3 The Defendant claims that he expressly asked the Claimant to leave the steel at the property. This is an evidential dispute between the parties to be resolved at court. In the circumstances, would Mr. XP  provide an estimate of the value of the steel that was removed. The value of steel depends on the size of the beam, its weight, the condition of the steel and the likely weigh in price at the time of proposal. I have not been provided with enough information to determine what such a value was but would consider the position if further details can be provided. Item 30 Airbrick. Remove debris. The Defendant has provided a quote for this work at exhibit 9, in the sum of £50. In light of this document, would Mr. XP revise the allowance he has made in this section of his report? No – my position I believe is fair having regard to the information provided and what I have seen at the site inspection. Statement of Truth I hereby declare:- i) I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer. ii) I understand my duty to the court, and have complied with that duty. iii) I am aware of the requirements of Part 35, the practice direction and the Protocol for instruction of Experts to give Evidence in Civil Claims. iv) I confirm that insofar as the facts stated in my report are within my own knowledge I have made clear which they are and I believe them to be true, and that the opinions I have expressed represent my true and complete professional opinion. v) I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

 

Late response from expert and waiting to hear if hearing will shift on Wednesday.

Also discovered that the W/S of the claimant on para,8 admits amount of total contract to £6,880.00 and the total he received was £4,366.60 which I agreed.

Leaving £2,351.40 if work was completed.

He has brought a claim of £2,886.66 against me. Can I ask the court to dismiss his claim on wrongful filing of application? I once raised this at claimant's  stting-aside application and in my W/S. if so how do i make this effective?

[honeybee13]

Maybe you could repost your long message with some paragraphs in it please? It's doing my eyes in and other people who are trying to help may feel the same.

 

HB