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Claim against a house builder

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  • Claim against a house builder

    Hi,

    Thank you for taking the time to look at my post, and apologies if it is in the wrong place. I also did search the forums to see if similar situations/questions had been asked previously, but didn’t find any similar threads. Therefore, I was hoping this may become a useful topic as I’m sure many experience similar problems.

    The background is I purchased a new build property from a regional (West Yorkshire) “luxury” house builder in August 2017, and even on the home tour it was apparent there were a large number of snags and defects. I consequently paid a professional snagging company (at a cost of £440) to inspect my property and within a week of legal completion they’d identified c.250 snags. Over the next 18 months more defects were identified - some as the original issues were fixed, and others through the passage of time (e.g. following the first winter it was identified that two walls had not been insulated). These issues have only been fixed because the warranty company (LABC) has pushed the builder into doing them; and I suspect has cost the builder a lot of the profit they made on the sale.

    However, certain issues, principally over the roof and brickwork, the developer has repeatedly confirmed were not issues and they’d had their best roofer and bricklayer look at my house, and as they have stated in multiple emails “there are no issues” and as I am a layman, I don’t know what I’m talking about (not totally unfair). I therefore engaged a RICS surveyor and structural engineer in July 2019 to inspect my property (at a cost of £1,350), and he confirmed in a professional report that there are a number of issues with the roof and brickwork, as well as a number of other instances of poor workmanship to the property’s construction (and certainly not representative of a “luxury” developer). The cost of the remedial works was estimated between £7,500 to £12,500. I shared the report with the builder and warranty company, with the latter confirming the issues meet the definition of a defect and fall below the requirements set out in their technical manual.

    The developer subsequently did nothing, so I wrote them a “Final Letter Before Claim” in early August 2019 asking them to rectify these issues within the report and my open claims with the warranty company before the end of the 2 year warranty period, or else I would start court proceedings. The developer did not respond to final letter, and so I went and obtained quotes for the remedial works, which took longer than expected, but came out at c. £6,500. I therefore added the costs of the professional reports (c.£2,000) and raised a Money Claim Online at the start of October for breach of contract for c. £8,500 meaning I had to pay a fee of £410 and took my total claim to c.£9,000. I sent detailed particulars of the claim separately, which listed the defects, when they had first been reported to the builder, where they were listed in the RICS report and which claim number with the warranty company they were contained within.

    The developer passed the claim to their legal firm (a very large firm), who filed an Acknowledgement of Service giving them an extra 14 days stating they intended to defend the case.

    The legal firm then wrote to me asking for an extension until the end of November as they needed to engage their own expert to inspect my property (and if I didn’t agree they’d apply to the court for it, and I may be liable for costs). I said this was fine, and my research and understanding from the CPR is that going to court should be the last resort. I did ask the legal firm to confirm the time and who be attending, and what benefit this will bring (i.e. their experts credentials) since their client already has the information to defend this case - they have not yet responded to those questions, but the partner did email to say he was “keen to speak” but has not yet called despite agreeing to call by the end of last week.

    Then on Friday, the legal firm emailed asking for another extension until early December which is the maximum extension (28 days) that can be agreed between the parties for the legal firm to file a defence, as they are concerned they will not have enough time to file a defence between the receipt of their experts report and the deadline they’d originally asked for - despite the legal firm proposing the experts visit to my property in the original extension request. Their email contained much stronger wording that if I did not agree to this extension they would obtain a costs order against me for the going to court for the extra 5 days they now need. I agreed to the extension since it is following what is set out in the CPR, and just ignored the comments on the costs.

    I think I have followed the required necessary / appropriate steps, but given I am a Litigant in Person, I have to acknowledge the legal firm know the law much better than I do, and I think they are trying to setup traps (I guess their attempts to spook me are working?) since I believe I have a relatively strong case.

    My questions therefore are:

    1. Are there any pitfalls I am walking into by allowing their expert to visit my property before their defence needs to be filed?

    (My original thinking was no, and I don’t want to appear obstructive to a judge, and if they get a reputable firm then it should only highlight the same issues (e.g. collapsed / broken tiles, missing flashing / pointing), but given experts are usually appointed later it seems a little odd to be using one now?)

    2. As we have not yet had the Directions Questionnaire, I appreciate the claim has not yet being allocated to a track. I understand the court will allocate the claim mainly based on the monetary value, unless it is complex (I don’t believe it is), and I would tick “Yes” to saying it is appropriate for small claims when I get the questionnaire, however, could the legal firm try and do something clever here e.g. by ticking “No” pushing it into a fast track process?

    3. Equally, following on from (2) is there anything I can do, to strengthen the case of the claim being allocated to the Small Claims Track?

    4. Would there be any benefit to seeing if I could get the case reported in the papers - the Yorkshire Post and Guardian have both covered the developer already this year, so another story is presumably not going to be helpful; or tactically is it better to keep this up my sleeve?

    5. At the end of the day, I do need to get these issues fixed, so I am best just pulling the trigger on the tradesmen I have got quotes from (the roof needs to be first and sadly this is the most expensive job at £3,000), or will I be open to challenge that the developer could naturally have done these works for less?

    Thank you, and if you need anything else to answer the questions please let me know.

    Also, sorry this was a long post...this is what happens when a risk averse person does something with risk !
    Tags: None

  • #2
    Hi and in general do not communicate with the other side by telephone, what is written down can't lie.

    Originally posted by NBluth View Post

    1. Are there any pitfalls I am walking into by allowing their expert to visit my property before their defence needs to be filed?

    (My original thinking was no, and I don’t want to appear obstructive to a judge, and if they get a reputable firm then it should only highlight the same issues (e.g. collapsed / broken tiles, missing flashing / pointing), but given experts are usually appointed later it seems a little odd to be using one now?)
    No, it seems wasteful to have another survey done and I suppose they are hoping it will totally contradict your report. If it doesn't it might lead to the claimant being advised to settle by their solicitor. An independent joint expert may be appointed later.

    Originally posted by NBluth View Post
    2. As we have not yet had the Directions Questionnaire, I appreciate the claim has not yet being allocated to a track. I understand the court will allocate the claim mainly based on the monetary value, unless it is complex (I don’t believe it is), and I would tick “Yes” to saying it is appropriate for small claims when I get the questionnaire, however, could the legal firm try and do something clever here e.g. by ticking “No” pushing it into a fast track process?
    They could ask for it in a different track, but it would open them up costs wise and so they are unlikely to do that.

    Originally posted by NBluth View Post
    3. Equally, following on from (2) is there anything I can do, to strengthen the case of the claim being allocated to the Small Claims Track?
    Not at this stage, if the parties want the claim in different tracks I would expect their to be a case management hearing for the court to find out why?

    Originally posted by NBluth View Post
    4. Would there be any benefit to seeing if I could get the case reported in the papers - the Yorkshire Post and Guardian have both covered the developer already this year, so another story is presumably not going to be helpful; or tactically is it better to keep this up my sleeve?
    If you make them aware of this they may seek an order preventing it until after the claim has been concluded, but on the other hand the offer of them settling and as part of that you agreeing to a NDA might be appealing to them. It really is a case of how much you want to warn other people as opposed to how much you want to leverage them.

    Originally posted by NBluth View Post
    5. At the end of the day, I do need to get these issues fixed, so I am best just pulling the trigger on the tradesmen I have got quotes from (the roof needs to be first and sadly this is the most expensive job at £3,000), or will I be open to challenge that the developer could naturally have done these works for less?
    It's better not to have them done at this stage, as you say they may say they could have made good on the work and you denied them that opportunity. However, you are well within your rights to argue that 'their best roofer and bricklayer' couldn't spot the issues and as a result you would have no faith in their abilities to put the works right, so if there's exposure to the elements that could cause further damage you are well within your rights to pull the trigger on the works and mitigate your losses in doing do.



    COMPLETING AN N180 DIRECTIONS QUESTIONNAIRE (SMALL CLAIMS TRACK) GUIDE

    My posts here are based on my experience of a variety of life events. I have no formal legal training & if in doubt take professional legal advice or contact CAB. If you follow anything I write here you do so at your own risk & I accept no liability for any loss, costs or other outcomes.

    Private messages are disabled as help is only offered publicly. I do not come on here in the evening, at weekends or on public holidays.

    Comment


    • #3
      Thank you JaguarsUK. You made me feel a lot better as I think I was also getting nervous by the fact the developer had assigned a large legal firm.

      I had hoped to reply before now, however, the developer’s solicitor has still not responded or called me as they suggested. (I agree them saying anything in writing would be best).

      I had two follow up questions, if I may:

      1. The solicitor has still not confirmed the Expert or what time they will be attending my property (All they have confirmed is someone will come next Wednesday in the afternoon) Do I have a right to know this information or am I being overly sensitive? (I’m wondering if they’re simply going to send a Construction Manager for the developer, rather than an Expert, who I would interpret to be someone such as a surveyor).

      2. The solicitor has still not filed a further letter with the Court from the original extension of the end of November to the revised / final date of early December. If they don’t do this - can I apply for a “Judgement in Default” once they have gone past the originally agreed extension?

      Comment


      • #4
        Originally posted by NBluth View Post
        Thank you JaguarsUK. You made me feel a lot better as I think I was also getting nervous by the fact the developer had assigned a large legal firm.

        I had hoped to reply before now, however, the developer’s solicitor has still not responded or called me as they suggested. (I agree them saying anything in writing would be best).

        I had two follow up questions, if I may:

        1. The solicitor has still not confirmed the Expert or what time they will be attending my property (All they have confirmed is someone will come next Wednesday in the afternoon) Do I have a right to know this information or am I being overly sensitive? (I’m wondering if they’re simply going to send a Construction Manager for the developer, rather than an Expert, who I would interpret to be someone such as a surveyor).
        I would ask the name and job title of the person attending, simply say you are not in the habit of inviting strangers into your home and would like to know who to expect.

        Originally posted by NBluth View Post
        2. The solicitor has still not filed a further letter with the Court from the original extension of the end of November to the revised / final date of early December. If they don’t do this - can I apply for a “Judgement in Default” once they have gone past the originally agreed extension?
        Yes, it is incumbent upon them to request the extension and if they do not you are well within your right to seek summary judgement. Be careful though, you know you have agreed an extension and therefore they could apply to set a default judgement aside with a request for costs. Tread carefully.
        COMPLETING AN N180 DIRECTIONS QUESTIONNAIRE (SMALL CLAIMS TRACK) GUIDE

        My posts here are based on my experience of a variety of life events. I have no formal legal training & if in doubt take professional legal advice or contact CAB. If you follow anything I write here you do so at your own risk & I accept no liability for any loss, costs or other outcomes.

        Private messages are disabled as help is only offered publicly. I do not come on here in the evening, at weekends or on public holidays.

        Comment


        • #5
          Thanks for that - I will take your advice on board.

          The developers solicitors have now confirmed the details of the individual attending next week. He is a chartered surveyor and is also used as an expert witness from my research on Google; so he appears to be suitably qualified.

          I’ll let you know what happens.

          Comment


          • #6
            So the developers solicitor called twice - once to confirm details on access and then a second time asking about details in the report.

            Apparently the developer has not shared all the correspondence with the solicitor, and they are not clear what they are defending! The solicitor asked me to share the correspondence, I said “no as I’m not doing your job did you, and your client should have shared that information”. Apparently I am not being “grown up” so he hung up, and flagged their expert might not find everything - not sure how that is my problem.

            I get the sense they are not well prepared, but I don’t see how a large law firm can be operating on such basis.

            Comment


            • #7
              Hi,

              I have received the attached Defence from the Developer's solicitor (which is hopefully redacted of all sensitive information), and have now received a 'Proposed Notice of Allocation to the Small Track' Questionnaire which must be returned by 16 December.

              Looking at the Defence, it appears the developer hasn't shared the list of issues I shared with the developer before filing the claim. They have also raised some challenges with the details of my claim (e.g. I did not send the contract but referred to it).

              I therefore had the following questions:

              i) Is this a strong defence? (They seem to have ignored my detailed list and the developer nor their solicitor has not shared their experts report which leads me to think it is all not good news for them)

              ii) Should I amend by 'Particulars of Claim' to be in the standard format, and to set out all the legal background to the case (similar to my proposed reply to defence below) - it appears this will cost £255 (or £100 if they agree to me amending them), however, that may not be worth it?

              iii) I know I am not required to file a 'Reply to Defence', however, most of the details in the Defence are factually incorrect - see my draft below - is this acceptable?
              Attached Files

              Comment


              • #8
                NBLUTH
                Claimant

                AND

                DEVELOPER
                Defendant

                Â*
                REPLY TO DEFENCE
                Â*
                1. BACKGROUNDÂ*
                  1. The Claimant received the defence from the Defendant’s solicitor on 28 November 2019 and refers to the Claim Form issued on 3 October 2019. The Claim Form explicitly states the agreement that forms the basis of their contract is an agreement dated 15 May 2017 (which the Defendant confirms in their Defence). Whilst this and the associated documents (since the agreement incorporates the ‘Standard Conditions of Sale (Fifth Edition)’, ‘Promotional Material’ and the ‘Welcome Letter’) were not appended this is because they are bulky and will therefore be made available at the hearing in line with CPR practice direction 16 paragraph 7.Â*
                  2. In addition to the Claim Form that was issued on 3 October 2019, the Claimant furnished Detailed Particulars with a covering letter dated 4 October 2019 (with the date of service taken to be 8 October 2019). This was sent via recorded delivery (under tracking reference [XXXXX]) to the Defendant’s registered office. This confirmed in writing the 11 defects and issues, as well as associated costs that were being sought as the remedy. A Certificate of Service was delivered to the Court for the documents served on the Defendant on 8 October 2019.Â*
                  3. The Defendant has not referred to these Detailed Particulars in their defence, and under Paragraph 1.3 of the Deference denies these are “full particulars” and are “lacking detail” as required under the CPR.Â* Consequently, the Defendant in their Defence has failed to comply with the requirements set out in CPR Part 16.5. Furthermore, if the Detailed Particulars and supporting evidence were lacking in sufficient detail, then the Defendant would not have instructed their own expert (MrÂ*XXXX of XXXXXX) to assess the claim.Â*
                  4. The Claimant joins issue with the Defence except in so far as it consists of any admissions below. Â*
                    Â*
                2. REPLY TO DEFENCE Â*
                  1. In respect of Paragraph 3.1 in the defence, the Claimant notes that the Defendant has breached paragraph 9 of the Sale Agreement between the Claimant and Defendant, which includes the requirement for the Property to be built in accordance with the LABC (which is explicitly stated in the Claim Form). The Defendant also provides a 2 defect year warranty following legal completion (which occurred on 18 August 2017) and requires them as the developer to rectify all defects reported to them during this period. The Defendant’s ‘Welcome Letter’ states “we aim to attend to any non-emergency items as soon as possible and always endeavour to complete within 28 days”.. Â*
                  2. The Sale Agreement also falls under the scope of the Consumer Rights Act 2015 (“the Act”), which imposes certain duties on the Defendant as a developer. One of the key requirements under section 49 of the Act is that the trader must complete their duties “with reasonable skill and care”. Â*
                  3. In respect of Paragraph 3.2 in the defence, the majority of the defects subject to the Detailed Particulars have been confirmed in writing by the LABC as genuine defects, and therefore do not meet the definition of ‘minor snagging’ as alleged by the Defendant. Furthermore, the defects were reported to the Claimant on various dates between August 2017 and July 2019, and as the Claim Form was not issued until 3 October 2019, this demonstrates that the Defendant has had ample opportunity to rectify the defects and issues subject to this claim. Furthermore, the Defendant’s Construction Manager and Head of Customer Services failed to attend an agreed meeting with the Claimant at the Property on 1 August 2019 to discuss the defects and issues, and despite the Claimant attempting to contact the individuals via telephone, these calls were never returned. Â*
                  4. In respect of Paragraph 3.3 in the defence, the Claimant has never denied the Defendant access to carry out any remedial works. The Claimant has allowed the Defendant access to the Property on over [30] separate occasions to rectify a number of Defects (including breaches of Building Regulations and the LABC Technical Manual) and instances of minor snagging (which are not subject to this claim). Often this was at extremely short notice, and in several instances the Defendant failed to attend as previously agreed.Â*
                  5. The Claimant has also been cooperative with the Defendant’s solicitor and approved an extension for filing a defence, and was immediately agreeable to allowing access for the Defendant’s own expert to inspect the Property. The Claimant has attempted to resolve the case with the Defendant’s solicitor during this period, however, the Defendant’s solicitor did not respond to multiple requests to try and resolve the situation. Â*Â*Â*
                  6. In respect of Paragraph 3.4 in the defence, the Claimant denies that the Defendant “stands ready to carry out, and bear the cost of, any necessary remedial works to rectify genuine defects” as the Defendant has previously confirmed in writing on various dates between January 2019 and July 2019 that the Defendant and/or their contractors, had inspected certain defects notified by the Claimant and denied they existed. The key issues denied by the Defendant are the remedial works required to the ‘Main roof and garage roof’ and ‘Poor workmanship in the pointing and brickwork’, which are the first two defects listed in the Detailed Particulars dated 4 October 2019. Furthermore, the Claimant followed the ‘Pre-Action Protocols’ set out in the CPR and the Defendant failed to respond. The Claimant’s ‘Pre-Action Protocols’ letter was posted in August 2019 via recorded delivery (under tracking reference [XXXXXXX]).Â*
                  7. In respect of Paragraph 3.6 in the defence, the Claimant is seeking Defects that have been confirmed by the LABC as being breaches of the Technical Manual, as well as other issues that have not been completed with ‘reasonable skill and care’ under the Act. Therefore the Defendant’s response is denied. Â*
                  8. In respect of Paragraph 3.7 in the defence, this is denied. All issues were reported to the Defendant on various dates between August 2017 and July 2019, and the defects that breach the requirements of the warranty provider, have resulted in two further LABC claims (as well as a previous claim raised in October 2017). The latter two LABC claims are Claim No:Â*XXXXX and Claim No: XXXXX, and were stated in the Detailed Particulars. These two LABC claims against the Defendant were raised on 18 February 2019 and 1 August 2019 respectively, whereas the Claim Form was not issued until 3 October 2019 (following the ‘Pre-Action Protocols’ noted under paragraph 2.6). Furthermore, the Defendant has confirmed in writing that they aim to rectify all defects and minor snags within 30 days. As such, the Defendant has had adequate opportunity to investigate and rectify the defects. Â*
                  9. In respect of Paragraph 3.8 in the defence, the Building and Structural Integrity Report was commissioned following written confirmation from the LABC in April 2019, who stated that as the Defendant alleged that certain defects had either been fixed or were non-existent that they would only consider accepting the validity of them under the warranty if they were provided with independent evidence, such as from a chartered surveyor. Â*
                  10. Before commencing with the time and expense of an independent professional survey, the Claimant contacted the Defendant requesting that they reconsider the reported defects that had already been reported, and the Defendant confirmed in writing that the most significant defects over the ‘Main roof and garage roof’ and ‘Poor workmanship in the pointing and brickwork’ were not present (as noted in paragraph 2.6). Therefore, the Claimant should be able to recover the costs of the ‘Building and Structural Integrity Report’ since he has tried to mitigate his loss. Â*
                  11. Furthermore, the LABC confirmed that the Claimant’s Building and Structural Integrity Report was performed by a suitably qualified expert (a chartered surveyor) that they would not issue further Technical Manual Reports. As the LABC would have charged the Defendant for inspecting the issues and producing another Technical Manual Report, the net impact on the Defendant is minimal. Â*Â*
                  12. In respect of Paragraph 3.9 in the defence, this is denied and is explained by paragraph 2.9 and 2.11. Â*
                  13. In respect of Paragraph 3.10 in the defence, the Claimant acknowledges that the LABC issued a ‘Technical Manual Report’ in July 2018 (under LABC Claim No: XXXX), however, the defects subject to the Claim were not covered within that Report. As such, the Defendant’s statement is incorrect and is therefore denied.Â*
                  14. In respect of Paragraph 3.11 in the defence, this is denied as the Defendant has not provided the Claimant with a copy of the report issued by the Defendant’s expert. Furthermore, the Claimant has attempted to resolve the defects and issues with the Defendant as explained above, as well as the Defendant’s solicitor since issuing the Claim Form, however, the Defendant’s solicitor has not responded.Â*Â* Â*
                  15. In respect of Paragraph 3.12 in the defence, the Claimant notes that the defects have been estimated in the Building and Structural Integrity Report which was written by a chartered surveyor and provided to the Defendant in July 2019. The costs of the necessary remedial works have then been reassessed following the receipt of quotations by the Claimant from multiple tradesman. In addition, the Claimant has obtained quotations that come in below the cost range estimated in the Building and Structural Integrity Report, demonstrating that they are not exaggerated and the Claimant has tried to mitigate his loss. The Defendant has not provided any evidence over the ‘minor snagging issues’ that are allegedly accepted, or the estimated remedial costs.Â* Â*
                  16. In respect of Paragraph 3.13 in the defence, this is denied as the Claimant has tried on multiple occasions to seek resolution with the Defendant and their solicitor. The Claimant has not previously prevented the Defendant from carrying out any remedial works (as noted in paragraph 2.4). Â*
                  17. In respect of Paragraphs 4.1 and 4.2 in the defence, the Claimant will provide the evidence behind the loss at the appropriate stage of the claim. Â*
                  18. In respect of Paragraph 4.3, 4.4 and 4.5 in the defence, these are denied. The Defence provides no evidence over the estimated costs for the remedial works, and the issues being described by the Defendant as allegedly been ‘minor snagging issues’ is also denied. In respect of Woodlands Oak Ltd v Conwell [2011] EWCA Civ 254, one of the key issues from the case is that Mr and Mrs Conwell had acted unreasonably by correcting the defective works themselves and not providing Woodlands Oak Ltd with a reasonable opportunity to rectify the identified issues. The Claimant has tried to mitigate his loss and has repeatedly requested that Defendant to undertake the necessary remedial works, and has received confirmation from the Defendant that certain defects do not exist. As such, there has also been a “loss of faith” in the technical capabilities of the Defendant to undertake any remedial works. Â*
                  19. In respect of Paragraph 4.6 in the defence, this is denied for the reasons set out in paragraphs 2.9, 2.10 and 2.11. Â*
                3. CONCLUSIONÂ*
                  1. The Claimant has tried on multiple occasions to seek a resolution to the defects and other issues, which are a breach of contract, however, the Defendant has either denied the issues exist, or has failed to respond. Â*
                  2. The Claimant denies the reasons set out in the Deference for the reasons set out above.

                Dated: [XX December 2019]

                Statement of truth
                The Claimant believes that the facts stated in this Reply to Defence are true.
                Â*

                Comment


                • #9
                  Your reply is too verbose and a lot of what you are saying will be for you Witness Statement if it gets that far.

                  I assume they have a copy of the contract as usually two copies are signed, one for each party entering into it to keep?

                  You can't claim for inconvenience only your loss, if you can quantify time such as unpaid time off for appointments they didn't turn off you can claim that, but not just because they have messed you about.

                  Try this on for size (edited to add that the formatting hasn't transferred across):
                  1. Unless specificially stated references to paragraphs are to those numbered paragraphs in the Defence dated XX/XX/2019.
                  2. The Claimant and defendant entered into a contract with each party retaining a copy, the Claimant saw no reason to copy a large volume document he already knew the Defendant was in possession of and was trying to be cautious as to costs in the proceedings as well as environmental impact. In any event the Defendant’s solicitor made no request under CPR Part 31.14 which would have alerted the Claimant they required a further copy. Enclosed and marked ‘A’ and further copies will be available at the hearing in line with CPR 16 and Practice Direction 16 para 7.
                  3. Paragraph 1.3 is denied, the Claimant furnished Detailed Particulars with a covering letter dated 4 October 2019 via recorded delivery (under tracking reference [XXXXX]) to the Defendant’s registered office and a Certificate of Service was filed with the Court. Did you serve the court a copy of the detailed PoC?
                  4. Regards Paragraph 1.4 the Defendant have been in receipt of detailed particulars of claim, has failed to deal with allegations by the Claimant in it and pursuant to CPR 16.5(5) the claimant respectfully request the court adjudge that he be taken to admit those allegations.
                  Reply to Defence
                  1. Paragraph 3.1 is denied, he Defendant has breached paragraph 9 of the Sale Agreement, which includes the requirement for the Property to be built in accordance with the LABC and is explicitly stated in the Claim Form.
                  2. Paragraph 3.2 is denied, the Defendant provides a 2 year warranty following legal completion and it requires them as the developer to rectify all defects reported to them during this period, but they have failed to meet that obligation.
                  3. Paragraph 3.3 is denied, the majority of the defects subject to the Detailed Particulars have been confirmed in writing by the LABC as genuine defects and the Defendant has accessed to the Property on over 30 separate occasions to rectify some of Defects. The Defendant has continued to refuse or is unable to rectify them
                  4. Paragraph 3.4 is denied, the Defendant has had multiple opportunities to act and has failed to do so, up to and including a Letter Before Action of this claim.
                  5. The Claimant agrees with Paragraph 3.5 and refers the Defendant to paragraph 7 of this Reply to Defence.
                  6. Paragraph 3.6 is denied, the Claimant is seeking Defects that have been confirmed by the LABC and which he believes are contrary to the Consumer Rights Act 2015 s.49.
                  7. Paragraph 3.7 is denied, there were two LABC claims were issued on 18 February 2019 and 1 August 2019 respectively, the Claim Form issued on 3 October 2019 and we are to believe the Defendant received neither until 3 October 2019?
                  8. Paragraph 3.8 is denied, the Building and Structural Integrity Report was commissioned following written confirmation from the LABC in April 2019 because,
                    1. The Defendant alleged that certain defects had either been fixed or were non-existent.
                    2. The LABC stated they would only consider accepting the validity of the claims under the warranty if they were provided with independent evidence, such as from a chartered surveyor.
                    3. The Defendant’s denial to the LABC has caused the Claimant the additional loss of commissioning the report, which is claimed.
                  1. The Claimant would like to take this opportunity to point out that the communication by the Defendant with the LABC is at odds with their statement in Paragraph 3.7 and the LABC confirmed that the Claimant’s Building and Structural Integrity Report was performed by a suitably qualified expert.
                  2. Paragraph 3.9 is denied, the Claimant refers the Defendant to paragraphs 12 and 13 of this Reply to Defence.
                  3. In regards Paragraph 3.10 the Claimant refers to Paragraph 3.8 of this Reply to Defence.
                  4. Paragraph 3.11 is admitted, save for the Defendant only took this action upon the issue of this claim and has yet to avail the Claimant with a copy of the report.
                  5. Paragraph 3.12 is denied,
                    1. The defects have been estimated in the Building and Structural Integrity Report which was written by a chartered surveyor.
                    2. The costs of the necessary remedial works have then been assessed via quotations by multiple tradesman some of which are below the cost range estimated in the Building and Structural Integrity Report.
                    3. The Defendant has not provided any evidence of ‘minor snagging issues’ that are accepted by them or the estimated remedial costs.
                  6. A
                  7. Paragraph 3.13 is denied, the Claimant has tried on multiple occasions to seek resolution with the Defendant and their solicitor. The Claimant has not previously prevented the Defendant from carrying out any remedial works.
                  8. Paragraph 4.1 and 4.2 are admitted, the Claimant intends to provide disclosure at the appropriate time as ordered by the court, the Defendant’s solicitor made no request under CPR Part 31.14 for any additional documents they required and not request was received pursuant to CPR 18 to seek any clarifications. Enclosed and marked accordingly is a schedule of loss. In the format of a pleading create a schedule of lost listing the individual defect, its cost to rectify and then add a column for them to respond. The court will probably order this if you don’t at a case management hearing, so better to have it now. If you need to meet the deadline to file this, simply change the wording from ‘Enclosed and marked accordingly’ to ‘The Claimant will file and serve within 14 days of the date of the Reply to Defence’
                  9. Paragraph 4.3 is admitted.
                  10. Paragraph 4.4 is denied, the Claimant has lost faith in the Defendant’s ability to rectify the issues because:
                    1. Pursuant to the Consumer Rights Act 2015 s.49 the work the parties entered into contract to complete should be undertaken ‘with reasonable skill and care,’ which it has not.
                    2. Unlike in the case of Woodlands Oak Ltd v Conwell [2011] EWCA Civ 254 reasonable opportunity has been provided to them to rectify the identified issues and have not.
                    3. The first point highlighted in Paragraph 13 of this Reply to Defence mean there is a lack of trust in the Defendant on the part of the Claimant.
                  11. Paragraph 4.6 is denied, the Claimant refers to Paragraph 12 of this Reply to Defence.
                  12. Paragraph 5.1 is denied, resolution to the defects and other issues, which are a breach of contract, however, the Defendant has either denied the issues exist, or has failed to respond.
                  Concludion
                  1. It is for the reasons set out in the Claim Form, Detailed Particulars of Claim and this Reply to Defence that the Claimant claims the sum of £X from the Defendant for breach of contract and the Consumer Rights Act 2015 s.49.
                  Last edited by jaguarsuk; 2nd December 2019, 17:16:PM.
                  COMPLETING AN N180 DIRECTIONS QUESTIONNAIRE (SMALL CLAIMS TRACK) GUIDE

                  My posts here are based on my experience of a variety of life events. I have no formal legal training & if in doubt take professional legal advice or contact CAB. If you follow anything I write here you do so at your own risk & I accept no liability for any loss, costs or other outcomes.

                  Private messages are disabled as help is only offered publicly. I do not come on here in the evening, at weekends or on public holidays.

                  Comment


                  • #10
                    Wow - thank you for taking the time to amend my 'Reply to Defence' - it reads so much better and now looks like the attached. Thank you and it was a fair point about my response being verbose!

                    In respect of your questions:

                    Originally posted by jaguarsuk View Post
                    I assume they have a copy of the contract as usually two copies are signed, one for each party entering into it to keep?
                    I have dug out my copy of the contract - it has every page including the signature by the Defendant, although has not been signed by us. Do I need to dig out theÂ*original from my solicitor, or will appending this version be acceptable (it could just look like I have not included the signature page from us)?


                    Originally posted by jaguarsuk View Post
                    You can't claim for inconvenience only your loss, if you can quantify time such as unpaid time off for appointments they didn't turn off you can claim that, but not just because they have messed you about.
                    Understood, thanks. See page 4 of the attached - is this sufficiently clear?


                    Originally posted by jaguarsuk View Post
                    Did you serve the court a copy of the detailed PoC?
                    No I did not, as it told me somewhere I did not need to do that. I did however, send them via recorded delivery.


                    Originally posted by jaguarsuk View Post
                    In the format of a pleading create a schedule of lost listing the individual defect, its cost to rectify and then add a column for them to respond. The court will probably order this if you don’t at a case management hearing, so better to have it now. If you need to meet the deadline to file this, simply change the wording from ‘Enclosed and marked accordingly’ to ‘The Claimant will file and serve within 14 days of the date of the Reply to Defence’
                    See page 4 of the attached - is this what you meant? (I need to file this by 16 December so have a little time)
                    Attached Files

                    Comment


                    • #11
                      Delete the red in the actual document, those were just notes to draw your attention.

                      Just photocopy the contract you have and the Schedule of Loss twice, then send them with one copy of the Reply to Defence to the court and the other to the Claimant. Also send a copy of the recorded signature to prove service of the Detailed Particulars of claim, you should have filed those with the court as well and so send a copy of them for the court.

                      Page 4 is good, but in court you are going o be asked how the £650 for inconvenience is calculated, so make sure you have an answer for it.

                      Once this is served you'll have the chance to mediate through the court, but there might also be an opportunity to agree settlement outside of the 1 hour mediation if you're prepared to give them a go at fixing the issues?
                      COMPLETING AN N180 DIRECTIONS QUESTIONNAIRE (SMALL CLAIMS TRACK) GUIDE

                      My posts here are based on my experience of a variety of life events. I have no formal legal training & if in doubt take professional legal advice or contact CAB. If you follow anything I write here you do so at your own risk & I accept no liability for any loss, costs or other outcomes.

                      Private messages are disabled as help is only offered publicly. I do not come on here in the evening, at weekends or on public holidays.

                      Comment


                      • #12
                        Thank you JaguarsUK.

                        Originally posted by jaguarsuk View Post
                        Just photocopy the contract you have and the Schedule of Loss twice, then send them with one copy of the Reply to Defence to the court and the other to the Claimant. Also send a copy of the recorded signature to prove service of the Detailed Particulars of claim, you should have filed those with the court as well and so send a copy of them for the court.
                        Thanks - I will do that. I have also emailed the PDF of the Detailed Particulars to the Court. I have gone back over my preparation notes and the HM Courts & Tribunal MCOL User Guide and it explicitly states not to send it at that time (however, I can see the certificate of service says to include it). What are the implications of this?

                        Originally posted by jaguarsuk View Post
                        Once this is served you'll have the chance to mediate through the court, but there might also be an opportunity to agree settlement outside of the 1 hour mediation if you're prepared to give them a go at fixing the issues?
                        If that is offered, I believe the developer will "attempt" to fix the issues but will fail to do so with any competency and will drag it out for months. It would also mean getting another report to confirm what has, and hasn't been done.Â*As such, I don't think I am prepared to accept this option (is that unreasonable?), however, I am prepared to settle as the work needs to get done, and I would like to move on with life. I can see why people definitely try and avoid this!

                        Sorry another question, if I may, on the Questionnaire - have I completed boxes 4.1 and 4.2 correctly? Particularly on 4.2, as it is already contained in my 'Schedule of Loss', so the cost has already been incurred? AlsoÂ*do I need my Expert to prepare another report as the Defence states it is not compliant with CPR part 35?
                        Attached Files
                        Last edited by NBluth; 3rd December 2019, 22:21:PM.

                        Comment


                        • #13
                          Originally posted by NBluth View Post
                          Thank you JaguarsUK.

                          Thanks - I will do that. I have also emailed the PDF of the Detailed Particulars to the Court. I have gone back over my preparation notes and the HM Courts & Tribunal MCOL User Guide and it explicitly states not to send it at that time (however, I can see the certificate of service says to include it). What are the implications of this?


                          You'll be fine, if asked in court this is your answer which is perfectly reasonable, essentially you didn't notice you had to send it with the Certificate of Service as soon as you did you filed a copy. It's not gone before a judge yet at all, so I wouldn't think it'll matter.


                          Originally posted by NBluth View Post
                          If that is offered, I believe the developer will "attempt" to fix the issues but will fail to do so with any competency and will drag it out for months. It would also mean getting another report to confirm what has, and hasn't been done.Â*As such, I don't think I am prepared to accept this option (is that unreasonable?), however, I am prepared to settle as the work needs to get done, and I would like to move on with life. I can see why people definitely try and avoid this!
                          No, you don't have to let them attempt to rectify the work, hence why I included you having no faith in their ability to do it in the reply.

                          Originally posted by NBluth View Post
                          Sorry another question, if I may, on the Questionnaire - have I completed boxes 4.1 and 4.2 correctly? Particularly on 4.2, as it is already contained in my 'Schedule of Loss', so the cost has already been incurred? AlsoÂ*do I need my Expert to prepare another report as the Defence states it is not compliant with CPR part 35?
                          You need to include the address of the court in D1 and do not need to include the cost in D2.

                          COMPLETING AN N180 DIRECTIONS QUESTIONNAIRE (SMALL CLAIMS TRACK) GUIDE

                          My posts here are based on my experience of a variety of life events. I have no formal legal training & if in doubt take professional legal advice or contact CAB. If you follow anything I write here you do so at your own risk & I accept no liability for any loss, costs or other outcomes.

                          Private messages are disabled as help is only offered publicly. I do not come on here in the evening, at weekends or on public holidays.

                          Comment


                          • #14
                            Thanks have now posted to the Court and Defendant. Fingers crossed Â*

                            Comment

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