Claim against a house builder

[jaguarsuk]

So the Defendant's solicitor has now sent me their experts report, along with the instructions that were sent to them by the solicitor. This was on an unprompted basis but I noticed it is dated 12 December so not sure how they filed their defence at the end of November?

The expert acknowledges a lot of the issues, but disagrees with the most expensive, being the roof, however, he doesn't cover it in much detail, as he only looked with binoculars. For the defects he agrees with, the expert tries to dismiss the points as “minor snagging”, and believes for the items he agrees with will only cost Ł2,500 to fix - despite my quotes for the roof alone coming in for more than that. I doubt experts ever agree but not sure what I can do?

A very good question, they should have sought an extension to file pursuant to CPR 15.5.

Experts will never agree, there's is saying one thing and yours the opposite and it'll be for the judge on the balance of probabilities to decide which is correct. Credibility is going to mean an awful lot, so pointing out the fact they defended before even having the facts to ascertain their position will be a good point at denting that and the convenience that their expert agreed after the defended with them.

The expert has also not covered a number of the issues in my letter with detailed particulars from 4 October, which he does acknowledge he has read, and it is also stated in the instructions provided by the solicitor. As their defence dismissed I had provided detailed particulars, does this not prove they have misrepresented the facts in their defence (and have failed to address specific points)?

Absolutely it does and you should ask as you did in para 4 of the reply to defence that a judge rule on those points in the detailed particulars of claim for the reason you set out.

Ignoring those PoC, asserting in a court document with a statement of truth they have not received them and then admitting in writing they have had them all along should be very damaging to their credibility.

In summary you'll need to attack their credibility as part of your witness statement and then the credibility of their expert witness by association when the statement gets to that bit, then reiterate in court those things.

[NBluth]

Mediation was unsuccessful but I wasn't optimistic about it.

I have received a 'General Form of Order or Judgement from the County Court, and it seems either the Judge did not read the Reply to Defence, or missed the list of defects.

I have therefore drafted the attached additional particulars keeping the key points from the Reply to Defence (i.e. that the developer has already been in possession of this list for some time).

Is this acceptable and/or is there anything else I need to include?

Thanks again

[jaguarsuk]

Yes, but the order says you must file and serve the PoC, so despite the fact you already have you need to enclose them with the additional ones to ensure you comply with the order.

I would also enclose a copy of the letter showing that they had them as an exhibit for para 5.

[NBluth]

Thanks JaguarsUK - I assume you mean the like this updated version?

It felt quite therapeutic to write this, as it feels like a slam dunk, but I doubt it is that simple...

Thanks again.

[jaguarsuk]

Yes like that.

[NBluth]

Thanks for your help JaguarsUK - the world has changed a lot since mid-February. Hope you're keeping well and safe.

I have received a Preliminary Hearing Notice for May - was this to be expected (and is this good/bad)?

Also what do I need to prepare for this hearing? I was really going to have a crib-sheet of the key points if asked to speak, along with originals of the Claim, Reply to Defence, Additional Particulars as well as the Experts Report from the Defence (since it shows there are issues and there are factual inaccuracies in the Defence).

Thanks again.

[jaguarsuk]

This will just be to establish what the claim is about, what is disputed, direct what the next steps might be and that could include instructing a joint expert witness.

[NBluth]

So the preliminary hearing was scheduled for today at lunchtime via Conference Call due to Coronavirus.

The Defendants solicitor called me this morning to “confirm the fact” that I had refused the Defendant access to carry out the remedial works their expert acknowledged in his report (which I think he said meant I was in breach of contract). I said I had never refused access and didn’t agree with that as a fact, he then tried to ask the same question again and again, and each time I gave the same response, and said this isn’t a productive call so we can discuss the case at the hearing and I am hanging up now.

I then dialled into the preliminary hearing, and neither the solicitor or anyone from the Defendant attended, so the preliminary hearing has been put back a week. The Judge was very nice, asked me a few questions about the case, and I think he was giving them the benefit of the doubt as the technology is new.

It has got me wondering though, am I walking into a trap with the phone call this morning?

[jaguarsuk]

No, but write to advise the solicitor that you will no longer be communicating with them by phone and they should email or send a letter if they wish to communicate with you. That you do not wish to litigate by correspondence and therefore any communication must be necessary and not them trying to argue the claim.*

What is written down can't be changed where as they can claim anything was said on the phone.

[NBluth]

Thanks JaguarsUK.The Preliminary Hearing has been re-scheduled for this Thursday and I have now just received the attached.

It feels like bullying / intimidation tactics as the builder has had many opportunities to fix the defects and has been silent for months. Also, I should have received this letter before last Thursday so I definitely believe they failed to attend the hearing on purpose.

Is there a way I should respond to this letter, or should I just ignore it - since I cannot be expected to respond to a letter two days before a hearing?

[NBluth]

Should I send the below?
-------------------------------------------------

Following your telephone call last Thursday prior to the scheduled preliminary hearing, I respectfully request that all future correspondence is in writing, should you wish to communicate with me.

In respect of your letter dated 12 May 2020, I have never previously refused your client access to my property to carry out any remedial works, and I request that you provide the evidence that supports your statement I have denied them access.

I would also note:

1. Your client has previously denied in writing many of the defects exists;
2. Your client has been given many reasonable opportunities to rectify the defects (between August 2017 and July 2019) and has failed to do so;
3. Your client failed to respond to a ‘Letter Before Claim’ dated 4 August 2019; and
4. There is a clear lack of trust between the parties given the above issues and your letter today (which makes statements that are untrue).

Furthermore, I will be highlighting to the Court:

1. The Defence is dated 28 November 2019 and states in paragraphs 3.11 and 3.12 that your expert, Mr ……., has provided “an estimation of costs” and “The Defendant’s expert contents that the Property does have minor snagging issues”, however your expert’s report (as corroborated by your letter today) was dated 16 December 2019, and as such confirms your experts report was unavailable when the Defence was filed; *
2. The Defence failed to respond to the allegations set out in the detailed particulars of the claim, and pursuant to CPR 16.5(5), I will be respectfully requesting the Court adjudge that your client be taken to admit those allegations; and*
3. Your letter dated 12 May 2020, as it should have been sent before the original preliminary hearing (7 May 2020), which [Legal Firm] failed to attend, and as such I will be seeking a Costs Order for unreasonable conduct.

Yours faithfully,

*
*

[jaguarsuk]

I'd change it to this....

Following your telephone call last Thursday prior to the scheduled preliminary hearing, I respectfully request that all future correspondence is in writing, should you wish to communicate with me.

In respect of your letter dated 12 May 2020, I have never previously refused your client access to my property to carry out any remedial works and should you decide to assert such accusations to a judge at the hearing I will ask them to put you to the strictest proof to substantiate your supposition.

I'm not able to accept the offer put forward and I feel it's not being made in good faith, but merely in an attempt to 'game' the process.

There is a clear lack of trust between the parties given your client has previously denied in writing many of the defects exists, has been given many reasonable opportunities to rectify the defects (between August 2017 and July 2019), but has failed to do so and your letter today making false statements. Consequently I have no faith in your clients ability to put right the defects and do not trust them to do any work.

Should your client wish to make a serious offer to settle the claim feel free to put one forward with a prepared consent order with your client bearing the cost of sealing it and it will duly be considered.

Yours faithfully,

Also you only just got a letter they are claiming was emailed, I assume you didn't get the email and so you should point that out if it is the case.

[NBluth]

Thanks JaguarUK, looks great. Sorry, I wasn’t clear - the solicitor sent the letter today via email and I believe post. However, I may not receive the actual letter until Thursday (which is the day of the rescheduled preliminary hearing). It’s all very last minute.*

[NBluth]

So this is the email response I’ve just received. Looks like he’s trying it on?
———————-

If you seek legal advice you will be in a position to understand what your duty to mitigate entails.
*
The expert has identified what works are required and our client has openly offered to carry out those works.
*
It is unclear whether you are claiming that new issues have arisen since his inspection and report or not.
Can you clarify please?
*
Your refusal to give access to allow the remedial works to be carried out puts you in breach of your duty to mitigate and is unreasonable conduct
*
As for your last paragraph you will have to explain it in a clearer fashion as it is confusing
*
*
If you are going to continue to refuse access this will be drawn to the courts attention at the next hearing as it also puts you in breach of the overriding objective under CPR 1 which sets out *both parties duty to try to resolve disputes in an amicable fashion and act reasonably t0 avoid wasting the courts valuable time and resources
*
*

[NBluth]

I ignored this email, and have just had the Preliminary Hearing. The solicitor raised none of the issues above.

I offered the use of a Single Joint Expert - this was rejected by the Defendant, but the Judge said he appreciated the offer.

The Defendants solicitor tried to push it back to mediation, however, I pointed out that the dispute resolution service of the warranty provider has been used three times. The Judge rejected this request, despite almost an argument from the solicitor. I took this as a positive.

The Judge has ordered for the Experts to have a conference call to try and narrow the issues to those they agree on, and those they don’t. However, the Claim will proceed and will need to follow the directions in the Order on timetable for Witness Statements etc.

The saga continues....