Striking out a pleading that does not comply with the rules

[cam69]

Hello

I am involved in a dispute with a builder. I have started a new cash which has recently been allocated to the fast track.
I am becoming more and more aware that the Defence put forward by the builder may not comply with the CPR (rules).

Could someone more experienced take a look at the Particulars of Claim and Defence and offer an opinion as to whether it would be possible to have the Defence struck-out (or at least require it to be restated). I am supposing that I would need to make an application to the Court.

Thanks - C.

[CLL1]

I would not suggest an application is made to strike it out. Any arguments are technical and, even in my experience, a judge would likely order that the Defendant simply re-drafts. From what I can see, the non-compliance (assume CPR16) is not fatal to understanding D's position. I've made similar applications (including, e.g., where no statement of truth is present, and no strike out was allowed) so I wouldn't bother if I were you.

[cam69]

Thanks very much for responding. It is useful to know your experience.

[Amethyst]

The Defence does respond to the particulars so it is unlikely to be deemed suitable for strike out. Additionally, he has stated he's waiting for legal insurance to kick in then he'll have solicitors on the case, so it might be in your interests to let things progress as far as possible without solicitor involvment ( particularly costs wise as it seems to be over £10k and costs will soon ramp up once he has formal representation )

has a duty of care to assess a wall surface before selecting a coating

Do you have a copy of the original contract/terms between you and the company, and the guarantee terms ?
eg is this in there

claims under the guarantee must be reported within 14 days of any defects becoming apparent.

( and if so, did you notify within 14 days of noticing an issue, or did you wait until you wanted to sell the house ? (which seems to be what is being alleged by the Defendant )

Does your independent report and the report the defendants obtained say the same things?

2. Cost of removing failed coating, making repairs as necessary and replacing coating with an alternative that is suitable for the brick type used

Have you already obtained a quote for doing this? and have you particularlised the amounts being claimed accordingly ? ( between £10k and £25k leave a lot of wiggle room in assessment - and you don't appear to have included a claim for specific remedy that the defendant company honour the guarantee and redo the work accordingly ? )

[cam69]

The Defence does respond to the particulars so it is unlikely to be deemed suitable for strike out. Additionally, he has stated he's waiting for legal insurance to kick in then he'll have solicitors on the case, so it might be in your interests to let things progress as far as possible without solicitor involvment ( particularly costs wise as it seems to be over £10k and costs will soon ramp up once he has formal representation )

OK - thanks the advice. We did run for as long as possible without solicitor involvement (as you proposed) but the defendant has now appointed a solicitor (though not linked to an insurance company).

Do you have a copy of the original contract/terms between you and the company, and the guarantee terms ? (and if so, did you notify within 14 days of noticing an issue, or did you wait until you wanted to sell the house ? (which seems to be what is being alleged by the Defendant )

Yes - we do have the original contract and yes we did comply with the terms. There is some discussion as to what "becoming apparent" actually means (when applied to a gradually acting process).
No - we did now wait until wanting to sell the house.

Does your independent report and the report the defendants obtained say the same things?

No. That would be too easy!. Our report concludes that the defendant did not prepare the walls sufficiently before applying the coating. His report asserts that the failure is due to lichen on the house which pre-existed and about which they had no knowledge.

Have you already obtained a quote for doing this? and have you particularlised the amounts being claimed accordingly ? ( between £10k and £25k leave a lot of wiggle room in assessment - and you don't appear to have included a claim for specific remedy that the defendant company honour the guarantee and redo the work accordingly ? )

Yes. We had three quotes and chose the lowest. (£17k) This we have detailed in the claim. We had to have the work done because the house was starting to be badly damaged. Replacing the coating was not a valid option because this would simply have precipitated further damage. We did invite them to carry out the necessary repair work but got no response.

[charitynjw]

Any chance of ADR?

Ie
https://www.gardentrellis.co.uk/m/54...s-category.jpg

https://www.ciarb.org/#

The courts do tend to expect at least an effort to do so.

[cam69]

Hi - thanks for posting. We have asked for ADR in multiples forms but the defendant has so far rejected them all.