Hi there - professional negligence claim

[jonnyd85]

Des - it looks like the POC will just be a simplified version of my Letter of Claim establishing the duty of care, the breach and the damage incurred. Would you be willing to have a glance if I post something up? I'll just write it without regard to the character count, and see where it lands.

He has until Thursday, but not a peep so far, so I'm not hopeful.

[des8]

Feel free to post.
With luck others will make an input as well

[jonnyd85]

I will post something up in the next couple of days - I waited until I had the final invoices for the removal (making sure the costs didn't go up!) and there is a lull in the building works. It'll just be a rework of the letter of claim - presumably evidence and stuff will just go in the witness statement later

[des8]

OK The particulars of claim are really quite brief, the WS is where the evidence appears

[jonnyd85]

OK The particulars of claim are really quite brief, the WS is where the evidence appears

Ok, how about the following - might be too detailed, but happy for you to criticise it down a bit.

1. [jonnyd] and [surveyor] entered a contractual agreement for [surveyor] to provide a full buildings survey on the Xth of Y as part of due diligence prior to the purchase of a house. As part of the written instructions for this survey, [jonnyd] requested that the survey examine whether there was anything in the house that would complicate or render impossible extending the house, explicitly including an extension of the first floor over the garage.
2. The contractual terms presented by [surveyor] and agreed by the Claimant included a statement that the presence of asbestos would be noted if it could be seen.
3. The Claimant met all his obligations under the contract and received a survey report by e-mail on the Ath of B.
4. The survey report did not identify any visible asbestos; nor did it state likely areas where asbestos could interfere with the extension proposed by the Claimant. The survey contained statements indicating that no significant expenditure could be anticipated with respect to any single aspect of the property; and that there where no reasons why the property should not be extended over and above the garage.
5. The survey report noted a “slight risk” that asbestos could be present in the artex of the house, but no specialist surveys were recommended. Given that encapsulated asbestos is not hazardous to the occupants of a house, nor was it present in the proposed extension works areas, the Claimant proceeded with the house purchase without renegotiating the price, nor with the benefit of any specialist follow-up surveys.
6. During subsequent works, the Claimant decided to have the artex tested for asbestos. The subsequent survey identified untreated, unobscured, unpainted, visible asbestos forming the entirety of the garage ceiling and within the ground floor and first floor soffits of the property. This asbestos was identified as removable only by professionals licensed by the Health and Safety Executive given the health hazards posed during its removal.
7. The Defendant at all times during the engagement represented himself as a chartered buildings surveyor and a member of the RICS. Unknown to the Claimant, the Defendant had been expelled from the RICS in 2014 and had chartered status revoked in 2017. This resulted in a successful prosecution of the Defendant by Rhondda Cynon Taf Council Trading Standards for misrepresentation on 21^st March 2018. This was not known to the Claimant until attempting to engage in informal dispute resolution in March 2019.
8. The basis of the Claimant’s claim is that the Defendant’s duty of care towards him was breached. The duty of care was established by a) the written instructions to the Defendant establishing (in the manner of the case of Farley vs. Skinner [2001] UKHL 49) a specific requirement on the part of the Claimant that the Defendant should have accounted for; and b) Section 3(b) of the terms and conditions of engagement between the Claimant and Defendant, which established a reasonable expectation that visible asbestos in the property would be identified.
9. By failing to identify the visible asbestos or explicitly warn of its presence and recommend a specialist survey, the Defendant both breached the terms and conditions of the contract and their duty of care to the Claimant as an asbestos ceiling could reasonably complicate or cause additional expenditure during building works. Through misrepresenting their current status as a surveyor, the Defendant also prevented the Claimant from seeking better advice from a qualified chartered surveyor, which might have prevented costs from being incurred.
10. The sum claimed reflects the total costs incurred by the Claimant in removing the asbestos such that the building works could take place. This is also a reasonable estimate of the minimum diminution in value of the property, given that this is the amount a reasonable person would deduct from the value of a comparable property without asbestos. However, notwithstanding the diminution in property value, the Defendant’s breach also prevented the Claimant from forgoing the purchase of the property and allowing them to limit their expenditure. In either case, the total loss incurred by the Defendant’s actions is best reflected by the total cost of the removal of the asbestos.
11. The Claimant has attempted to engage the Defendant in advance of this claim by adhering to the Pre-Action Protocol for Professional Negligence, but has received no response to any letters issued in line with this protocol.

[jonnyd85]

Amethyst - I wondered if this should now be moved into the "Bringing a Court Claim" forum? Looks like I will be making a claim

[des8]

The wording below will fit the limits of the online form, and you can then send your more detailed POC

1. At all material times
a. the Defendant misrepresented himself as a chartered surveyor and RICS member
b. the Claimant was a consumer
2. on dd mm yyyy the Claimant contracted with defendant to provide a full building survey for £xxxx
3 Contract included a term that any asbestos would be noted if visible
4 Survey report dd mm yyyy only mentioned possibility of asbestos concealed in artex
5 Claimant only engaged the defendant because of the misrepresentation.
6 Subsequent survey dd mm yyyy identified visible asbestos requiring removal
7. The claimant claims damages following misrepresentation of the defendants status as per the Misrepresentation Act 1967
or failure to carry out the survey with reasonable care and skill contrary to Consumer Rights Act 2015 sec 49
or the defendants breach of contract and breach of duty of care owed to the claimant
a. damages £xxxxx
b. interestunder Section 69 of the County Courts Act 1984 at the rate of 8 per cent a year
c. costs.


In your POC I would emphasise more that you were induced to sign the contract due to his misrepresentation of his status, and also include a reference to the Consumer Rights Act 2015

[jonnyd85]

Thank you so much for that. Looks much more succinct! Once submitted, are you suggesting that I serve additional particulars of claim to add detail, or should I just wait and include that in the WS later on? I recall there is a tick box about sending the POC seperately.

[jonnyd85]

Also,I'll take your advice and restart the larger POC along the lines of inducement so the particulars support claim under any of the three areas you indicated

[des8]

Yes, serve additional POC as suggested.
A lot of it will be repeated in your witness statement, but the POC is where you set out the legal basis of your claim and introduce points of law

[jonnyd85]

Will do. If okay, I shall post up redrafted version of the additional POCs. If you have time, I'd appreciate feedback, but I'm aware there are worthier causes on the forums

[des8]

Post up as it gives others a chance to comment as well

[jonnyd85]

Ok, so for the online claim, I will make add these POCs as you suggest, though I may not include the line about interest as I think this is taken care of by a tickbox that adds it to the POC for me?

1. At all material times
a. the Defendant misrepresented himself as Fully qualified Chartered Building Engineer and Surveyor and member of the RICS
b. the Claimant was a consumer
2. on dd mm yyyy the Claimant contracted with defendant to provide a full building survey for £xxxx
3 Contract included a term that any asbestos would be noted if visible
4 Survey report dd mm yyyy only mentioned possibility of asbestos concealed in artex
5 Claimant only engaged the defendant because of the misrepresentation.
6 Subsequent survey dd mm yyyy identified visible asbestos requiring removal
7. The claimant claims damages following misrepresentation of the defendants status as per the Misrepresentation Act 1967
or failure to carry out the survey with reasonable care and skill contrary to Consumer Rights Act 2015 sec 49
or the defendants breach of contract and breach of duty of care owed to the claimant
a. damages £xxxxx
b. interest under Section 69 of the County Courts Act 1984 at the rate of 8 per cent a year
c. costs.

The additional particulars of claim I will subsequently serve will then be:

1. The Claimant made contact with the Defendant on 12/02/18 after reading his advert on the Local Surveyors Direct website identifying himself as a chartered building surveyor and member of RICS to undertake a full buildings survey of a property that the Claimant was in the middle of purchasing.
2. Accompanying his terms of business, the Defendant provided a CV identifying himself as a "Fully qualified Chartered Building Engineer and Surveyor" including the use of postnominals C.BuildE and MCABE (denoting chartership and membership of the Chartered Association of Building Engineers".
3. The Claimant accepted the qualifications as presented and so entered into a contract with the Defendent to undertake the survey on 6th March 2018.
4. Unknown to the Claimant, the Defendant had been expelled from the RICS in 2014 and had chartered status revoked in 2017. This resulted in a successful prosecution of the Defendant by Rhondda Cynon Taf Council Trading Standards for misrepresentation on 21st March 2018. This was not known to the Claimant until attempting to engage in informal dispute resolution in March 2019.
5. The Defendent therefore misepresented his status to the Claimant and so induced him to enter into the contract.
6. The contract between the Claimant and Defendent included a statement that the presence of asbestos would be noted if it could be seen.
7. In addition to the contractual terms, the Claimant povided additional written instructions to the Defendent to examine whether there was anything in the house that would complicate or render impossible extending the house, explicitly including an extension of the first floor over the garage.
8. These additional instructions would have established an additional duty of care on a qualified buildings surveyor in the manner of Farley vs. Skinner [2001] UKHL 49. Despite the misrepresentation noted, the Claimant is entitled to hold the Defendent's work to the standard of a similarly-qualified individual.
9. The Claimant met all his obligations under the contract and received a survey report by e-mail on the Ath of B.
10. The Defendent's report did not identify any visible asbestos; nor did it state likely areas where asbestos could interfere with the extension proposed by the Claimant. The survey contained statements indicating that no significant expenditure could be anticipated with respect to any single aspect of the property; and that there where no reasons why the property should not be extended over and above the garage.
11. The survey report noted a 'slight risk' that asbestos could be present in the artex of the house, but no specialist surveys were recommended. Given that encapsulated asbestos is not hazardous to the occupants of a house, nor was it present in the proposed extension works areas, the Claimant proceeded with the house purchase without renegotiating the price, nor with the benefit of any specialist follow-up surveys.
12. During subsequent works, the Claimant decided to have the artex tested for asbestos. The subsequent survey identified untreated, unobscured, unpainted, visible asbestos forming the entirety of the garage ceiling and within the ground floor and first floor soffits of the property. This asbestos was identified as removable only by professionals licensed by the Health and Safety Executive given the health hazards posed during its removal.
13. In failing to identify the visible asbestos or explicitly warn of the possibility of its presence, the Defendent a) breached the terms and conditions of the contract, and b) the duty of care to the Claimant, since an asbestos ceiling could reasonably complicate or cause additional expenditure during building works.
14. The Defendent's misrepresentation prevented the Claimant receiving advice from a legitimately qualified buildings surveyor.
15. The Claimant is unable to return to his original financial position by a simple unwinding of the contract, so damages are claimed under the Misrepresentation Act 1967.
16. In the position of a surveyor, the Defendent should have exercised sufficient care and skill to at least note the possibility of the garage ceiling in a property of this age being constructed from friable asbestos. The Defendent's actions therefore constitute a breach of Section 49 of the Consumer Rights Act 2015, for which the Claimant claims damages.
17. The Defendent's actions also breached the contract with the Claimant by not noting visible asbestos, and the duty of care owed to the Claimant as a result of the written instructions provided was also breached.
18. The sum claimed reflects the total costs incurred by the Claimant in removing the asbestos such that the specified building works could take place. This is also a reasonable estimate of the minimum diminution in value of the property, given that this is the amount a reasonable person would deduct from the value of a comparable property without asbestos. However, notwithstanding the diminution in property value, the Defendant's breaches also prevented the Claimant from forgoing the purchase of the property and allowing them to limit their expenditure. In either case, the total loss incurred by the Defendant's actions including misrepresentation is best reflected by the total cost of the removal of the asbestos.

[jonnyd85]

des8. Just a bump - keen to be sure I'm writing it right before I submit, since I'm aware there are time limits. Appreciate all thoughts from anyone else's well!

[des8]

Thanks for the bump, I missed your post ...sorry

That is much too wordy and is more like a witness statement than the PoC.
Leave it with me and I'll draft something up in the next day or so