Hi there - professional negligence claim

[jonnyd85]

Just joined - have lurked here for many years. Now need some advice of my own, and hopefully will be able to help people along the way!

[jonnyd85]

Not sure where to post exactly

I was buying a house I'd planned to extend, so I got a full buildings survey from an experienced professional. In my instruction, I told him I'd planned to extend and to let me know about anything complicated. He said no and flagged up nothing wrong

But he didn't notice that the whole ceiling was made of asbestos (nasty stuff needing a license), and didn't recommend doing anything. Said all was well. For lots of boring reasons I won't mention in this first post, he was quite negligent

Problem is, it turns out he'd lied to me and was actually struck off by RICS. I've spoken to a solicitor, but I'm concerned about the chance of success if he had no insurance. Not sure I have the money to fund massive success fees or pursue it with a professional and the sum is inside the small claims limit.

Worried he might not have PI insurance anyway and not sure what I should do. It's not a small sum and I'm flailing about a bit trying to work out what I should do.

Have tried pursuing it with the surveyor, but have reached the end if his formal process.

Any thoughts welcome

[des8]

Hi and welcome

If the surveyor is a sole trader without PI cover (do you know that for sure?) carry out a private investigation to see if he has any assets.
If he has none i.e. doesn't own his own house and his car is on HP it probably won't be worth suing him anyway.

However as you say this falls within the small claims limits why not consider initiating court action yourself?
This does not require solicitors so your costs would be minimal

[jonnyd85]

Hi and welcome

If the surveyor is a sole trader without PI cover (do you know that for sure?) carry out a private investigation to see if he has any assets.
If he has none i.e. doesn't own his own house and his car is on HP it probably won't be worth suing him anyway.

However as you say this falls within the small claims limits why not consider initiating court action yourself?
This does not require solicitors so your costs would be minimal

Thanks for replying - I don't know for sure that he has no insurance, but I don't know how to check.

I've done some reading into it and I think I have a legal case - I did write to him (admittedly via e-mail) and we had an exchange where I laid out my case. I'd be okay to try it on my own, but I'm not sure how wise it is (fool for a client and all that). Plus my reading suggests I should follow a pre-action protocol with a series of formal letters, and that gives me pause only because I haven't yet found any examples where I could get the tone/content/format right

I'm encouraged by your post, though!

[des8]

Yes, there is a protocol to be followed, but it isn't really that difficult.

The insurance you might not find out about until you actually make a claim.(if he has a PI policy it could contain a non disclosure clause)
Even if he has PI cover it is possible that the excess will be more than your claim, so the insurance might not even come into play.

[jonnyd85]

Yes, there is a protocol to be followed, but it isn't really that difficult.

The insurance you might not find out about until you actually make a claim.(if he has a PI policy it could contain a non disclosure clause)
Even if he has PI cover it is possible that the excess will be more than your claim, so the insurance might not even come into play.

Ok, great - I might already have started the protocol (inadvertently) via e-mail, but would it be worth me starting again by putting it in writing?

Also,is there a better part of this forum to post in about this, or is my problem not one generally dealt with here?

[des8]

If you are proposing to issue proceedings we can ask admin Amethyst to transfer it to Court Claims and Issues

Well how far down the protocol have you gone: https://www.justice.gov.uk/courts/pr...tocol/prot_neg

[jonnyd85]

If you are proposing to issue proceedings we can ask admin Amethyst to transfer it to Court Claims and Issues

Well how far down the protocol have you gone: https://www.justice.gov.uk/courts/pr...tocol/prot_neg

I'm not ready to issue proceedings,I don't think. I sent an initial e-mail explaining that I thought he had been negligent and asked him to consider my complaint. He replied that he hadn't been (basically). I then sent more of a blow-by-blow account, which looks like the contents of a Letter of Claim in that I tried to establish the basis of my claim and value. He just replied saying he still thinks he hasn't been negligent

I don't know that I can honestly say I followed the protocol though, as I've only become aware of it since considering my next steps. So perhaps if I'm to go it alone, the best thing is for me to start at the beginning with the preliminary notice?

[des8]

So best to start from square one.

To make a successful claim you need to prove negligence, then that the negligence caused you loss and then quantify that loss.

Besides the negligence claim do you have a claim for breach of contract (they often go hand in hand)?

[jonnyd85]

Yes, I think so. In the agreed Ts and Cs, he said that he would note any asbestos if visible though it was mainly used as a caveat that he wasn't going to rip the house apart. I feel that ought to count as a breach, but appreciate that's not how the law works

Does that change things at all?

[des8]

"would note any asbestos if visible"
Was it visible or was a ceiling painted or papered ?

A surveyor won't necessarily look under floorboards or behind walls but a full structural survey should include the surveyor’s opinion on the potential for hidden defects in this area.

IMO a surveyor should probably have spotted the use of asbestos. I speak from limited personal experience in that my very old house was extended in the 1920s. The extension was built with materials apparently filched from a nearby War Department site and instead of plaster the walls and ceilings were lined with asbestos sheeting. All painted and papered but easily spotted. (PS not nasty if you don't disturb it!)

Did he intimate that he was a member of RICS?...if so he misrepresented himself.

[jonnyd85]

No, it was completely raw and untreated. Represented himself as a Chartered Building Surveyor but had been booted from RICS and wasn't chartered anymore.


He noted in the report that buildings of this type might contain asbestos ("e.g. artex might contain fibres") and in his correspondence with me, that's his defence. I've spoken to a chartered surveyor (with a view to involving them as proceedings progress) who has suggested that this is not adequate as a "catch-all" statement given the age of the property and the fact that I'd given a written instruction about my intention to build over the garage.

My only pause for thought is that people think I should really involve a solicitor, but what I want to do is work out if he has PI cover if I'm going that route. The paperwork doesn't look too hard, to be honest, but I'm a cautious chap!

[des8]

If your claim is allocated to the small claims track you would not be expected to involve a solicitor.
If you do you will not be able to recover his charges, even if you win.
Similarly if he employs a solicitor you will not have to pay those costs if you lose.
(unless there is unreasonable behaviour)

If he has PI cover that should become evident fairly soon after starting the claim.
I assume that if he has that cover he will inform his insurers who will take over his defence (or capitulation!)

If he doesn't have PI cover does he have assets sufficient to satisfy a judgement when you win?

[jonnyd85]

If your claim is allocated to the small claims track you would not be expected to involve a solicitor.
If you do you will not be able to recover his charges, even if you win.
Similarly if he employs a solicitor you will not have to pay those costs if you lose.
(unless there is unreasonable behaviour)

This I didn't know - many thanks!

If he doesn't have PI cover does he have assets sufficient to satisfy a judgement when you win?

This I don't know the answer to. I think if I follow the pre-action protocol, I should find out fairly early if he has PI cover (since the preliminary notice will ask him to notify the insurer). Short of hiring an investigator, I'm not sure how I would work out the available assets. The chap is still practicing, so has an income - that's all I know

[des8]

Well if you know where he lives you can check on land registry if he owns the house or not, and do an HPI check on his car.