Judges' Varying Directions - Questions

[COMROG]

Background
I am the managing director of a residential block of flats.
In 2017, I obtained a quote from a roofing contractor to renew the roofing to an existing block of 12 garages following a site survey carried out by the firms managing director.
I considered he should have identified any potential problems relating to the location (trees), structure (deflection), drainage goods, etc, allowing for a contingency should it be required.
Prior correspondence from the company confirmed that an inspection of the existing structure would be carried out following the removal of the existing roofing.
The quote accepted, the work was carried out with a 12 months guarantee.
OK in summer, but 6 months later in winter, garages leaking, timber wall plate & anti-condensation membrane soaked, water running down the rear walls internally and ponding on the floor.
The initial cause was analysed by the contractor’s MD to be a dilapidated, blocked & overflowing rainwater gutter.
The parties verbally initially agreed to remove the gutter and replace it with a purpose-made deflector flashing (only waste ground at the rear of the garages).
However, further investigation revealed that the manufacturer's installation recommendations (min pitch of 4 degrees) and other accepted good practice installation considerations (roofing sheets laid into wind, anti-condensation material not removed or sealed, no ventilation, no joist protection) had not been adhered to.
In 2018, I contacted the NFRC and obtained a chartered surveyor’s report.
Both agreed the ACM was the main problem, stating the external 50m should have been removed prior to installation in line with good practice.
The contractor did not remove (due to practical difficulties) and applied a sealant that did not solve the problem.
The NFRC arranged a further inspection & report, not independent, but an NFRC member roofer, stating the gutter should be replaced.
Over the past 4 years, the contractor has made 4 offers to carry out minimal works of sealing & fixing a flashing -
all rejected because they do not come with any assurance of success or guarantee should the problem reappear.
Present Situation
An estimate to remove and re-instate the roofing was obtained circa £10000.
In April 2020 a claim was issued
A mediation hearing in August was unsuccessful.
In October, a judge allocated the case to the Small Claims Track for a preliminary hearing this February (delayed to March) to explain additional directions, as follows:

1. Appointment of a joint independent expert.
2. ‘Scott schedules’ on the alleged defects.

In the telephone hearing, another 2nd judge, saying he had read some documentation, considered that without the gutter, it would be difficult for the case to succeed.
I wanted to comment but was not given an opportunity.
The judge suggested the contractor prepare a specification of the work that (I presume in the contractor's opinion) would be required to eliminate the ingress of water.
I presume the work would be at no cost to the residents (as were the previous offers made by the contractor).
I presume the work would have to include the provision of a new gutter, previously discounted by both parties due to blockages, etc (garages situated under large trees with heavy leaf fall).
The Order stated:
1. The proceedings are stayed until 4pm 29 June 2021.
2. By 29 June, if neither party has requested further directions from the Court, the claim will be deemed settled.
On 8th April 2021, an email received from the contractor offering to quote for the replacement of a new gutter.
12th April, I replied declining repeating the reasons stated above.
Observations

1. Both the NFRC and the surveyor agreed that the external anti-condensation material applied to the underside of the roofing sheets should have been removed, if not prior, definitely after installation.
2. The ingress of water is/was not caused by the absence of a gutter nor resolution reliant upon its replacement.
3. Ingress of water evident before the gutter was removed.

Questions
In view of:

1. The 1^st judge appeared to have grasped the situation in requiring a single joint expert to evaluate the cause(s) of the problem in order to reach a conclusion fair to both parties.
2. The 2^nd judge appears not to have fully grasped the situation, overruling the 1^st judge.

Can I now contact the court stating replacing the gutter alone cannot be considered a full solution to the problem and request the directions made by the 1st judge be reinstated in order for a joint chartered surveyor to be appointed in order for the case be assessed on independent expert evidence as originally decided?

[des8]

You can ask the court for further instructions by applying for further directions.
you need to draft an order containing the directions you want and send it to the court as part of your application.
Probably can use first judge's directions as a template

Use form N244 (and remember you might need to serve it on the other party yourself)
There might be a cost (ask the court)

[COMROG]

Thank you DES8

Yesterday, out of the blue, without prompting, contacting the court, etc, I received the following order made by the 2nd judge having reviewed the case:

'No later than 3 working days before the CMC the parties shall exchange details of up to 3 potential expert surveyors to include confirmation of the surveyor's ability to provide a report and the proposed fees to be charged and the parties shall file the details of potential experts with the court.
The court will intend to make an Order for expert evidence from a single jointly instructed expert whose fees shall be paid equally by the parties.'

The order states ' up to 3 potential expert surveyors' - I do have just one in mind (based solely on reasonable cost) - is there any harm in just submitting only one?

I should be grateful for guidance on how to approach possible expert candidates, i.e. is there a template for obtaining the info the court requires?

[des8]

Whilst only nominating one potential surveyor is within the parameters of the order, IMO it would be wise to list at least two.

you will need to ask the surveyors for their qualifications and experience, highlighting especially if they have acted previously as expert witness for a court.

The RICS have an expert witness training course, so see if any potential surveyor has qualified in this

[COMROG]

The roofing contractor (ltd company) has given notice (The Gazette 13.05.21) to appointing administrators for voluntary liquidation.
Is there any point in registering a claim (by 11.06.21), i.e. would the outstanding court claim be considered proof of debt by the liquidator?

The notice to creditors states the company is solvent & the directors expect all creditors to be paid in full.

Would the liquidator be made aware of the claim - would he be expected to respond to the court (CMC date 26.06.21) in respect of the order mentioned above?

[des8]

You need to contact the administrator.
. If the defendant goes into administration then any proceedings will be automatically stayed and consent of the administrators (or court) will be required to continue them
The administrator can admit a claim if they intend to make a distribution to unsecured creditors.
If the administrator rejects the claim, then you can appeal that decision through the insolvency courts.