Professional Negligence Claim against Architect

[ibrox1]

I arranged to build an extension to my home in 2007,to house my elderly in laws,after my mother in law was diagnosed with Lewy Body dementia.It was apparent that my father in law who also had serious health issues would be unable to cope.The build of the extension enabled them to stay with my wife and myself in adjacent living arrangements,while simultaneously providing them with independent living arrangements which they desired and we preserved.I found an Architect and checked that he was registered.
The architects terms of engagement was to provide a full architectural service from feasibility to completion including attending regular site meetings and inspections of works.
The Architect then proceeded to produce all plans,specifications,technical data including calculations which I later found out was normally completed by a Structural Engineer all in his own handwriting.

To all intents and purposes there were no problems with the build,which existed right up to when my last remaining in law passed away.August 2016.After a period of mourning we decided to alter the extension and called in a builder for the purposes of changing the extension to something more appropriate for our family needs.Just prior to the builder calling after furniture was removed I noticed that a piece of wallpaper was not in alignment with the fireplace and speculated on reasons for this including a potential slope in the floor.
The builder came to my home to discuss alterations when I mentioned the wallpaper alignment issue.He took a laser and confirmed there was an imperceptible slope,checked the drawings and via an inspection hatch verified that what was built bore no relation to the approved drawings and completion certificate and did not comply with building regulations..Worryingly he reported that there were no dwarf walls to support the structural floor timbers which was verified at a later date by a structural engineer and it was likely that my imperceptible slope would deteriorate further which it did.
Building Standards confirmed that the build was not an approved construction and I would need to apply for a new building warrant to make good or they would use their enforcement powers.
The work required the extension to be stripped back to a shell and rebuilt.
Building Standards also indicated that when the Architect filled in the completion certificate this was a statement confirming that the build matched the approved drawings,was of a satisfactory standard and met building regulations. Knowingly making a false statement was a breach of the Building (Scotland) Act 2003.
I managed to establish from a statement by the Architect that during the course of his inspections the builder wanted to change the construction of the substructure from concrete to timber and he went along with builders wishes without drawing up a suitable plan for the builder to use in construction.Building Standards advise when he came across this situation he should have applied for an amendment to building warrant ,obtained approval and certainly not making a false declaration in the application for completion certificate.
The other issue is that the Architect was responsible for making inspections of my home and clearly should have seen that there were no dwarf walls built to support the timbers above.
Last year I decided to complete the floor works and duly appointed another architect and a structural engineer to provide drawings and plans.These works were approved by building standards and the work started in February of this year.While stripping out the builder being diligent checked the ceilings with a laser and noted deflection.He contacted the structural engineer who told him to remove carefully.
When the ceilings were removed the structural engineer visited and indicated that the work again was not according to approved drawings and did not meet building regulations.
He instructed the builder to urgently prop up the roof in several places,and produced a plan of work for roof strengthening which included fitment of a steel beam and doubling up of all roof supports.
Application had to be made to building standards for an amendment to building warrant.
For a second time the build was not to approved drawings or met building regulations,and apparently not inspected with false declaration in the application for completion certificate.

I then submitted a claim to the Architect`s Indemnity Insurer who has rejected the claim on 2 grounds on the advice of their solicitor.

Firstly,the claim has prescribed(out of time) as the limitation period is five years from date of loss.(Prescription and Limitation (Scotland) Act 1973 section 6(1).More than 5 years have passed since practical completion(and occupied) and I have not produced evidence to the fact that I could not with reasonable diligence have been aware,that damage occurred until or a date after 2015.
I have countered this by saying claim is predicated on section 11(3) of the 1973 act which provides that the prescriptive period until the claimant is aware or could with reasonable diligence have been so aware that loss,injury or damage had occurred.
In support of this I produced a letter from the builder which states initially the slope was imperceptible and also of serious deterioration in my property between the date he first saw it in 2017 and when he started remedial works in 2020,while I can also provide other witnesses who can say they were unaware of loss or damage between 2007 and 2017.
My position is I was unaware of any loss or damage prior to 2017 and/or 2015 as they stipulate.

In response they say I have not produced convincing evidence,which I understand to be evidence that a court can rely on.They say there is a test of convincing evidence.
What is this and who can I get to provide this if there is a test of convincing evidence.

The second item is that I have not produced an expert witness report on professional negligence from an appropriate person.
I understand that is required for court,and I did approach an expert who on reading paperwork concluded this pointed to professional negligence.
However,my difficulty is how do I obtain an expert report in lockdown suitable for court. I have retained substantial pictorial evidence and wonder if this would suffice and as remedial works complete would this hinder my claim.

As the expert report would cost several k I am loathe to commission this without resolving prescription.Can this be achieved and how?

Advice welcomed.
Thanks.

[ibrox1]

Hi
Sorry to post again but I am anxious to see if it is regarded that my claim has more than a 50-50% chances of success to persuade me to bring a case to court .
Grateful for any input.

[des8]

In civil litigation the burden of proof lies with the party asserting an allegation of fact.
It is for the claimant to prove his case.

There are two standards of proof.
1) the balance of probabilities, and
2)beyond reasonable doubt


The test of clear and convincing evidence is (I think) something dreamed up across the pond (!)

Regarding "expert witness" I think what you need is a professional's factual report on the substandard building.
An expert witness can only be appointed with the agreement of the court, and will give his opinion about the matter.

Other than that I doubt we have enough information to make a decision on whether or not you have a more than 50% chance of winning, but tagging R0b for you

[ibrox1]

Hi DES8

Thanks for response.
I have a Structural Engineer report which comments on the condition of the extension.His comments are solely on the underlying (latent) damage to the floor(substructure/no dwarf walls to support structural floor timbers) as I was unaware and he did not find any fault relating to the roof.
Equally I had a different Architect and another Structural Engineer employed to draw up drawings and specification for the floor and they were all unaware of deflection in the ceiling.
The also latent damage to the roof was only discovered when the workmen started repairs to the floor which followed after the engineer report was obtained.
The defender`s solicitor indicated to me that they would not consider the matter without the expert witness report.I understand in Scotland no certification is required by the court and this something I would need to do and pay for and unavoidable.The expert has to appear at the proof to give oral evidence.My concern is not so much what that report says,but as it costs around several thousand £ it would be superfluous if I cannot overcome prescription.I would like clarification if the expert report only covers the Professional Negligence aspect and whether it addresses prescription.
I would be happy to engage a solicitor on no win no fee and tried to find one without success.

[ibrox1]

Hi;

Just wondering where I go from here.
From an era where not sure what tagging@ Rob means and what happens next.
Basically I need to know whether I can justify paying X thousand £ on an expert report on Professional Negligence.It seems sensible to me prior to doing that I must be assured I can overcome the issue of my claim being prescribed( out of time).My case is with reasonable diligence I was unaware of loss or damage
.From the advice given.I can only do this by proving;
A.On the balance of probabilities and
B.Beyond reasonable doubt.
That I was unaware of loss or damage.

By what means can I prove this.??
Already rejected by the indemnity insurer`s solicitor as insufficient evidence is a statement by the builder who found both defect to floor and 3 years later roof is that the damage was virtually imperceptible for a layman to make a determination.Also I can produce evidence from other witnesses who visited the extension to say they were unaware of damage to floor or roof.

What and by whom would be considered as acceptable evidence by the insurer and/or court that represents "on the balance of probabilities" and "beyond reasonable doubt".

Thanks

[des8]

It seems to me that Sec 11 (3) of the Prescription and Limitation (scotland) Act 1973 is pretty clear about secondary prescription period.
However a Supreme Court case (Gordon v Campbell Riddell Breeze Patterson) threw doubt on that so a 2018 act (Prescription Scotland Act Sec 5 amends the earlier act, but as yet is not in effect!

A survey and report by a qualified surveyor might prove sufficient for your needs.

Tagging R0b was a call for help from a more knowledgeable poster than I !

[R0b]

I will have a look soon but I'm not particularly au fait with Scottish law so I may be of no help at all!

[ibrox1]

Thanks Des8 and Rob
I certainly be interested in Rob`s view despite his specialism in English Law..

I employed a Structural Engineer to work in conjunction with an Architect to draw up plans for remedial work to the floor.I then had to call the Structural Engineer in again when the builder discovered the defect to the roof support structure.
Would a report from him suffice?

The difficulty in obtaining a report in this lockdown climate which relates to both a survey report and an expert witness report on Professional Negligence is actually getting someone to physically visit.I expect those professionals are working from home and using technology to assist and I have pictorial evidence.
The other issue is that having undertaken remedial works as it was a requirement of Building Standards and also had water ingress that these defects effectively have been removed by way of the remedial works.Therefore defects are not now available to view.
Does this cause an issue ?

Lastly,are you aware of a way of getting a solicitor to act on a no win no fee basis ?

[R0b]

So, I'll try my best here but it is largely based on English law so there might be some discrepancies I'm not aware of.

Is an expert witness really necessary?
The short answer is I don't really know, something you will have to decide on yourself. Construction/property disputes are naturally complex and tend to engage an expert witness to provide an assessment of the cause/effect and other matters such as cost and remedies - like Des mentioned, an expert witness owes a duty to the court, not the person who instructed them - however, it is not always the case that an expert witness is needed.

Depending on the nature of the dispute, it is perfectly possible for the court to assess the evidence based on a technical report from an expert advisor (just like you might get a report for a damaged car or damaged goods). This is essentially what we call someone who is an expert in their field but isn't required to be called upon as a witness to give the court an expert opinion. In England and Wales, there is a pre-action protocol for construction disputes and in there it discusses the requirement to consider whether an expert witness is needed, but there isn't an actual requirement for one to be instructed pre-proceedings and I would imagine the same would be for Scottish cases but that's something you might need to check.

In my view, it would naive to assume that an expert witness is necessary in all cases, but like Des mentioned, it may be appropriate for you to rely on a report from an expert advisor setting out the problem, likely cause and effect as well as cost implications. Situations where an expert witness might not be necessary could be straight forward claims where the builder hasn't done the job to the standard required and a report is capable of assessing the damage. However, if there are other outside factors being claimed that could of caused the problem or at least contributed - I'm thinking Japanese knotweed for example, then you might need to consider instructing an expert witness. It may be that a judge thinks one is needed and will make an order for one to be appointed as part of case management directions but you can request/appoint one post-proceedings and doesn't have to be before.

Also the reference to clear and convincing evidence is drivel. Scotland is balance of probabilities in civil cases if I'm not mistaken and clear and convincing evidence is an American thing. It is a halfway between balance of probability and beyond reasonable doubt. In other words, far more likely to be true than false. Are these insurers stateside? Can only be the explanation as to why that was mentioned and a US lawyer was dealing with it.

Just a final point, don't be disheartened by the fact they are rejecting your claim, the aim of lawyers is to make sure the claim goes away by whatever (legal) means possible. It is always going to be the case that a lawyer/company will reject your claim unless there is overwhelming evidence that there is basically no defence.

Have you got any legal expenses cover on your insurance? You might want to look there as most expenses cover gets you property/contractual disputes but the ceiling amount will be limited, usually £25k, £50k or £100k depending on how much you were prepared to pay.

[ibrox1]

Hi Rob/Des.

To explain further I did manage to access a solicitor through my home insurance legal expense cover.This however came to an end when the solicitor indicated that my claim would not retain funding as it no longer carried more than a 50-50% chance of reasonable success.To enable my claim to go over the 50-50% threshold would require a positive expert witness report by a suitable expert supporting the view that the Architect was negligent as per Hunter V Hanley..My engineer report was dismissed as not being a suitable person to comment on actions of an Architect and needs to be an Architect.
The costs of this expert report both for a solicitor to instruct an architect expert report and for the actual report would come to 4.5 k. with no guarantee of a successful outcome.Even if I did get a positive report that in itself would not be sufficient.If I did get a favourable expert report then this would be sufficient to kickstart my legal expenses cover but leave me still to overcome prescription.

I have no doubt that in order to progress my claim that expert report is required but paying out a substantial amount of money and still to overcome prescription leaves me cold.Therefore it seemed to me to satisfy prescription first before moving to the expert report on professional negligence makes economic sense.
I understand there is no mandatory pre protocol operating in Scotland and the indemnity insurer name beginning with a Z ,an upmarket banking city and the financial capital of Switzerland has no American connections that I am aware.

From what has been said regarding prescription and to satisfy that I do not need an expert report to prove something is far more likely to be true than false.

Z case on prescription is predicated on that I with reasonable diligence should have been aware of a minor slope from date of completion as house was occupied and requiring me to produce evidence that I was unaware of such damage and the damage occurred during the last 5 years.This is in addition to providing an expert report confirming professional negligence.

My claim was not about effecting minor repairs to rectify slopes,but repairing the underlying defect where the substructure was built without dwarf walls to support the structural floor timbers and where deterioration was bound and did occur.Also it was later found that the roof support structure was insufficient and required roof strengthening measures including fitment of a steel beam.I also found out what was built did not confirm to building regulations and was not an approved construction by building standards who required me to rectify.Building Standards also advised that the Architect had falsified the Completion Certificate and therefore statutory consent gained was not appropriate..

In summary I need not do anything further on the prescription matter as I have provided insurer with evidence that I was unaware of the slope and can produce witnesses who can also state this.Therefore I must bite the bullet make a decision whether or not to pay for this expert report.
The question of whether during lockdown a suitable expert report can be provided and also that repairs have been completed is another issue even with pictorial evidence.

At present I have a Consultant Engineer report in respect of the floor but should get this updated by the structural engineer to reflect the damaged roof.

I would be grateful if you could read this and correct any assumptions I have made.

[des8]

Just remember (as R0b pointed out) Zurich are not your friends. They insure the architect you are thinking of suing and so they will advise you that you have no claim, whether or not that is true.

You state; ".Building Standards also advised that the Architect had falsified the Completion Certificate and therefore statutory consent gained was not appropriate."
That comment is pretty damning, do you have it in writing? has it been disclosed to Zurich?
..
I understand the Ordinary Cause procedure used in Scottish Courts is quite complex and so hesitate to advise diy
Whilst one solicitor might think your chances are less than 50%, have you considered seeking a CFA with others?

[ibrox1]

Hi Des

To put some kind of context into what happened on the build,the Architect admitted allowing the builder to change design of the substructure which in conjunction with build of dwarf walls supports the floor timbers above..At that point the Architect had 2 choices of either telling the builder this was unacceptable and work to the approved by building standards drawings or himself drawing up plans for the new design suitable for the builder to use in construction and applying for an amendment to building warrant and having these approved by building standards.,The Architect did not take up any of these options and allowed the builder to construct and did not inspect to ensure the build met building regulations as per his terms of engagement.After the substructure was built with the latent defect the floor was laid on top of the substructure.The substructure is an integral part of the build and key inspection stage as stated by a consulting engineer and takes up entire coverage of the footprint of the extension and was uncovered for inspection for a considerable period of time.
What the Architect did was when he applied for the completion certificate he signed the form as if the build was completed to approved drawings and was satisfactorily built according to building regulations.It was none of those as, in respect of floors no dwarf walls built to support the timbers above, and seriously the build was occupied with a serious latent defect to roof which needed immediate strengthening.

This is what Building Standards have said;

-When asked if the agent (Architect) when he became aware of change of design should have applied for an amendment to building warrant at time of construction."It is the responsibility of the applicant to ensure an amendment to warrant is applied for.However when an agent is employed they are there to provide expert advice and direction and it is reasonable to expect the expert person to have made the necessary arrangements to ensure the amendment to building warrant was applied for " Also separately "where a building standards officer is made aware of significant changes to that of the original warrant detail,an amendment to building warrant will be required.The alteration from a concrete floor to a timber floor is a significant alteration and as such should be covered by a building warrant"

The requirement for an amendment to building warrant is also pertinent to the roof defect,as the change of roof detail which required strengthening and fitment of a steel beam also constitutes a significant change from the original warrant detail.The latent roof defect was undiscovered when Building standards made his statement,but I had to apply for an amendment to building warrant in respect of roof after commencing remedial work to the floor.

When I asked Building Standards what I as an applicant need to do in terms of application to to building warrant to resolve the floor issue(Roof defect unknown at that time)

"Where the proposed works include recognised changes to a building warrant shall be required.As the detail provided in the original warrant was not accurate the proposed works are a change from accepted construction.Further to this where the construction is not in conformance with the accepted warrant detail then the applicant/builder/agent may be guilty of an offence under the building (Scotland) Act 2003.An amendment for warrant cannot be submitted for an application where a complete certificate application has been accepted.Accordingly,a fresh application should be completed to cover these works".It is an offence to knowingly submit a completion certificate that is not accurate"
The Architect has admitted he knew of the change in construction but submitted the completion application as if the actual build matched the approved drawings/building warrant.

These failures by the Architect fully illustrates that the Architect put me in a position,where the the build did not match the approved warrant for both floor and roof,and Building Standards also advise"they would have taken enforcement action against me to ensure my build complied with the building (Scotland) Act 2003.Therefore I had to instigate repairs and deterioration in floor became obvious and I had water ingress.

Zurich are aware of all of this,and I hope my explanation covers the questions you asked.

It is my opinion which is shared that I would get a favourable expert witness report on Professional Negligence,however,how can I prove that it is far more likely that I was unaware with reasonable diligence of a 30m slope max (about an inch in total over 10 years).and deflection in ceilings.
If I can do that this would give me confidence to fund an expert witness report which I`ve been told both by Zurich and my solicitor when they represented me as needed.I spoke with another solicitor and it would go nowhere without expert report.

Sorry I don`t understand what a CFA with others means.?
Any other avenues for someone to represent me.?

[pt2537]

Hi Des

To put some kind of context into what happened on the build,the Architect admitted allowing the builder to change design of the substructure which in conjunction with build of dwarf walls supports the floor timbers above..At that point the Architect had 2 choices of either telling the builder this was unacceptable and work to the approved by building standards drawings or himself drawing up plans for the new design suitable for the builder to use in construction and applying for an amendment to building warrant and having these approved by building standards.,The Architect did not take up any of these options and allowed the builder to construct and did not inspect to ensure the build met building regulations as per his terms of engagement.After the substructure was built with the latent defect the floor was laid on top of the substructure.The substructure is an integral part of the build and key inspection stage as stated by a consulting engineer and takes up entire coverage of the footprint of the extension and was uncovered for inspection for a considerable period of time.
What the Architect did was when he applied for the completion certificate he signed the form as if the build was completed to approved drawings and was satisfactorily built according to building regulations.It was none of those as, in respect of floors no dwarf walls built to support the timbers above, and seriously the build was occupied with a serious latent defect to roof which needed immediate strengthening.

This is what Building Standards have said;

-When asked if the agent (Architect) when he became aware of change of design should have applied for an amendment to building warrant at time of construction."It is the responsibility of the applicant to ensure an amendment to warrant is applied for.However when an agent is employed they are there to provide expert advice and direction and it is reasonable to expect the expert person to have made the necessary arrangements to ensure the amendment to building warrant was applied for " Also separately "where a building standards officer is made aware of significant changes to that of the original warrant detail,an amendment to building warrant will be required.The alteration from a concrete floor to a timber floor is a significant alteration and as such should be covered by a building warrant"

The requirement for an amendment to building warrant is also pertinent to the roof defect,as the change of roof detail which required strengthening and fitment of a steel beam also constitutes a significant change from the original warrant detail.The latent roof defect was undiscovered when Building standards made his statement,but I had to apply for an amendment to building warrant in respect of roof after commencing remedial work to the floor.

When I asked Building Standards what I as an applicant need to do in terms of application to to building warrant to resolve the floor issue(Roof defect unknown at that time)

"Where the proposed works include recognised changes to a building warrant shall be required.As the detail provided in the original warrant was not accurate the proposed works are a change from accepted construction.Further to this where the construction is not in conformance with the accepted warrant detail then the applicant/builder/agent may be guilty of an offence under the building (Scotland) Act 2003.An amendment for warrant cannot be submitted for an application where a complete certificate application has been accepted.Accordingly,a fresh application should be completed to cover these works".It is an offence to knowingly submit a completion certificate that is not accurate"
The Architect has admitted he knew of the change in construction but submitted the completion application as if the actual build matched the approved drawings/building warrant.

These failures by the Architect fully illustrates that the Architect put me in a position,where the the build did not match the approved warrant for both floor and roof,and Building Standards also advise"they would have taken enforcement action against me to ensure my build complied with the building (Scotland) Act 2003.Therefore I had to instigate repairs and deterioration in floor became obvious and I had water ingress.

Zurich are aware of all of this,and I hope my explanation covers the questions you asked.

It is my opinion which is shared that I would get a favourable expert witness report on Professional Negligence,however,how can I prove that it is far more likely that I was unaware with reasonable diligence of a 30m slope max (about an inch in total over 10 years).and deflection in ceilings.
If I can do that this would give me confidence to fund an expert witness report which I`ve been told both by Zurich and my solicitor when they represented me as needed.I spoke with another solicitor and it would go nowhere without expert report.

Sorry I don`t understand what a CFA with others means.?
Any other avenues for someone to represent me.?

Conditional fee agreement or no win no fee as it is often called

[des8]

A CFA is a Conditional Fee Agreement (no win no fee) you have with a solicitor.
It is a common way of funding litigation.

From the details you have supplied you seem to have a good arguable case for a professional negligence claim against the architect, but you might have a problem with prescription.
How are you supposed to note a 1" slope when a builder had to use a laser?
Ignore what Zurich and their solicitors say. They are not going to admit you have a winnable case and will do all they can to get you to park the case.

Your own legal expenses insurers appointed your solicitor?
You should know that legal expense insurers have panels of solicitors who are not appointed on the basis of their specialities, but rather their costs.
You need a solicitor who is au fait with construction disputes. Was your second opinion solicitor a specialist?
Find one, have a fixed price consultation to see what they think of your case, and see what they can offer by way of funding your claim.
It might be that you will have to obtain that report

[ibrox1]

Hi Des

Thanks for input.
Yup the Solicitor was obtained through legal expenses but the case was shelved as it no longer attracted funding without the expert report.The solicitors specialise in contentious litigation in the areas of personal injury,employment law and dispute resolution.
Would you consider that to be a suitable specialist solicitor?

I note it does not mention Professional Negligence.However,if I obtain a favourable expert report at least I would hopefully be able to reinstate their services to take to court unless they withdraw again which I would worry about and I would be committed after forking out 4.5k on a report.

I take your point about how can I be expected to be aware of a slope when the builder used a laser but would worry about Zurich or indeed any expert if asked about development of slopes indicating normally slopes would be apparent within the early years following completion of build.I know this didn`t occur and can produce witnesses to testify to that but how would a court view that?.In my circumstances my wife especially and myself were providing care for a dementia sufferer and simultaneously was aware they wanted to maintain independent lives so going into their home as it was and searching for minor defects was not practical and wouldn`t be anything a normal layperson would do.

If you consider my solicitor as unsuitable due to lack of specialism where would I find this specialist solicitor who could offer support in funding.?
I have looked previously for a no win no fee solicitor but was unable to locate one in Glasgow.
Any ideas to find one.?