Mediation

[Pezza54]

The Construction and Engineering Disputes Protocol applies to your claim, including claims of professional negligence against architects, engineers and quantity surveyors.
Under this protocol, the following steps must be taken:
Letter of Claim
Defendant's Acknowledgement
Defendant's Letter of Response
Claimant's Response to Counterclaim
Pre-Action Meeting

So yes, the architect is right to request a Letter of Claim before mediation

For effective mediation to take place, the mediator will want to know details of the claim and the defendant's response

[Smither53]

atticus - thanks for the response that very helpful - i am novice to this but keen to learn and look at what I can do to get what I can back - it is a a mindfield for someone like myself and without spending £1000's with a legal firm am very much in open water trying to gather as much information on best how to proceed going forward.

Thank you

[Pezza54]

I am concerned to read that the appointment of a contract administrator to oversee construction work, authorise payments etc was against your wishes
Did your fee agreement with the architect include any post contract services?

[atticus]

The first thing you need to do is to have clarity on what it is that was negligent. An exercise for you: work out how to say as concisely as you can what this professional did (or did not) do that he should not (or should) have done.

[Smither53]

Pezza54 - we informed them that we did not wish to have a CA and would deal with payments ourselves

However the contract that we relied on to protected us, as thats how it was sold to us - should any issues arrise we later found out required one (without our knowleged) and would have protected us from paying the builder, which I was never aware off until after the failed project came to light - it was never mentioned that we required a CA for the contract being supplied.

I had chased on more than one occasion for a copy of the contract and this was ignored - as was it before the contract was issued I had asked for some information on why to use a CA, which was also ignored.

atticus - I will make that my starting point thank you.

[atticus]

NB that may be a number of things.

[Pezza54]

Was it the JCT Minor Works Form of Building Contract?
Did you sign the contract with the builder?

[Smither53]

Pezza54 - yes JCT Minor Works Form - didnt sign at same time as builder no - it was already signed by them, then the arcitect took it away in case of any problems - but failed to inform us that a CA was rquired for it - it was in my possesion for appox 10 mins if that, guided by Arc to where to sign it.

[Pezza54]

The architect's lawyer is likely to argue that the minor works contract is short and could have been read in 10 minutes. The CA is mentioned in the contract and you should have been aware that a CA was required to administer the contract.
An architect can administer a building contract. Did you think the architect was going to carry out this post contract work?
In the fee agreement with the architect were any post contract services stated?
Did the architect visit your project whilst it was being built on a regular basis?

[Smither53]

Pezza54 I beg to differ on that there is no way that the contract could have been read in 10 mins and understood by myself - and why would I be looking for the fact that it required a CA when they were aware we did not want one - we trusted their professional expertise to guide us

We were never made awared that the CA was required, in fact they cross out bits relatiing to it, but signed it also.

No we never agreed for them to carry out the works, no visits were made during the build - never even gave us a run down or price for that service dispite asking for that - but did later inform us that the contract was supplied when they were lead to believe they were to be retained as the CA - dispite us never informing them that this was the case.

No post services stated, but they did state that they would advise on the contracter quote, which they never had a coy of but did recommened them to us.

[Pezza54]

The CA has a crucial role in any building contract.
Have I read your last post right? The architect offered to be CA but you declined?
JCT Minor Works holds back 5% of payments for work carried out until completion, and then 2.5% for a further 3 months in case any defects appear.
Did you just pay what the contractor asked and did you pay 100% when the contractor claimed he had completed the work?

[Smither53]

Pezza54 They stated this

"Assume the contract administration, site visit /payments. would be carried out by yourself, this is something I can offer too if you wish."

To which i stated we did not want a CA, but did ask for the benefits and cost of having one, which never was answered.

This was a few months before supplying the JCT - which requires a CA - so why supply something that requires one when they were aware we didnt want one? a JCT homeowners would have been more apprioated i beleive.

When it was supplied it was never mentioned we required a CA for this type of contract.

The contractor was taking the money regardless of the JCT as thats what the payment schdeual was every 2 weeks or so - but never completed the work - i know against my better judgement I paid because we had the JCT in place which was hidden away with the architect and never given when requested.

I know its a right mess,

[Pezza54]

It does sound a mess but I'm not sure it has been caused by the architect.
The contractor may have taken advantage of you when he realised the contract wasn't being administered in accordance with the contract.
Did you pay him in full before you became aware that he hadn't finished the work and had disappeared?

[Smither53]

Pezza54
Yes is a mess!

I do beleive the architect is partly to blame in all this

- as withheld the contract when requested a copy of it
- worked along side buidler on other projects
- recommened them to several others who had failed builds with - informed me that we were first client that worked with, which isnt the case.
- didnt inform us that we needed a CA for the JCT supplied, has since told me that when i signed the contract we told him we didnt want a contract - not ture
- told us contract would protect us
- was aware payments were being made.

Do agree with that the builder did take adventage yes, - pretty much paid in full yes as had the JCT which was there to protect us, but cleary didnt - had I not had the contract I would have not paid them, but didnt want to break my end of the contract.

[Pezza54]

A payment schedule every 2 weeks is not a good idea. The client is reliant on the contractor pricing the work carried out fairly and reasonably and based on the contract sum. If the contractor falls behind programme then it is easy to overpay the builder. The CA would check the contractor's valuation
Better to have agreed stage payments before the contract is signed. When the builder completes a stage he gets paid for that stage