Civil or criminal - Insurance company or police?

[Guest]

Re: Civil or criminal - Insurance company or police?

It is unfortunate of I misunderstood. He made the following declaration: In my ignorance, I accepted this at face value. I am certainly learning from this forum/thread and I am appreciative of the benefit of your expertise.
STATEMENT OF COMPLIANCE
I understand that my overriding duty is to the court and I have complied with that duty. I am aware of the requirements of CPR Part 35, its Practice Direction and the Protocols for Instruction of Experts to give Evidence in Civil Claims.

[stevemLS]

Re: Civil or criminal - Insurance company or police?

Hmm, that sounds as though your Expert doesn't quite know what he is doing, certainly so far as this is concerned.

[Guest]

Re: Civil or criminal - Insurance company or police?

Are you able/willing to expand?

[stevemLS]

Re: Civil or criminal - Insurance company or police?

Well, if I have understood correctly there is no current litigation.

You have solely instructed this expert to provide an opinion, very sensibly.

An Expert Witness within the CPR Part 35 is

35.2

(1) A reference to an ‘expert’ in this Part is a reference to a person who has been instructed to give or prepare expert evidence for the purpose of proceedings.

That can't possibly be satisfied if there are no proceedings.

You may not instruct an Expert without the permission of the court


35.4

(1) No party may call an expert or put in evidence an expert’s report without the court’s permission.

So, whilst this report may well be persuasive, it will not be capable of being adduced as "Expert" evidence in the event that you end up in litigation.

It is odd, then, that he has included the statement that an Expert is required to make for the purposes of proceedings.

I also think you may well run into limitation issues if you attempt to bring proceedings.

[des8]

Re: Civil or criminal - Insurance company or police?

I also think you may well run into limitation issues if you attempt to bring proceedings.

As the "experts" report was only received earlier this year could it not be argued by OP that Limitation Act 1980 Sec 14A applies?

Also it seems that building works were continuing through 2010/2011 so still in time for a claim in tort of negligence anyway, no?

[stevemLS]

Re: Civil or criminal - Insurance company or police?

As the "experts" report was only received earlier this year could it not be argued by OP that Limitation Act 1980 Sec 14A applies?

Also it seems that building works were continuing through 2010/2011 so still in time for a claim in tort of negligence anyway, no?

Possibly.

The latter point I think is good, the former, not. OP clearly thought he had a cause of action in 2010 when the surveyor was instructed. It is not the other side's fault that the report was not received until September. The responsibility for delay in gathering evidence is, in my view, OP's.

[des8]

Re: Civil or criminal - Insurance company or police?

Hmm!
up until the report is available could one not argue that although suspicious, there was no knowledge?
Hence starting date for "knowledge required for bringing an action" is receipt of report confirming one's suspicions.
Without the report the OP would not have sufficient knowledge to initiate a claim in the courts

[stevemLS]

Re: Civil or criminal - Insurance company or police?

Well there we disagree, the test is known or ought to have known.

In my view, that is satisfied at the point the surveyor is instructed, and there is no excuse for allowing it to take 5 years to produce a report.

[des8]

Re: Civil or criminal - Insurance company or police?

Hey, I'm not disagreeing but trying to discuss a point which is the subject of a number of cases.
On reflection, although we are discussing the point at which knowledge is gained, I doubt Limitation Act will be of concern here.
The op was concerned enough to complain to the ombudsmen, who basically turned round and said "prove it".
To obtain the knowledge to do this she instructed a surveyor.
Whilst in this situation she was conducting a quasi legal complaint and she would not have been expected to initiate court proceedings.
Also Zurich have not yet finished dealing with the matter (post 13) so have not given a final decision.
Doesn't the clock start ticking when the defending party says "That's it, Finished" 'cos up until then they have the opportunity to make good?

[stevemLS]

Re: Civil or criminal - Insurance company or police?

Sorry [MENTION=39710]des8[/MENTION] happy to discuss and I think the limitation point is arguable either way, which is why I said it may be an issue.

My own view is that the point of instruction of a surveyor is the point of "knowledge".

I still don't understand the delay between instruction and report receipt.

[Guest]

Re: Civil or criminal - Insurance company or police?

That it took so long to obtain the report also worries me.

But - at the time I instructed the surveyor, I had no idea whatsoever that it would turn out that various Loss Assessors appointed by Zurich as well as the builders, pilers, and others appointed by a Loss Assessor on Zurich's behalf would have all failed to conduct a simple drains test that would have identified that water was running to ground under my garage. Even now - only last weekend in fact - I realised that I have evidence of another extremely serious matter about which to complain to Zurich.

The Report and accompanying Appendix are extremely detailed and take account of events from 1982 (when the extension was built) to the present date. The surveyor could not have compiled this on his own without significant input and evidence from me. I have had to plough through years of correspondence and photographs - not an excuse I know, but no mean feat given that I suffer from a neurological disease which often impedes brain activity. It may even be that I have grounds for complaint about the surveyor. Clearly I shall have to consult solicitors but having come into possession of the report, I have done exactly what the Financial Ombudsman Service required - ie send it to them and to Zurich.

[stevemLS]

Re: Civil or criminal - Insurance company or police?

With the greatest of sympathy to your medical condition it is unlikely to be re;evant but for a few days.

I think the instruction of surveyors would be taken as the date of knowledge.

Is it possible to post up the report? I am wondering on your behalf whether the Latent Damage Act would assist?

[des8]

Re: Civil or criminal - Insurance company or police?

I do think all this talk of court proceedings is a bit premature.
Zurich are still looking at the matter, and until they decide whether or not to accept liability (either for a poor job or a new incident) and whether or not to reinstate the property, it is not feasible to decide which way to proceed.
To begin court proceedings now would invite the response that op is jumping the gun by not awaiting the final decision by the ombudsman and not allowing Zurich to finalise their response.

[Guest]

Re: Civil or criminal - Insurance company or police?

It may or may not be relevant but I instructed a surveyor because I (a housewife with no knowledge or training in building or subsidence matters and without guidance or advice from anyone qualified in these matters) was concerned that the piling may not have rectified the (slight) detachment from the main house of a garage/utility room extension.

What came to light during investigation by the surveyor is that none of those related to Zurich's processing of my claim and the intended correction had in fact established the cause of subsidence. The surveyor proved the cause was that water from a drain pipe under the garage was running to ground and had been since 1999 (when I made the subsidence claim) or possibly earlier. Zurich accepted the surveyor's evidence and paid for the drain to be re-routed.

The surveyors report (which I received in mid September 2015) identifies "the bodging of work to the garage which even now is not fit for purpose" and goes on to identify various structural faults, but omitted to disclose that this is not the garage that existed before piling in 2007 but that rebuilt in 2009 as part of the remedial works. But for the surveyor's omission (I have invited him to, at his own expense, correct the omission), I would not have known that Zurich's subsidence claims manager ( a structural engineer with substantial qualifications) must have known about this damage when in 2009 he instructed another building firm to remove the garage's damp course, raise the floor level by 4", raise the height of the garden steps at the side of the garage by 4" and other actions intended to raise all grounds at the front and side of my house by 4" to meet the increased height of the garage floor. So Zurich knew that the remedial work to the garage - that was supposed to restore my property to the condition it was in before the subsidence claim - was substandard and they intended to cover up their deficiencies in the way I have described. This would have had and has had severe consequences for me - not least that had I attempted to sell my property, the damage to my garage and roof would have been immediately noticeable to any surveyor instructed by prospective purchasers (the raised floor, the misaligned brickwork, the garage door being out of square, the roof having been twisted to fit and letting in water etc) - and in fact an email from the surveyor writing the report actually said that my property is unsellable in its present condition.

So whilst you legal bods may argue about my "date of knowledge" and whether any claim I may have is statute barred, I absolutely did not know (until last weekend in fact) that Zurich's Subsidence Claims Manager (now Global Head of Catastrophe claims) and their builder have known since the garage was rebuilt in early 2009 that it was not fit for purpose - hence my question about whether this is a matter for the insurance company or police (Criminal Damage?)

[Guest]

Re: Civil or criminal - Insurance company or police?

Please see post 16.

When I have found how/where to post, I will gladly post both the report and the accompanying Appendix.