Received a Notice of Intent to Apply for Adjudication

[Donny462]

comments in red
Good luck with that.
I don't guarantee it will work, or there might be other actions you could take, but it is the way I would be going

Thank you Des8 again for your help...as I`ve said before, thank you really doesn`t seem enough, I am so grateful to you

Could I just ask a couple more questions please?.

Firstly, what do you mean by send "read receipt" ?

Without Legal Beagles and wonderful people like you, I think a great deal of us would be in trouble legally speaking .

With regards to the surveyor, had I not been taken into hospital on and off over the last year, we would have lodged a formal complaint against him with the RICS for his negligence and professional misconduct, I had gone as far as emailing the RICS for a form (the website option for downloading the form wasn`t working), and they emailed me back with the form before this current action was being taken by the surveyor. I now intend to go ahead with the complaint, it is worth informing the adjudicator that I will be making a complaint against the surveyor? Or is that a bad idea :/

Thank you and sorry for taking so much of your time .

[des8]

read receipt is a way of knowing that your email has been received and read.
Google "read receipt +your email system eg gmail/hotmail etc

I shouldn't bother telling adjudicator about your complaint to RICS, he'll think you are grabbing at straws and possibly irk hoim even more

[Donny462]

Thank you des8 , will do that, and ok, I won't tell the adjudicator about my complaint. Good advice as always

[Donny462]

Hi des8,
Would you please just look at my letter below to the surveyor rescinding the contract and see if you think it is ok? Many thanks.


Dear Mr XXXX

Having taken advice on the `contract` between ourselves, I am rescinding that contract as per the Misrepresentation Act 1967, on the grounds that after us expressing our concerns regarding your charges, and expressing you to quite clearly that we could not afford to pay them, you assured us on a number of occasions, (both written and orally), that we would not have to pay your charges, and that the Coal Authority were obliged to pay them.

You had by your own admission dealt with many similar cases, so we relied on your assurances as an expert with lots of experience. These numerous assurances induced us to enter into the a contract with you, but these statements made by you being false are evidence of negligent misrepresentation as per s.1 of the Misrepresentation Act 1967, and I am entitled to rescind the contract.

Yours sincerely

[des8]

Fine, I would just amend the last sentence by deleting the words in red:
"....... but these statements made by you being false are evidence of negligent misrepresentation as per s.1 of the Misrepresentation Act 1967......"

[Donny462]

des8 , brilliant, thank you very much

[Donny462]

Hi des8, I will be sending the email and letter to the surveyor this evening and so will also be copying the adjudicator in it. Do I ask the adjudicator to suspend the adjudication,....I'm not sure how to word it to him to annoy him the least so would be really grateful of your advice, yet again . Thank you.

[des8]

Just say to the adjudicator that he may wish to suspend his consideration in view of your rescission.

[Donny462]

Thank you very much des8

[Donny462]

des8 , can I ask a question please? I am currently preparing the submissions I have to put in to the adjudicator by 7th October.

The surveyor was initially engaged to do a report as specified by the arbitrator in the Final Award of an arbitration...the surveyor is saying that as the Final Award had been made, he cannot have been doing his report as part of an arbitration, and therefore the adjudicator has jurisdiction. My point is that the arbitrator asked for the report to be done as part of his Final Award in the arbitration, therefore , the report must be accepted as part of the arbitration, surely? Please can you let me have your thoughts on this? Thank you .

[des8]

To be clear:
Are you saying one of the terms of the Final Award when issued required a survey report?

[Donny462]

To be clear:
Are you saying one of the terms of the Final Award when issued required a survey report?

Yes, that`s correct. The arbitrator said he wasn`t qualified as a Structural Engineer and the property needed a report doing by a Structural Engineer to determine whether it was coal mining subsidence which had caused the damage. as such, he ordered that a structural Engineers report be gained. I`m sorry, I`ve just realised that I keep calling the `expert` a surveyor, he is actually a structural engineer.

[des8]

I can't understand why the arbitrator should order a structural engineer's report after issuing his final award, unless he was prepared to issue an supplementary award.
If the report was ordered by and submitted to the arbitrator, I would agree the report was part of the arbitration process.

[Donny462]

I can't understand why the arbitrator should order a structural engineer's report after issuing his final award, unless he was prepared to issue an supplementary award.
If the report was ordered by and submitted to the arbitrator, I would agree the report was part of the arbitration process.

I`m afraid that`s exactly what he did. The report was then submitted to the arbitrator, albeit the CA then wouldn`t accept it as they didn`t consider our expert` to be impartial as he had already gone against them several times apparently, so the CA then appointed another `expert`, whose report has been adhered to, and in fact works started this week. Our `expert` told us the CA would have to accept his report...(I actually have it in writing from him), but the CA didn`t, and wouldn`t accept it. It`s all such a mess, and I feel like I have been surrounded by idiots in this arbitration :/

[Donny462]

This is the section of his award dealing with the matter in question:-

90. Whilst in my view some of the cracking in the house is likely to be cosmetic I am concerned that some of it may have been caused by movement and that given the Respondent has not in my view conclusively proved that the damage has not been caused by coal mining it is possible that it has.
91. This puts me in a difficult position because I am acting as arbitrator and not expert and therefore, in the absence of any report by a structural engineer or surveyor, I am in no position to assess if the damage has been caused by mining subsidence, the work that might be required to rectify the damage, nor to specify what should be done to rectify any damage. However in my view the Respondent has not proved the damage is not caused by mining subsidence. Page 22 of 23
92. Therefore, I order that the Respondent carries out the following: (1) Agrees with the Claimant a suitable independent structural expert to be appointed within 28 days (excluding bank holidays) of the date of this award. (2) Should the Parties be unable to agree a suitable expert an application should be made to the President of the Institute of Structural Engineers for them to make the nomination which will be binding on the Parties. (3) Pays for the independent structural expert to assess the house and make recommendations for the rectification and repair of any damage the expert determines should be carried out. That assessment is to be made within 28 days of the appointment of the expert. (4) Both parties are to be bound by the expert’s decision regarding the nature and extent of remedial works to the house. (5) The Respondent will carry out at its own expense the rectification and repairs the independent expert decides has been caused to the house by coal mining subsidence. The Respondent will not be liable for any defects or damage the independent expert decides has not been caused by coal mining subsidence. Costs (6) Section 5(1)(a) of The Coal Mining Subsidence (Arbi