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Jo C.
Jo C., Barrister
Category: Law
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Experience:  Over 5 years in practice
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Hello. A Party Wall Surveyor is bringing a claim against

Customer Question

Hello.

A Party Wall Surveyor is bringing a claim against me for an non-payment of an invoice for his services with respect to a damaged garden wall between my property and my neighbour's. My neighbour had refused to discuss the matter with me himself, so I had engaged the surveyor to deal with the matter impartially in accordance with the Party Wall etc Act 1996 (PWA). I hoped to minimise the risk of provoking a dispute. The surveyor's Letter of Appointment stipulates that he should have followed PWA procedure but he failed to do so. The course of action he took provoked animosity between my neighbour and me, and proceedings ground to a halt without a satisfactory solution to the damaged wall being achieved. The surveyor terminated his involvement, but admitted that following PWA procedure would have been the best way of handling the matter. He has sent me an invoice - with my neighbours' names on it rather than mine - which I am contesting.

Given the animosity the surveyor provoked between my neighbour and me, I am concerned that he may be able to select extracts from email correspondence between himself and my neighbour as evidence to support his claim. However, within that correspondence there may also be evidence to support my defence. What is my position with regard to that communication? I assume that I can't request access to it, but if the surveyor intends to submitted extracts or refer to communication he had with my neighbour, from it can I argue that I should be able to examine it in full?

In the invoice there is reference a letter the surveyor wrote to my neighbour, and the time taken to write that letter has contributed to the fee the surveyor is claiming. Am I entitled to request a copy of that letter from him.

I hope you can help.

Thank you

Roger Armstrong
Submitted: 3 years ago.
Category: Law
Expert:  Alex J. replied 3 years ago.
Hi

Thank you for your question and welcome to Just Answer.

How much is the invoice? Has he brought the claim in the county court?

Kind regards

AJ
Customer: replied 3 years ago.

Hello AJ


Thanks for replying.


 


The surveyor has submitted a claim to the County Court. I filed a defence, and have received a Notice of Proposed Allocation to the Small Claims Track.


 


The surveyor's invoice is for £382.50 + Vat (total £459). He calculated this from 9 hours claimed work at £85/hr + Vat, which he has split equally between my neighbour and me. The 9 hours is itemised on a Time Log. I'm interested in the entries he has for 02/11/12, 13/01/13 and 13/02/13.


 


The entry for 02/11/12 is "Received instructions. Letter to Building Owner (BO), Mr Armstrong and Mr and Mrs ***, [my neighbours] Adjoining Owners (AO)". For this 40 minutes is entered on the Time Log. The entry for 13/01/13 is "Email correspondence with BO & AO" for which 50 minutes is entered, and the entry for 13/02/13 is "Email correspondence with BO & AO" for which 1 hour 10 minutes is entered.


 


These three items on the Time Log occupied the surveyor for 2 hours 40 minutes, so their contribution to the cost of the invoice I have is £113. I am contesting the invoice on several grounds including incorrect name (and non-existent address) on the invoice, breach of terms of the Letter of Appointment, and failure to provide the service for which I engaged the surveyor. I would like all relevant evidence to be made available to the Court. Should this include all items listed on the Time Log? If so, would I be entitled to request, in advance, copies of the letter the surveyor wrote to my neighbour of 02/11/12 and the email communication referred to in the Time Log entries for 13/01/13 and 13/02/13?


 


I hope this is the information you need.


 


Thank you for your interest.


 


Roger Armstrong

Expert:  Alex J. replied 3 years ago.
Hi

Thank you.

It sounds to me like you have a claim for professional negligence anyway. Really what you should have done is paid under protest and then sought to sue for professional negligence.

Your options now are to file a counter claim and see if you can settle this before it goes further. Can you calculate how much loss you have suffered?

Kind regards

AJ
Customer: replied 3 years ago.

Hello,


I'm not sure what you mean. I've not suffered any loss because I haven't paid the surveyor's invoice, and because I spotted that he was incompetent before I committed myself to outlaying any money for repair work. If I'd paid under the invoice protest I'd have had to make a claim myself, and the best I could have achieved would have been to recover the money I paid under protest.


 


Given that I haven't lost any money, what grounds would I have for filing a counter claim?


 


Are you able to answer the questions I asked about the Time Log entries?


 


Kind regards


 


Roger Armstrong

Expert:  Alex J. replied 3 years ago.
Hi

Thank you.

Firstly dealing with the time logs and correspondence if this claim got to the disclosure stage then the claimant would be legally obliged to disclose everything relevant to his case. This would include the time logs and any correspondence.

Surveyors have a code of conduct and I am almost certain that the incorrect name on the invoice and breach of the letter of appointment would be a breach of the code of conduct. Have you considered making a complaint to RCIS?

You have suffered loss because you now have to pay the whole invoice instead of half of it - also has the dispute been resolved with the neighbour? Will you have to appoint a new surveyor?

Kind regards

AJ

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