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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25995
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I am now in dispute with a Fensa Registered Window Fitter.

Resolved Question:

I am now in dispute with a Fensa Registered Window Fitter. I have provided the fitter with an independent report outlining numerous issues which require remedying before any payment will be made.
The fitter has never provided a contract and has now instructed a solicitor seeking full payment. The solicitor has stated I MUST ADHERE to "the pre-action protocol for construction and engineering disputes to The Civil Procedure Rules".
In simple english what are these "rules" ? I have provided a full and comprehensive independent report to which no action has been taken by the fitter and the solicitor has stated is inadmissible in court. What do I do please ?
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience. May I ask how much is being claimed please?When was the contract agreed roughly?Was the agrement for the work made at your home or elsewhere - I appreciate there is no formal contract?
Customer: replied 2 years ago.

Amount being claimed £5,800

NO contract ever issued !!

Expert:  Joshua replied 2 years ago.
Thank you for the above. I appreciate there is no formal contract in this case. However there is an agreement for the work - namely you presumably agreed an amount and what work would be carried out. May I ask when that agreement (whether it was verbal or by email or otherwise) was made and whether it was made at your home or elsewhere?Did you agree any terms in writing - eg. by exchange of email or written estimate or quotation?
Customer: replied 2 years ago.

A verbal conversation was held at my home with a subsequent quotation (very brief and addressed to the wrong house number !!) provided.

Expert:  Joshua replied 2 years ago.
Thank you - could you tell me the approximate date this took place and when you accepted the quote?
Customer: replied 2 years ago.

The conversation was held early December 2013 and the quotation was issued 12/12/2013.

Expert:  Joshua replied 2 years ago.
Thank you very much. the reason I asked the above questions is that from what you say, the arrangement may have been covered by the Doorstep Selling Regulations which required that the contractor provides you with a cooling off period to cancel the contract and statutory information which is required to give. if he failed to do so, the above regulations (which have now been replaced) provided that you had a 12 month period from the date you entered into the contract to cancel for any reason whatsoever and under such circumstances, the contractor would not be entitled to charge. Unfortunately, given the date the agreement was entered into the 12 month cancellation window has long expired.however, as you will be well aware, the contractor remains liable to undertake work which is fit for purpose, of reasonable standards and skill and supply materials which are of satisfactory and reasonable quality under the provisions of the supply of goods and services act. From what you say, I would assume that he has failed to do so and as such, this would likely form the basis of your defence to any claim for the money on the grounds that the contractor is in breach of contract under these implied terms.I would take issue with the solicitors contention that you must use the above pre action protocol. If the window fitter was replacing windows then this is not a construction contract. the above protocol is for use in contracts involving the construction of commercial or residential premises. If the window fitter was retained to fit windows in a newly constructed property then the protocol will apply but if he was replacing windows in an established property the protocol does not apply. Please would you let me know if he was retained as part of the construction of the property and I will expand further on this though.in the assumption that the protocol does not apply, because the fitter was simply replacing windows soon established property, then given the amount in question, it would proceed under a small claims route. There are no special rules of evidence in the Small Claims Court but in order to use an experts report, you need to obtain the permission from the court. You can only do this once proceedings are undertaken. in a case such as this, I would expect the court to consent to the use of an experts report as it would appear to be necessary in order to resolve technical arguments between you and the contractor. In terms of the protocol, if the protocol does apply because the property was under construction or if you simply wish to know the details of the protocol anyway, please kindly reply back to me and I will set out the terms of the protocol but I will refrain fro doing so for now as it is quite long winded and is not necessary for you to use unless the above applies. I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me I'd be very grateful
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Customer: replied 2 years ago.

Thank you very much for your reply. The windows being fitted were merely "replacement windows" and so from your information the "protocol" does not apply.

One final question. I am being chased for monies in respect of materials and work which are sub-standard and endorsed via a report from an independent source.

How do I best respond to the Fitters solicitor and at what point am I entitled to have the issues sorted via an alternate provider should the existing fitter not be willing to do so.?

Expert:  Joshua replied 2 years ago.
On that basis I agree with your assessment. you may wish to respond to the solicitor drawing his attention to the fact that the windows were merely replacement windows and were not fitted under a construction contract and therefore he may wish to reconsider his position. In addition, you may wish to remind the solicitor of his obligations not to take unfair advantage of unrepresented parties (and that you are concerned that his contentions to date are either negligent or deliberate construed to attempt to unfairly prejudice your position. You may ask him to take more care with future communications failing which you may have to consider a complaint to the SRA for a breach of the solicitors conduct code on the above basis.http://www.sra.org.uk/consumers/problems/report-solicitor.page in terms of how to go forward, the supply of goods and services act requires that you give the contract a reasonable opportunity to attend to repair or rectify any issues that are not of reasonable standard. I assume given the amount of time that has gone by, you have already given him more than reasonable opportunity however, in the event you have not done so, it is important to allow him the opportunity before instructing any third-party contractor to carry out the work instead. If you cannot show that you have afforded him the above opportunity, a court may limit what you able to deduct from his costs. accordingly, the first step which you may well have already taken would be to write to the solicitor and advise that either you have given the contractor reasonable opportunity to complete the works on [dates] about the contractor has failed to respond or if you have not done so, give the contractor the opportunity to attend your property to carry out the works at which time his invoice will be settled less a reasonable deduction to take account of the very poor service he has offered. The next step is to obtain a quotation from an alternative contractor to complete the works and bring them up to the standard that is reasonably required - you may reer to your experts report in this respect. Alternatively, if your experts report already provides an estimate of the costs associated with completing the work which you are satisfied with, you could use this as a basis. Under the provisions of the supply of goods and services act, subject as above to your providing the contractor with a reasonable opportunity to rectify himself, you able to instruct a third party contractor to complete the work to bring it up to the reasonable standard you can require and you can look to recover those costs from the original contractor by way of a deduction from his invoice. Any balance would remaining owing to the original contractor. you could therefore offer to settle with the solicitor on the basis of these figures and a further deduction to take account of the contract is very poor service. it is important to keep a copy of all correspondence entered into in this respect. If the contractor refuses to settle on this basis, as he is the one seeking money, it is for him to issue a claim against you and for you to defend on the above basis. If you head any settlement letter you send "without prejudice save as to costs" this means that if the contractor does issue a claim, and he does not achieve a better result than the figure you offer him in your offer of settlement, he will be unable to recover any costs associated with this claim against you even if he wins. In the meantime irrespective of whether he issues a claim against you or not, you may consider retaining an alternative contractor to complete the works. If you do so, ideally you would attain to quotations and use the more cost-effective of the two. I hope the above is helpful? Can I help you with anything else or has the above answered your questions satisfactorily? If you could drop me a quick message to let me know I'd be very grateful.