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Harris, Law Specialist
Category: Law
Satisfied Customers: 1613
Experience:  Family Law - Specialist in Divorce, Financial Relief and Children Matters
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I have sent a Pre Action Protocol letter to a builder who

Customer Question

I have sent a Pre Action Protocol letter to a builder who has done some bad work for me. I used a template letter from the internet which I adapted. He has responded saying it is invalid because I "failed to state the legal basis of the claim".
I did in broad terms state my claim. Do I have to go into exact detail, with all the evidence at this early stage?
Submitted: 5 months ago.
Category: Law
Expert:  Harris replied 5 months ago.

Hi, thank you for your question. Is your claim for money, or something else? If it is for money, how much are you claiming?

Customer: replied 5 months ago.
Claiming the full cost of work to make a garage watertight from ground water. £1451.50, as the work has had no effect?
Expert:  Harris replied 5 months ago.

Thank you - your pre-action letter should include the following:

  • your name and address
  • the reason for your claim
  • a clear round up of the facts
  • what you want the trader to do to put things right
  • how much you're claiming. If you're claiming compensation for extra costs you've had as a result of the problem, you'll need to show how you have worked out the costs, including interest
  • a list of any documents you'll be using to prove that you are owed the money
  • an invitation to use alternative dispute resolution like mediation to sort out your problem, if you haven't already tried it
  • a date by when you want the trader to give you a full response. This will depend on how complicated the case is, but 14 days is usual
  • a request for any documents that you want the trader to provide which will help your case
  • a reminder that you will start court proceedings if the trader doesn’t reply to the letter and that this may mean they will have to pay extra costs
  • a reminder that both of you are expected to follow certain rules. These are set out in the Civil Procedure Rules and they aim to make sure the case is dealt with fairly.

As long as your letter has clearly outlined the above and you remain unhappy about his response you can pursue the matter to court.

I hope this assists you. If you found this information helpful please provide a positive rating using the stars at the top of this page. I will not be credited for answering your question without a positive rating. Thank you

Customer: replied 5 months ago.
Well, I think it does. Maybe it would be easier for you to read it, I have pasred it below:Reference: Works to make watertight the garage at ** Buxton road.As it has not been possible to resolve this matter amicably, and it is apparent that court action may be necessary, I write in compliance with the Practice Direction on Pre-Action Conduct.To briefly sum up. In around June 2015, I asked you to make my garage/outbuilding watertight against the ingress of water from the ground. You told me that 'tanking' the outside wall, which is partly underground, would be the solution. You completed that work, together with re-pointing the rear wall, for which I paid you the sum of £1451.50.I am not convinced that this work has been carried out to the required standards. And it has become clear that it has not solved the problem, as there is still water entering the garage. On notifying you of this situation, you then started suggesting a number of additional measures, at additional cost, that might solve the problem.I understand your argument, is that you told me from the start, that other measures would be required. I do not believe that you did tell me that. You have repeated this claim on many occasions since you did the work and realised that it was unsuccessful. But I am sorry, I know what was discussed in our initial conversation and you made no mention of any additional stages! You suggested 'tanking' the rear wall as the sole solution.
Furthermore you offered me two options. First to use a cheaper membrane which would also require the provision of a drain, or secondly using a more expensive membrane which would not need a drain. I chose the second option.From you I am claiming £1451.50 plus my costs.
I have calculated this sum using the following breakdown of moneys paid to you:£779.50 for labour to install the tanking and hire of mechanical digger.
£322 for materials.
£350 for re-pointing the exterior rear wall.
£1451.50 Total, paid to yourself.As I have told you previously, I am prepared to negotiate a partial settlement, to avoid court action. However, you have thus far refused to discuss this option.Listed below are the documents on which I intend to rely in my claim against you:The PCA Best Practice Guidance to Type A Waterproofing Systems (BS 8102: 2009) and other downloaded information supporting Building Regulations and construction techniques.
Product information from Cromar Building Products.
Records of all text, email and written correspondence between us.
Records of correspondence from other relevant bodies. Councils etc.
Various photographs of the work in question.In accordance with the Practice Direction on Pre-Action Conduct I would request that you provide me with copies of the following documents:
Technical Data Sheets on all the materials used. (I acknowledge you have already made these available to me, thank you).As previously stated, I can confirm that I would be agreeable to mediation and would consider any other system of Alternative Dispute Resolution (ADR) in order to avoid the need for this matter to be resolved by the courts. I would invite you to put forward any proposals in this regard.In closing, I would draw your attention to section II (4) of the Practice Direction which gives the courts the power to impose sanctions on the parties if they fail to comply with the direction including failing to respond to this letter before claim.
I look forward to hearing from you within the next 14 days.
Should I not receive a response to my letter within this time frame, then I anticipate that court action will be commenced with no further reference to you.Yours faithfully,
Expert:  Harris replied 5 months ago.

Thank you - that looks satisfactory to me and appears to meet the necessary pre-action protocol criteria

Customer: replied 5 months ago.
Thank you,
So just to finish of, you don't think I need to provide him with further information?I had considered stating that I have discovered the work does not comply with building or planning regulations. Would that be better left and presented in court, or should I in fact mention these irregularities beforehand?
Expert:  Harris replied 5 months ago.

If it is something that you are likely to rely on in court, then you should mention it at the earliest opportunity, so maybe send another letter setting this out as well as that you do not agree with his position and outline you will proceed to court (if this is the case)

Harris, Law Specialist
Category: Law
Satisfied Customers: 1613
Experience: Family Law - Specialist in Divorce, Financial Relief and Children Matters
Harris and other Law Specialists are ready to help you
Customer: replied 5 months ago.
That's great, I will do that.
That's all for now, will rate your response now. Bye.
Expert:  Harris replied 5 months ago.

Thank you - I hope it goes well. If you have any questions in the future you can ask for me directly by starting your question For Harris

Customer: replied 3 months ago.
Hi, I contacted you some weeks ago regarding this matter of shoddy building work. Which was done at my partners house near Buxton. I have been helping with her dealings with the builder, as she is not very confident with such things.Anyway, on your advice we sent a follow-up Pre Action Protocol letter, along with a less formal email. I have attached both for you to see!We have eventually received a response from a 'legal' firm. Although the letter is not actually signed by a solicitor! I have attached it for you to read. Sorry, the only way I could upload it was as a series of screen grabs!It seems to me that this response is just a bit of 'sabre rattling', as there are no end of things in it, which I can't see them upholding in court. But then I am not the expert regarding that, which is why I am asking your advice.I am tempted to write back pointing out the discrepancies in their argument. The main things being:1. Their 'history of the matter' is incorrect. This has been one of the main arguments from the start. Having realised his efforts had failed to solve the problem of water ingress to the garage, the builder has come up with the story, that he told us from the very start that he would have to do the job in 'stages'. The work he has done so far being only stage one. Which is why the problem persists!
My partner is certain he did not say any of this at the start. But basically, this boils down to one persons word against another's. It was a verbal contract, to which there were no witnesses.
Also, they have failed to mention one important event. The builder returned to look at the job after my partner complained. As chance would have it, I was there when he came. He did not mention once the supposed 'stages'. Which is odd, as he is now relying on this as his get out clause. Of course the reason he didn't mention it that day, is because it was never said at the outset. He has only come up with that story since!2. They seem to be suggesting that because we hoped to keep the cost down (who doesn't), we should somehow expect to get shoddy workmanship. Surly, no one deserves a job to be done badly, no matter how cheap it is!3. They say the work has been done 'in accordance with normal industry practice'. I would suggest that means complying with Building Regulations and Manufactures Instructions regarding materials. Which of course he hasn't done.4. The building has no Heritage Status. They seem to think that means it doesn't need to comply with planning rules. However, when I contacted the council, I made it very clear that the building had no special status. Yet they still said that work must match the original materials, which of course it doesn't!
They are also saying their client never agreed to accept responsibility for complying with planning rules. Its true he didn't specifically do that. But could we not reasonably expect a supposedly Professional Contractor to undertake work in accordance with the rules automatically. Why would anyone want a job doing that didn't comply??5. They accuse us of harassment! How is contacting a builder about a job you are unhappy with harassment. We have never bombarded them, any message sent, we have politely waited for a reply.Sorry to burden you with so much information in one go, but obviously you can't adequately respond without all the information. Your advice on how to proceed, would be greatly appreciated.Kind regards Robin.
Expert:  Harris replied 3 months ago.

Hi, thank you for the further information. Given that they are raising an incorrect chronology of events which you contest, I would suggest that you put to them your side of events again and outline the issues that they have missed - along the same lines as your outline above.

Customer: replied 2 months ago.
We sent a lengthy reply addressing each of there points, I have attached it for you to read.
They have responded with the brief message (pasted below) . It does not seem like they are backing down, but they haven't challenged any of the points we made either!
Not sue what to do next, other than just take it to court. Do you think we have a good chance of success?
Regards.Their resonance to attached letter:
We acknowledge receipt of your letter 20th july. Nothing you have said changes our clients postion which was fully set out in our letter to you. Simply put1. this was a time and materials contract based on a verbal agreement.2. no guarantee was offered that the first phase of the works (what you refer to as the 'tanking of the rear wall' ) by itself would solve the problem of water ingress to the garage - for example. it was self-evident that water was seeping up through the broken floor inside.3. you asked our client to stop work - he recommended that further works were needed and even offered to allow you to defer payment - but you declined, citing lack of funds.4. you have produced no evidence that the continuing water ingress is caused by defective workmanship; in the works he actually completed.There is nothing further to add.We again recommend that you seek independant legal advice on your position.
Expert:  Harris replied 2 months ago.

Thanks for the further question. It is difficult to outline what your prospects of success is but you should consider whether the costs compared to the benefits is worthwhile when pursuing a court claim.

Given that the sum of money concerned is approximately £1,500 the likely legal costs for both of you if pursued to court will be substantially more than this.

Customer: replied 2 months ago.
I didn't think in small claims court (I know it's not called that anymore ) that costs could get that high? I know there is a fixed court fee and possibly a small amount of costs to the other party if you lose. And I thought I read on the government website that you wouldn't have to pay the other party's solicitor fee if you lose. Have I got this wrong, how could the costs be over £1500?
Customer: replied 2 months ago.
Furthermore regarding whether we stand a chance of success in court. Assuming you have read all the correspondence I have sent. You will know that one of the arguments boils down to one person's word verses the other. I can obviously see why you can't suggest how this would go in court!
However, as far as the work this builder has done so far, one part of it has not been done to the manufacturers instructions. and as a result probably does not comply with building regulations. And another part of the work does not comply with planning rules. And both these things we can prove, as you will have read.
Yet you still advise that it is not certain what the outcome would be. To us it sounds 'cut and dry ' ! There is obviously something about the law that is not as straight forward as it seems. Please enlighten us!
Many thanks, Rob
Expert:  Harris replied 2 months ago.

It is not always as "cut and dry" as it seems and it will be for the judge to decide whether the claim is a viable on or not.

In relation to the legal fees, if you (or your opponent) were to instruct legal representatives, these will be well in excess of the £1500 you are claiming as you will need to take into account solicitors fees to prepare for the case, and legal representation (either a solicitor or barrister) to represent you at the hearing. Depending on how contested the case is, there could be many hearings which will only increase costs.

Customer: replied 2 months ago.
Just following up re the legal fees. I found some information on the "Moneywise" web site, it says: "The small claims route is intended for ordinary people, not lawyers. Neither side can claim legal costs from the other, although the winner can claim court fees, plus travel and certain other costs."
So if that is true, I do not understand how you think the costs could reach £1500 or more. Especially if we represent ourselves?
Customer: replied 2 months ago.
Not had an answer yet??
Expert:  Harris replied 2 months ago.

Apologies, I had overlooked this. It is correct that the successful party cannot claim legal fees, but would be entitled to court fees, travel fees and any loss of earnings.

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