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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8729
Experience:  I have been practising for 30 years.
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To whom it may concern. On the 17 June this year I suffered

Customer Question

To whom it may concern.
On the 17 June this year I suffered roof damage caused by timbers used to construct my neighbour’s garden decking spanning the entire width of her garden. During this construction my neighbours contractors were seen by myself stacking vertically timbers including decking planks at the back of my dinning room extension.
During that day heavy rain fell and water ingressed into my dinning room through the ceiling and down onto the expensive floor carpet. I immediately called my roofer who carried out an emergency survey to ascertain the cause of the leak and carry out repair. He found roof impact damage to the rear of my dinning room gable end roof tiles and roof membrane.
I approached my neighbour Ms D. Barry upon receiving this information, but she wouldn't answer her front door, therefore I sent a polite letter informing her of the accident situation requesting her insurers details but, later that day she paid a sudden visit and began disrespectfully ***** ***** my front door step having been cordially invited in, and refused to supply her contractors details or accept liability. I later discovered her builder ex husband’s brother maybe a partner with this company, and I don’t think she’s house insured.
I then visited to Citizens Advice Bureaux and they recommended another letter to my neighbour giving her 'Mediation Services' and did so, but she refused mediation and further said any further letters would be regarded as harassment to trigger legal action against me. In this letter I gave her 2 weeks to reply, 4 weeks later she sent round the contractor foreman who said he thought it could have been an accident (this was witnessed) as he hadn't been supervising all the time being out on other sites. He then said his employers probably would consider this an insurance matter and asked me to contact them should I not hear from them in response to his advice to them, and gave me their contact address.
They didn’t contact me so, I posted my grievance to them. I did so with a copy of my roofers statement and Bill £340, who in their statement have given a qualified account of why they regard this as impact damage, and included photos to show a perfect roof they had completed only 10 months previously when carrying out pointing maintenance, and included damage photos to support their view.
My neighbours company called Groundforce SOS wrote back and in few words simply rejecting my claim for compensation saying, I quote: “they simply couldn’t have done the damage” and gave no reasons why not. I sent a reply letter politely asking their reasons, but they reiterated no responsibility for compensation, and have ignored my request for proof to back their assertion. The Bill for repair came to
I have given every opportunity to Groundforce SOS and my neighbour to act responsibly to my claim but after much prevarication my claim is still being treated with contempt. Do I have a case for going to Small Claims Court, who do I claim upon the home-owner or contractor, what my chances of winning, and could I end up with their defence expenses even though they have refused to give me the information I need to avoid taking them to court by way of a justification to claim refusal.
Submitted: 3 months ago.
Category: Law
Expert:  F E Smith replied 3 months ago.

Thank you for the detailed background. What would you like to know this?

Customer: replied 3 months ago.
I am ver hard of hearing so cant use the phone so please respond by e-mail. My question is as filled out on your My Question form which reads as follows: On the 17 June this year I suffered roof damage caused by timbers used to construct my neighbour’s garden decking spanning the entire width of her garden. During this construction my neighbours contractors were seen by myself stacking vertically timbers including decking planks at the back of my dinning room extension.
During that day heavy rain fell and water ingressed into my dinning room through the ceiling and down onto the expensive floor carpet. I immediately called my roofer who carried out an emergency survey to ascertain the cause of the leak and carry out repair. He found roof impact damage to the rear of my dinning room gable end roof tiles and roof membrane.
I approached my neighbour Ms D. Barry upon receiving this information, but she wouldn't answer her front door, therefore I sent a polite letter informing her of the accident situation requesting her insurers details but, later that day she paid a sudden visit and began disrespectfully ***** ***** my front door step having been cordially invited in, and refused to supply her contractors details or accept liability. I later discovered her builder ex husband’s brother maybe a partner with this company, and I don’t think she’s house insured.
I then visited to Citizens Advice Bureaux and they recommended another letter to my neighbour giving her 'Mediation Services' and did so, but she refused mediation and further said any further letters would be regarded as harassment to trigger legal action against me. In this letter I gave her 2 weeks to reply, 4 weeks later she sent round the contractor foreman who said he thought it could have been an accident (this was witnessed) as he hadn't been supervising all the time being out on other sites. He then said his employers probably would consider this an insurance matter and asked me to contact them should I not hear from them in response to his advice to them, and gave me their contact address.
They didn’t contact me so, I posted my grievance to them. I did so with a copy of my roofers statement and Bill £340, who in their statement have given a qualified account of why they regard this as impact damage, and included photos to show a perfect roof they had completed only 10 months previously when carrying out pointing maintenance, and included damage photos to support their view.
My neighbours company called Groundforce SOS wrote back and in few words simply rejecting my claim for compensation saying, I quote: “they simply couldn’t have done the damage” and gave no reasons why not. I sent a reply letter politely asking their reasons, but they reiterated no responsibility for compensation, and have ignored my request for proof to back their assertion. The Bill for repair came to
I have given every opportunity to Groundforce SOS and my neighbour to act responsibly to my claim but after much prevarication my claim is still being treated with contempt. Do I have a case for going to Small Claims Court, who do I claim upon the home-owner or contractor, what my chances of winning, and could I end up with their defence expenses even though they have refused to give me the information I need to avoid taking them to court.
Customer: replied 3 months ago.
I'm not getting any response, are you getting the information and .jpeg's sent?
Customer: replied 3 months ago.
Have included more photos.
Customer: replied 3 months ago.
The letters sent to my neighbour.
Customer: replied 3 months ago.
finally my letter sent to Groundforce SOS.
Customer: replied 3 months ago.
I now await your reply. (Payment £56 has been made to you in advance).
Customer: replied 3 months ago.
Please remember I cannot use the phone being deaf, so please e-mail your response.
e-mail address: ***@******.***
Expert:  F E Smith replied 3 months ago.

I apologise for the delay. I had a client.

Thank you for all the information. That is very comprehensive and useful.

What I need to know is what exactly is it that you want to know about this? What is your question?

Customer: replied 3 months ago.
Good Morning,I waited as long as I could yesterday for a reply but then had to move on to appointments myself away from home. You ask "what is my question" but as you see above, I have given at the bottom of my statement of events questions of advice I need, so I repeat these questions based on the above detailed events with supports photos and documents. My questions are : "Do I have a case for going to Small Claims Court, who do I claim upon the home-owner or contractor, what my chances of winning, and could I end up with their defence expenses even though they have refused to give me the information I need to avoid taking them to court". If this is no within your scope of expertise please inform me and refund my remittance.
Customer: replied 3 months ago.
I see you are busy probably with another client, but I cant sit by my keyboard all day as before. Can you please communicate via my e-mail address, as I'm not sure how to get back into this communication board without going through all the password ***** that changes everytime I try to use your website. Frankly this is not as user friendly as I expected. My e-mail address is: ***@******.***
Customer: replied 3 months ago.
Coming back to this reply notice board, its now nearly an hour since I first replied at 9:30 am, so I'm just adding a bit more information before leaving this site as I have an appointment to keep, but will return later this afternoon. The floor joists used and Decking planks were 15ft long so had more than enough reach to cause impact damage when leaned up against the back of my extension. My roofer said that, apart from the obvious signs of impact, there were no signs of weather erosion that would have occurred on both sides of the roof apex anyway, and over such a short space of time since my new roof was completed. So I have both shown the evidence of impact, coinciding time my roof leaked with the decking project, opportunity and method by which damage occurred to my roof. I await the legal advice I have paid for and not yet received.
Expert:  F E Smith replied 3 months ago.

I’m afraid the all communication has to go through the website unless we are communicating by telephone (which we are able to do) but for which there is an extra fee. You shouldn’t have to keep changing password, it should be the same every time.

The amount of your claim is under £10,000 and hence, this would be dealt with in the Small Claims Court. Even if the defendant had legal representation, and your claim failed for any reason, you would only have to pay their fixed solicitors costs of about £100. You obviously wouldn’t recover the amount of money that you’re claiming. If they didn’t have legal representation, then you would normally only pay their out of pocket expenses.

This damage has been caused through no fault of your own and it would be something that I would be taking to the Small Claims Court if neither the neighbour nor the contractor were willing to pay up.

You have to give them due warning that if they don’t pay up by a particular date (given 14 days) you will get the work done, pay the bill and then seek the costs from them, through the Small Claims Court necessary.

To support your claim you are going to need a quotation for doing the work (not an estimate but a quotation) plus you are going to need something from whoever does the work or quotes the work which confirms how this is likely to have happened.

If they don’t pay up, you issue Small Claims Court proceedings which you can do quite easily online here www.moneyclaim.gov.uk

You ask who is the correct defendant, the neighbour or the contractor. The contractor was the agent of the neighbour and if the neighbour chose to use incompetent contractors then the neighbour is in some way culpable. What I would do is I would issue against the neighbour as first defendant and the contractor as second defendant and let the court decide which one of them (or both) is liable.

Based upon the evidence you have given me, I cannot see how they can have a defence unless they could prove to the satisfaction of the court that this damage was caused in some other way. These matters are decided on the balance of probabilities and hence, I think that is likely to be in your favour.

Can I clarify any points arising from this?

Please rate my answer (not the site) service positive. It’s an important part of the process by which experts get paid.

We can still exchange emails.

Best wishes.

FES.

Customer: replied 3 months ago.
Dear Mr Smith,
Thank you for your advice reply.
I thought I'd included my 'Roofers Quotation', but see I haven't, so add this for inclusion with my other documents sent. At the time I sent my first letter to Groundforce SOS I included this quote with a 14 day deadline as you will read in that particular document sent for your scrutiny.
Would you still advise taking Groundforce SOS and the neighbour to Small Claims Court or, as I have given Groundforce 14 days notice with this Invoice thats long since expired. Would it be simpler to go for them only?
The reason I'm asking is that I did send a copy of my invoice to my neighbour, with again 14 days notice, but never got a written reply back, just her daughters verbal diarrhoea refusal, when she was sent round in reply to my second letter as advised by citizens advice to suggest a 'Mediation Service' which she also refused with a threat.I look forward to your reply,Bren Calver.
Expert:  F E Smith replied 3 months ago.

If it was a toss up between the two, I would go for the contractor, not the neighbour. If this notice has already expired, then there is no reason why you cannot issue proceedings against them now. After all, it was them who did the work.

Don’t worry about whether you got a written reply or any reply, all you need to do is give notice that they don’t pay up or come up with a proposal to pay, they will end up in court.

If you given the neighbour notice that you were going to go to court, I would issue proceedings against them and Ground force because they can then put pressure on ground force.

Please don’t forget to rate the service positive. We can still exchange emails.

Customer: replied 3 months ago.
Dear Mr Smith,
Thanks for your considered reply.
When I went to Citizens Advice they advised the Court favour those who have taken 'Mediation Services first.
In my formal statement of events to you, I explained that I had written to my neighbour (See 2nd letter "Dear Debbie") offering 'Media Services' which she refused via her daughter verbally, and then threatened harassment if I contacted her again.
Although I have written to Groundforce SOS and given them a chance in two letters (you have copies) with my Invoice to compensate me, I did not offer 'Mediation Services' to them, because my neighbour for a long while not only refused liability, but also refused to give me their address details, so I had to appeal to Groundforce SOS direct and without this offer to save time.
They of course refused compensation with no reasons given (see letters) in their last responses.
If I go for the company there is this 'Mediation' problem, though they have refused twice, will this go against me, and I get their legal costs because they havent been given Mediation?. If I go for the neighbour she was given 'Mediation Services' but refused, though not in writing. If I go for the pair of them and lose on one not being given mediation, will I then get to two sets of legal costs?
I'd appreciate your considered view.Yours Sincerely.Bren Calver.
Expert:  F E Smith replied 3 months ago.

You cannot force someone to mediate. During the course of the legal process you will be asked whether you will agree to mediation when you fill in the Allocation Questionnaire and then, you tick yes. If the neighbour doesn’t tick yes, it goes to court if the neighbour does, then a mediator will attempt to arrange an appointment for you both.

The courts like people who will agree to mediation because it shows that they are reasonable. The reality is that it doesn’t make much difference in the end.

The courts rarely award costs against a party in the Small Claims Court unless that party has been completely unreasonable and refusing mediation would not be grossly and completely unreasonable.

If you sue them both, and they both use solicitors, (most unlikely) and you lost, you would have to pay the two sets of thick solicitors costs which would probably be no more than £100 each plus of course you would lose your court issue costs. For this amount of money, it’s unlikely that they would use solicitors purely because of the cost involved. They would have to pay the solicitor £200 per hour but they would only recover a maximum fixed cost of £100 in total.

Customer: replied 3 months ago.
Dear Mr Smith,I think from what you are saying it is better to go for the company because, if I risk going for them both that probably would almost exceed the damage costs I am asking for so, no point in adding salt to the wound.
Also, as you say I will be asked again anyway to agree to 'Mediation Services' for Groundforce SOS but, my statement will show I have given at least one party this opportunity, and have my Citizens Advice (client number) to prove it, plus my copy of their Mediation forms, one copy sent to my neighbour which she refused to agree to. What do you think of my logic?
Expert:  F E Smith replied 3 months ago.

You would not recover twice, you would only recover from one or the other or in proportion. If in doubt always go for the worker.

I think your rationale makes sense.

When you got a moment, please don’t forget to rate my answer so that I get paid. I will still be able to answer further queries if they crop up.

Customer: replied 3 months ago.
I think going for the (worker) is probably the best bet, after all, although my neighbor was beyond the pale in being obstructive and abusive in refusing to accept liability, it was the recklessness of her contractor who did the damage. By the way, if you look at my previous case 10 months ago, your firm gave advice to me regarding sacking a previous roofer who never bothered to turn up then demanded payment by menace £800. Groudforce SOS I'm sure knows this sacked roofer, and was probably asked to damage my roof in revenge. I form this opinion from something my neighbors foreman said out of context about most roofers in this area knowing and working for one another. My 2nd roofer wasn't from this area and came from West London and did a superb job until this company ruined it. So, I'm going to use now your Small Claims Link but may need a little guidance or not depending on legal jargon used.
Expert:  F E Smith replied 3 months ago.

Thank you for your observations and history, I’m glad to have helped.

You should find the small claims linked relatively straightforward although you may get a little confused with some of the paperwork which arrives later. I am happy to help you with that and if you ask for me personally, “for FES only” at the beginning of your question, it will be left for me because I know the history. Best wishes.

F E Smith, Advocate
Category: Law
Satisfied Customers: 8729
Experience: I have been practising for 30 years.
F E Smith and 2 other Law Specialists are ready to help you
Customer: replied 3 months ago.
Good morning Mr Smith,I actioned my Small Claims case yesterday, and was surprised how the page forms required so little completion and that, there was no facility to down load supporting documents. Even the main statement was restricted to about 42 lines in a narrow column width so, not many words to explain evidence supporting ones case or obstructive behaviour. Perhaps this comes later if the defendant does not accept the liability to compensation?. Also there wasn't a facility to include, apart from the court fee, any other extraneous costs like getting legal advice on the internet, solicitors yes if they are actually representing a defendant or claimant. Is this normal? If it is, why is going for legal advice to a high street solicitor or one on the internet not considered a justifiable cost, when a claimant or defendant needs advice before proceeding to court? Surely this responsible action helps avoids unnecessary cases wasting court time if the advice is not to proceed?
Expert:  F E Smith replied 3 months ago.

. Thank you. You will find that the judge may order you to send a fully structured claim at some stage in the future. You will then at some stage be asked to disclose all the documents you have and exchange all those that you wish to rely on court.

I must admit I find the online system frustratingly short myself.

The secret with the costs is to keep a note of the more and if it gets to court, make sure that you ask the judge in court on the day. You are only entitled to recover fixed solicitors costs to about £100 in the Small Claims Court.

Always ask for everything and let the judge decide what he will and what he will not allow.

Customer: replied 2 months ago.
Dear Mr Smith,
Since your last reply I have completed my Small Claims Forms, and got a response from their Northampton Office offering (and advising) 'Mediation Services' first which I wrote back and agreed to. I have this morning received another reply from Northampton Offices saying the defendant has refused Mediation Services, and wants to go strait to Small Claims Court. He again hasn't given any other information for me to access his refusal, other than saying there were no witnesses. He as director of the company wasn't there on site either during the garden decking construction period. I have tried keep my costs down and his and have only put myself to represent my case in court but, have included my professional roofers report you have a copy of. What in this situation would you advise? I assume he has now included a solicitor will I have to pay all this or any other expenses if he wriggles out of this pleading no witnesses.This seems unfair as I have given him every opportunity to prove his case without additional expenses if the ruling goes against me, and I have proved "In all probability" his work men had the means, and time frame, and access to cause damage, and have suppling both damage photographs (you have) plus recent Met Office forecast giving a clear spell end of May when Groundforce commenced and finished, on the very day torrential rain fell alerting me to my roof damge the 7th June, the date I complained to my neighbour. What do you advise? I am now extremely hard of hearing and have informed Northampton Offices and provided a concise written statement , roofer Report, Met Forecast, and damage photographs to assist myself and the Mediation adjudicator.
Expert:  F E Smith replied 2 months ago.

I’m sorry for the delay in coming back to you. Because of the age of this thread, a month old, I no longer get notifications when you reply.

It is not unusual for defendants to refuse mediation particularly if they think they’ve done something wrong surprisingly it may seem.

If the claim is under £10,000, he will only recover about a hundred pounds of solicitors costs.

You are not entitled to claim your time cost for dealing with this in the Small Claims Court but you are entitled to any expenses, travelling expenses, any loss of income for the day in court and the cost of any expert information you need/experts report or anything like that.

Customer: replied 2 months ago.
Mr Smith, Thank you.
I notice there was a Lords ruling in the case of the miners strike that "in all probability" was admissible, and brought a conviction at least when caused by 'intent' so, I'm wondering if there are any case histories that have been established where "Undue care and attention"has been involved?
Expert:  F E Smith replied 2 months ago.

These are basic legal principles. Civil matters are always decided on the balance of probability. Criminal matters, beyond all reasonable doubt.

In civil matters, it is a case of someone owing a duty of care and the duty of care being breached and as a result of the breach, the claimant suffers loss or injury.

Customer: replied 2 months ago.
Thank you Mr Smith very grateful for your reply.
I'll inform you of the outcome, but waiting for a court hearing date. If you see any chinks in my statement let me know and I will prepare myself but I feel the defendant has now shot himself in the foot by not agreeing to Mediation Services as I have (TWICE). Blow is my reply yesterday to their notification to the defendants refusal to Mediation Services.

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