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Hello I am a lawyer with over 15 years experience. I will try to help you with this.
I will give you a full answer later this morning. But can you just clarify are you unable to support yourself at the moment because you have just retired and taken a drop in income and then experienced this change in circumstances which has meant that your outgoings have not declined as anticipated?
Good morning. Thank you for your reply and further question.
The house is a large 6 bedroom property in two sections - and old 3 bedroom cottage (coach house) dating back to 1900, linked to a 3 bedroom 'barn style' conversion (brick built ex LEB sub station). We had 3 lodgers in the cottage which helped to pay for a large slice of the mortgage. My wife, myself, our daughter and son-in-law (to be) lived in the barn conversion also thee bedrooms with its own barthroom and small kitchen/breakfast bar. My daughter paid rent too. I worked for an American company (for 20 years) in a senior sales/management position, but for the last 5 years the company has struggled, and I stayed with them to try to sort out their problems. The hours got longer, and the income became less. My wife also worked from home as European book keeper/administrator for the same company. Her pay became very erratic over the last 18 months.
Thankyou. I am about to go into a meeting but will answer you later this morning. I hope that is OK.
We decided to sell up and downsize - pay off the mortgage and loans, and retire on the balance, and resign in January. We found a buyer in December and were due to sign contract first week of January. We had found the ideal house in Somerset (not on the flood plains!) and had agreed with the buyer to move out in April. Our diaghter had found a flat to buy and planned to move out this month. We gave notice to the lodgers. We cannot bring the lodgers back because we still have that part of the house standing, our insurers only provide my wife and I with temporary accomodation for January.
1 The limitation period is 6 years from date of negligence if there is no personal injury claim and 3 years if there is a personal injury claim (this would include metal ill health if any resulted). The act which stops time running is not instructing solicitors but issuing proceedings in the courts.
2 In terms of assessing the level of uninsured losses this will not be an easy thing to do. There will be some things you can put an exact price (these are called liquidated damages and will include quantifiable financial costs eg of having to pay the mortgage for an extended period, the cost of alternative accommodation if uninsured)) but loss of retirement time, distress, inconvenience etc is much harder to quantify. You are paying a mortgage for a house you can not use and it may be that the monthly cost of that mortgage is the starting point for assessing those damages. (ie number of months uninhabitable x monthly cost of mortgage) That would be in accordance with an approach for assessing loss of amenity for people living in rented accommodation which is in severe disrepair. However the purpose of damages is to compensate you for your suffering and this would only be a starting point for assessing compensation for that.
3. As for punitive damages that is an American phrase, in this country the term is exemplary damages and they are limited to the following circumstances: (a) Oppressive, arbitrary or unconstitutional actions by the servants of government, (b)where the defendant's conduct was 'calculated' to make a profit for himself, or (c) where a statute expressly authorises the same. It may bt that if the building company deliberately took risks in order to save.make money you could put yourself in the 2nd category but British Judges are not very comfortable with the concept of exemplary damages.
4 the solicitor for the uninsured losses is being paid for by your insurers I take it. It is likely that your insurance contract will limit you to a solicitor from the insurer’s panel. You need to check this clause to see if it gives you any other sort of choice. Is there a reason you are not entirely sure about the solicitors instructed so far? Even if you are restricted on your choice under contact if you have a strong preference for another solicitor you can always try and negotiate the new solicitor with your insurance company. (this will become harder as time goes by because the insurers will not want to pay 2 firms of solicitors.).
5 I take it the insurers will not provide temporary accommodation for more than a month. If so you must not be being helped now. It sounds as if there will be no prospect of help in terms of state benefits. You may need to negotiate with you mortgage company about a period of relief from making payments. If this happened extra interest will accrue (which could form part of your claim) and there could be damage to your credit rating. Also once proceedings are issued if the claim is admitted then you may be able to get interim damages if the only dispute is the level of damages. From your description an admission of liability sounds likely. Most civil claims are settled without the need for a trial although Defendants usually try to delay the inevitable as much as possible.
I hope this has answered your question but please ask further questions if you need any clarification or more help.
Thank you, XXXXX XXXXX a great help.
Two more questions: Item # XXXXX(b) where the defendent's conduct was 'calculated' to make a profit - does this include 'cutting corners' as they have clearly done by not following the Party Wall Act proceedure of notifying us before commencing work, and not shoring up our foundations or underpinning appropriately before excavating, all of which have associated costs. If the site labourers simply went ahead unsupervised, they may not be responsible, but lack of supervision by the appropriate site manager or CDM Co-ordinator is the responsibility of the site developer, and I have been informed by an independaent Construction epert who has visited the site, that they have clearly saved on cost and time, resulting in insufficient hazard control and hence the collapse of my house. If we can prove this point clearly, is it likely that a judge will still be uncomfortabel with exemplary damages? Q#2 You say 'most civil claims are settled out of court' - so at what point in this process so I put a 'deal' on the table for the defendant - do I have to wait for liability to be substantiated, or proven by my insurers lawyer, or is there preparation work on a proposed early settlement that can be done in anticipation of that?
Hello. I have completed the rating, and my apologies that took so long.
I also had two final questions which are unanswered - see my last message on February 14th.
Also, I have signed up with Plus Membership, so I can come back with more questions as my situation develops. Should I always come back to you for this, or will I get a different lawyer each time?