Seeking Damages

[willbish]

Being a first for me I am unsure how to proceed. I am considering starting a civil case for costs I incurred due to the failings of a Structural Engineer.

 

Long story short, I made a complaint against a member of the Institute of Structural Engineers (not the one I employed for my build, he was excellent) The complaint committee found the Engineer was in breach of their code of conduct on two counts.

 

The complaint decision report makes reference to the costs I incurred as a result of the Engineers failings. Basically I had to engage a (competent) professional to formally dispute the inaccurate (total bollocks) work of engineer.

 

These are the only damages i would like to claim. 

 

The Institute of Structural Engineers obviously can't direct the engineer to pay but I assume a civil court can and that the complaint report written by the Institute will be permissible in court.

 

If I can dress this up as a case that the Engineer will lose, is it best I approach the Engineer and ask for the damages before starting court proceedings? or could that be interpreted as blackmail? Something I don't want to do.

 

Any thoughts or pointers much appreciated.

[joe90]

I know little of court cases etc but I know if you have a problem with say a builder, in the first instance you must give them the opportunity to put the work right. I feel it would not be unreasonable for you to put the report to the person in question and ask for the sum required with a statement that if he does not you will take it to court and claim costs as well.

[SteamyTea]

A number of (general) things come to mind.

 

If you can sort it out privately, do so.

 

Can the SE pay, no point claiming against a person that cannot.

 

Can you afford to chase a debt.

 

Was it paid for on a credit card, can you claim on that.

 

It the claim small enough to use the small claims court.

Edited December 15, 2020 by SteamyTea

[Ian]

You should write to the engineer stating your grievance together with a request that they pay the costs that you’ve incurred.

 

A condition of the engineer’s professional indemnity insurance will be that they can’t admit liability and must notify their insurer of the claim . The insurer will appoint a specialist solicitor who will formulate a response for the engineer to put back to you. 

The fact that the institutes complaints committee has already found against the engineer will be a big help in convincing the insurer to pay up. Depending on the amount of the claim it may be less than the amount of the insurance excess in which case the engineer will have to foot the whole amount of the claim.

[Roundtuit]

Try to negotiate directly, but I believe the small claims court process is fairly straightforward, particularly with the evidence you have, if needs be.

[willbish]

Thanks all. Looks like a letter stating my intentions to seek the costs incurred is the way to go.

A letter before action, I believe it is known as.

https://www.which.co.uk/consumer-rights/letter/letter-before-small-claims-court-claim

 

I might wait a couple of weeks...don't want to ruin an already rubbish Christmas!

[joe90]

@willbish make sure in your letter you give him a definite time to respond otherwise he will string it out forever.

[ToughButterCup]

15 hours ago, willbish said:

...

I might wait a couple of weeks...don't want to ruin an already rubbish Christmas!

 

Be careful about waiting.  Reading the following remarks, bear in mind that I have no legal qualifications at all.

LBAs (Letters Before Action)  have to be acted upon within 30 days of submission. Use the correct protocol (not the outdated one) This details the required content, I think the protocol is the one issued in Spring 2015, but Amendments may have been made since I last looked.

 

In general everyone should show that they have tried to keep the issue out of court and have at least tried to use Alternative Dispute Resoulution

[Jilly]

Would second trying to find a satisfactory solution between yourselves. My SE made an oversight which caused problems so I sent a polite letter setting out the problems they had caused and requesting they review their fee for the matter. They haven't been daft enough to send an invoice, so everyone saves face and they don't have to worry about admitting liability by giving a refund. 

 

As a professional, although I had professional indemnity insurance, I would have been mortified if anyone had claimed against me. An older, wiser colleague once gave a great bit of advice: 'Don't send a bill if things haven't gone well'. It's a good maxim to have, but a little old fashioned in these days of businesses being run by corporates, when invoices are shipped out by return.

 

Accept that everyone is human, and I would suggest giving this person every opportunity to see things from your point of view and explain what would be a  satisfactory outcome on both sides. 

 

 

[Ferdinand]

16 hours ago, Roundtuit said:

Try to negotiate directly, but I believe the small claims court process is fairly straightforward, particularly with the evidence you have, if needs be.

 

A court will want to see evidence that the parties have behaved reasonably at all times, and will take that into account in deciding the case and damages. The idea is to incentivise simple settlesments rather than wasting court time unnecessarily.

 

So ideally you need to show you have tried to negotiate, and offered arbitration etc.

[Mr Punter]

If you can easily quantify the total value of your claim, write to the other party explaining that these are the costs you incurred and you would like them to agree to reimburse you.  Be polite.  If you hear nothing, follow up with another letter or email.  It takes ages to get anything heard in court, so leave this until you hit the buffers with the polite but persistent correspondence.

[willbish]

Might have been a little hasty last night, buoyed by the news that the complaints panel found the Engineer in breach of their code.

 

Its a little complicated but I didn't engage this Engineer, or pay him any money. I was due to suffer the expensive consequences resulting from his shoddy work though. So I engaged my own professional to formally 'disprove' the garbage he had written.

 

At present the Engineer doesn't know that I'd like to recoup the costs I incurred, so will start with a polite friendly letter, before anything as serious as a LBA

[Ian]

51 minutes ago, willbish said:

Might have been a little hasty last night, buoyed by the news that the complaints panel found the Engineer in breach of their code.

 

Its a little complicated but I didn't engage this Engineer, or pay him any money. I was due to suffer the expensive consequences resulting from his shoddy work though. So I engaged my own professional to formally 'disprove' the garbage he had written.

 

At present the Engineer doesn't know that I'd like to recoup the costs I incurred, so will start with a polite friendly letter, before anything as serious as a LBA

You’ve got absolutely no chance of successfully suing the engineer if you didn’t have a contractual relationship with him/her. 

[willbish]

21 minutes ago, Ian said:

You’ve got absolutely no chance of successfully suing the engineer if you didn’t have a contractual relationship with him/her. 

 

Where's the requirement for a contractual relationship? I can think of many different types of examples where damages are sought and I don't think they all have prior contracts between both parties.

[Ian]

49 minutes ago, willbish said:

 

Where's the requirement for a contractual relationship? I can think of many different types of examples where damages are sought and I don't think they all have prior contracts between both parties.

Yes you can sue in Tort for negligence but it’s much rarer than cases involving breach of contract. Good luck.

[Ferdinand]

3 hours ago, willbish said:

Might have been a little hasty last night, buoyed by the news that the complaints panel found the Engineer in breach of their code.

 

Its a little complicated but I didn't engage this Engineer, or pay him any money. I was due to suffer the expensive consequences resulting from his shoddy work though. So I engaged my own professional to formally 'disprove' the garbage he had written.

 

At present the Engineer doesn't know that I'd like to recoup the costs I incurred, so will start with a polite friendly letter, before anything as serious as a LBA

 

How come?

 

Who was it that did have a contactual relationship with him?

 

Or was it a freebie?

 

Can you expand on that a touch. If he was engaged by your agent, then you would have a contractual relationship as you are Principal in that circs.

 

F

[Temp]

3 hours ago, willbish said:

Might have been a little hasty last night, buoyed by the news that the complaints panel found the Engineer in breach of their code.

 

Its a little complicated but I didn't engage this Engineer, or pay him any money. I was due to suffer the expensive consequences resulting from his shoddy work though. So I engaged my own professional to formally 'disprove' the garbage he had written.

 

At present the Engineer doesn't know that I'd like to recoup the costs I incurred, so will start with a polite friendly letter, before anything as serious as a LBA

 

You can't claim for damages you were "due to" have incurred. You can only claim for damages actually and necessarily incurred. 

 

You're entitled to your money back (zero as it was free?) and any costs necessarily incurred to get it that money back (eg cost of getting an expert witness to comment on the quality of the original work). However you would still have needed to pay a new SE to do the work again. You can't claim that bit back so you may not get all of the money you paid out on the new SE.

 

If I buy a new car and it doesnt work I could get my money back, and the taxi fare or car rental incurred while it was off the road but not the cost of a new car as that would leave me up a new car overall.

 

The judge might also say it was unreasonable of you to spend money for an expert witness to get back the "fee" you paid the first SE (because that was zero). He might say you should have asked for your money back.

 

The situation might be different if you can prove negligence but that can be difficult if you never actually incurred any damages.

 

Perhaps you haven't mentioned something that would help your case?

Edited December 17, 2020 by Temp

[Temp]

PS When we purchased our plot it came with a free ground condition report the previous owner had done. I paid a nominal fee to have the report assigned to me by the ground works co because the small print said it wasn't transferable. I could have just used it but wouldn't have been covered by the liability insurance they had. 

Edited December 17, 2020 by Temp

[Temp]

It occurs to me that if you got the original engineers report from the seller of a property  you purchased the you might have a claim against the seller. For example if the report meant you paid more for the property than you would otherwise. 

[Ferdinand]

Worth checking current small claims court fees.

 

It all went up rather dramatically in the last year or three.

 

May affect your judgement (!) as to what to do.

[willbish]

8 hours ago, Ferdinand said:

How come?

 

Who was it that did have a contactual relationship with him?

 

Or was it a freebie?

 

Can you expand on that a touch. If he was engaged by your agent, then you would have a contractual relationship as you are Principal in that circs.

 

 

Apologies I've been intentionally a bit vague to avoid identifying those mentioned. Though adding a little more flesh on the bones may help determine if this is worth pursuing.

The foul water from my property runs to a septic tank on church land. I am liable to 1/3 maintenance costs.

The church commissioned a structural engineer to survey the tank (speculation of development). The report was total garbage, laughable in fact. Tried to claim that black was white. Went so far as saying the tank was a cesspit not a septic tank and is an accident waiting to happen. I'd post it here but I think that would be a step too far.

The church were then gearing up for quotes to replace the whole system with 1/3 of the bill heading my way.

I commissioned a competent independent professional to dispute the Engineers claims, which I knew to be false, but couldn't dispute without professional backing.

 

Costs associated with this included emptying the tank, CCTV inspection and report. Fortunately the church woke up, took my report which states the system is currently oversized and complies with the Environment Agency general binding rules, and backed off.

 

I then made a complaint to the Institute of Structural Engineers about the original report. The committee has found he breached their code of conduct twice:

 

"Article 5: Undertake only those tasks and accept only those appointments for which they are
competent;
Article 6: Exercise appropriate skill and judgement."

 

Now I would like the costs back which I incurred whilst disputing his crap work. Just the cost of emptying, CCTV survey and report.

 

Perhaps I have been mistaken and it is not the Engineer who should pay but the church?

[joe90]

5 hours ago, willbish said:

Perhaps I have been mistaken and it is not the Engineer who should pay but the church?

 

Not in my opinion, the church just did what they thought was best, it appears their Engineer wrote the bollocks and your Survey proved that. 

5 hours ago, willbish said:

The committee has found he breached their code of conduct twice:

On the other hand if you try to get the money from the church THEY will pass the “fault “ to their engineer.

[Mr Punter]

You did not instruct the engineer, you just got another opinion.

 

In the past I have bought a plot of land with full PP.  When we later did a site measure the proposed house would not fit.  I had no claim against the original designer as I did not appoint him.

[willbish]

17 minutes ago, Mr Punter said:

You did not instruct the engineer, you just got another opinion.

 

Yes I can see it from that perspective. However the critical point here is the first 'opinion' has been found to be so inaccurate and unprofessional that disciplinary procedures against the Engineer have been applied by the Institute of Structural Engineers.

The second opinion wasn't really voluntary, to be used as a comparison with the first, it was a necessity brought about the inaccuracies caused by the Engineer.

[Ferdinand]

I think you should avail yourself of the usual free 20-30 minutes with a solicitor to find out if you have any claim, and under which process.

 

Personally, I do not think you have a claim under any straightforward procedure. And that you will have to be content with dodging the bullet.

 

However,  I think you need the word from a legal professional.

 

Plan B is to ask the ISE to make a ruling, which may or may not be possible.

 

The SE himself will only bite once you demonstrate a high possibility that you can make a claim stick.

 

Does your own household insurance cover it? I cant't see why it would.