Claiming / negotiating for unliquidated (i.e. actual) damages for late completion?

[DundeeDancer]

Wondering if anyone here has successfully claimed / negotiated for unliquidated (i.e. actual) damages for late completion of one of their projects?

 

The contract I entered into was the following type:-

Homeowner Contract (with Consultant) 2013 Edition for use in Scotland.

The Joint Contracts Tribunal 2009.

 

My main grievance is that the build contractor failed to achieve practical completion by the completion date set out in the contract.

 

In the contract it specified that the works would take 8 weeks.

 

“Prestart meeting notes” which came with the contract pack, it was written:-

Possession

Practical Completion

• Building Control to carry out final inspection.
• CO to provide Electrical Completion Certificate and GasSafe Certificate.
• CO to provide any Form Q information for SE.

 

On Tuesday past it was 18 weeks since the first day the builder came to site and I still haven’t seen the Electrical Completion Certificate yet. 

The architect has not issues a Practical Completion certificate or for that matter a certificate of non-completion. 

The Architect has said on the phone that Practical Completion doesn’t really exist in a Homeowner Contract but I feel as I don’t have any certificates yet the late clock is still running.

 

Building Control have inspected the property but have not issued a Completion Certificate yet and at the time of the inspection requested the build contractor to send them an electronic copy of the electrical ECIR certificate.

 

Now the Architect/consultant is putting pressure on us the clients to start agreeing to final accounts and to pay up as the builder could do with the money.

 

 Even though we are one of the builders smallest projects which the builder left pretty much unattended for the last 12 weeks when they went off to finish off some of their bigger projects in the pre-Christmas rush.

 

As we are planning on renting this flat out as soon as we get the carpets down the 10 week delay has lost us 10 weeks of future rent which would total £2,000.  I wonder if I have any hope in getting some of that money back from the contractor who was busy making profits elsewhere.

 

I wonder if there are any success stories out there and any golden nuggets of advice to consider.

 

Maybe I should get my wallet out and speak to a lawyer; £2,000 doesn’t go very far in the legal world though 

 

Many thanks, DD 

[Ferdinand]

Could you just withhold 2k from the final invoice,  explain why, and leave them to incur the legal costs?

 

You may end up counter claiming in the Small Claims Court when they sue you.

[Ian]

@DundeeDancer

I'm not familiar with that particular form of contract. Does it specifically allow for LADs to be claimed if the builder fails to complete the work on time?

 

On other forms of JCT contract that I've used the LADs would only be claimable once the architect has issued a certificate of non completion and there are time limits that come into play.

[DundeeDancer]

@Ian

LAD aren't ruled in or ruled out in the HomeOwner contract. Not documented at all. 

Seemingly this is done to make such occurrences a negotiation point instead of heading straight for the legal teams. 

This link explains it a bit more :- http://www.recordassociates.co.uk/news/just-how-good-is-the-jcts-home-owner-contract/

 

@Ferdinand Considering the option of withholding a reasonable amount but don't think I would have the nerve to do it without seeking some professional legal advice first.  Really hoping some form of sensible negotiation occurs to get to a point which is fair to all.  

[Ian]

13 minutes ago, DundeeDancer said:

@Ian

LAD aren't ruled in or ruled out in the HomeOwner contract. Not documented at all. 

Seemingly this is done to make such occurrences a negotiation point instead of heading straight for the legal teams. 

This link explains it a bit more :- http://www.recordassociates.co.uk/news/just-how-good-is-the-jcts-home-owner-contract/

 

Thanks for the link which is helpful. On the basis of the info in that link being correct (I haven't read the contract itself) then I think it would be very difficult if not impossible to impose LADs.

 

Even in contracts where LADs are specifically mentioned they are difficult to impose on a contractor as there are 'get-out' clauses for the contractor which would allow him to claim for an extension of time eg (1)weather; (2) lack of timely information/drawing provision by you or the architect; (3) you changing your mind about anything to do with the design during the contract period etc.

Edited February 15, 2018 by Ian

[MikeSharp01]

Assuming you really - really want to do this you will need to show actual losses incurred by you and how you started proceedings in week 9, or before because otherwise the other side could argue that you did not inform them that you had started to incur additional costs / accrue losses so they took this as  meaning you were in no hurry as it were, and did not wish to enforce the end of contract date - which technically you could have done at that point and only paid for QSed' works completed up to that point. Everywhere else there are dragons I suspect.

 

My advice would be to just talk to them and see if you can meet anywhere in the middle, assuming you still have any sort of relationship.

[DundeeDancer]

@MikeSharp01 There is not much of a relationship left from my end. The build contractor has made it clear he feels he has finished on-site with handing back the keys even though we are still to go through a 3 months defect fixing period and the Architect seems perfectly comfortable arguing against anything I say, even if it is the same thing he said 2 minutes earlier. 

 

I've been pretty good at logging any issues in an "issues document" and emailing it to both parties every week which the Architect took great objection to saying it was to much to read. Well if the builder spoke to me say one a week or fix the problems then I could take items off the list and there won't be so much to read.

 

I did email them on 15th of January to say "For every extra week the project is delayed in effect means another £200 in lost earnings for us with the flat not being let out." So I set a marker down back 4 weeks ago, so that would be £800.

 

It's not so much about the money and more about being fair, honest and treating people with respect.

 

I'm not happy with being taken advantage of and them not caring that their actions (or lack of actions and carelessness) have an effect on me and my good wife.  We are not cash cows to be milked.

[ToughButterCup]

1 minute ago, DundeeDancer said:

[...]

It's not so much about the money and more about being fair, honest and treating people with respect.

[...]

 

Move on. That was then, now is now. Look forward.

[Ferdinand]

A court will require that you have attempted resolution anyway, and will base its judgement partly on who acted reasonably.

 

Perhaps talk to your architect as a first step, who should know something about these things, and have met similar before?

 

After all, he is your architect, employed by you to work for you.

Edited February 15, 2018 by Ferdinand

[ragg987]

11 minutes ago, recoveringacademic said:

Move on. That was then, now is now. Look forward.

Good advice.

 

I got myself into a contract for rendering and did not understand the consequences. In the end the costs were nearly 50% more than they had estimated. Vendor took me to small claims and the judge, while sympathetic, said he had no option but to find in vendors favour. So had to pay the balance plus court fees. And of course the mental stress on top - surprisingly it was a lot of pressure, I always thought I was good at handling that, lesson learnt.

[ToughButterCup]

1 hour ago, Ferdinand said:

Could you just withhold 2k from the final invoice,  explain why, and leave them to incur the legal costs?

You may end up counter claiming in the Small Claims Court when they sue you.

 

That makes good sense. 

@DundeeDancer, you are not in a therapeutic relationship with this builder: you aren't responsible for pointing out poor practice. And he (or she) isn't going to bother about 2K. 

[Nickfromwales]

3 hours ago, Ferdinand said:

A court will require that you have attempted resolution anyway, and will base its judgement partly on who acted reasonably.

 

Perhaps talk to your architect as a first step, who should know something about these things, and have met similar before?

 

After all, he is your architect, employed by you to work for you.

If the architect has written a response that states that they couldn't be bothered to fully read your weekly emails as they were "too long" a judge would tear a slice off them. 

Hold back £2k and tell them it's going to court if they want it. Then when they walk away, £2k the lesser but £2k penalty the wiser, use that to go on holiday.  ??