# Suing professional for negligence but no response to proceedings



## Maryb50 (30 Jun 2017)

Hi! I'm suing a surveyor and engineer for negligence and breach of contract, but there has been no response to proceedings being issued, and neither have them have contacted their insurance companies. The insurance companies say they can't do anything until they are contacted by the engineer and surveyor. Do we eventually sue the insurance companies, or what happens? My solicitor seems not to have seen this before. Thanks.


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## DirectDevil (30 Jun 2017)

I don't mean to be pedantic but when you say that proceedings are "being issued" do you mean that your solicitor has *opened correspondence* or that actual formal legal proceedings have been *served* ?

If your solicitor has served a High Court Plenary Summons or a Circuit Court Civil Bill the proceedings are in active play and time limits start running. When the defendants have been served they have a time limit of about 10 days or so to formally acknowledge receipt of the proceedings by putting in an entry of appearance. If they fail to do this the next step is for your solicitor to proceed against them by way of a motion for judgment in default of an appearance and liability will be effectively admitted.

The insurance companies cannot force their clients to seek indemnity under their professional indemnity policies. It is unhelpful that the insurers are not involved because they are the real source of funds if your claim is valid.


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## DirectDevil (30 Jun 2017)

Hello again - I had to dash off the previous post so this is a bit more considered !

The situation described is a bit unusual. The professionals should notify their professional indemnity insurers who will decide two issues. Firstly, are they providing indemnity to their policyholders ? Secondly, if they are indemnifying their policyholders, they will carry out investigations to determine if they they going to contest or settle your claim.

I would always be worried about professional indemnity insurers not covering their policyholders. In simple terms, the insurers are the finance behind the surveyor and the engineer. So, unless the defendants have substantial means there would be no practical purpose in suing them if they cannot meet any judgment for damages and costs. The proofs for a professional indemnity case are usually onerous and would include getting other surveyors and engineers to opine on the errors or omissions of the first pair never mind the costs of putting the defective structures right (or the depreciation of the value of the property if that measure is to be used to assess quantum). You will also have a fairly hefty legal bill by the end of the process.

As mentioned above, if you serve proceedings on the defendants you can get a default judgment against them if they fail to respond to the proceedings. The convention is that if defendants fail to respond to legal proceedings they are effectively deemed to admit liability. If you get such a judgment the case will eventually proceed to a hearing to assess damages. The problem is that if the insurers are not involved you will be awarded damages and probably costs against impecunious defendants. One serious problem there is that the legal bill is actually yours to discharge to your solicitors if the other side do not pay. There are some side issues on this point but we don't need to go there presently .

You asked about suing the insurers. The parties against whom your rights of action lie are the engineer and the surveyor. I think in this type of case that you would have no direct right of action against the insurers as you have no contractual relationship with them. There could well be a different answer to this point if the proposed defendants were bankrupt as individuals or wound up if a company. I think that this latter scenario is still covered by S.62. Civil Liability Act 1961 but again you really do not want to be trekking to that particularly exotic part of the legal jungle just yet. Link for info http://www.irishstatutebook.ie/eli/1961/act/41/section/62/enacted/en/html#sec62

In short, it does not cost much to serve proceedings as a preliminary procedural step to put the skids under the defendants to show that you mean business. However, you need to be very wary about going the full distance if there is nobody to pick up the bill.

Incidentally, you should have obtained an estimate from your solicitor about the likely costs involved in dealing with this matter. They are obliged to give you an estimate for the likely cost of the work - what is known as a Section 68 letter. Link http://www.irishstatutebook.ie/eli/1994/act/27/section/68/enacted/en/html

Be careful out there - it really is a jungle. Good luck....


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## Ravima (30 Jun 2017)

How do you know they haven't contacted their insurers? If the insurers told you, then that is a breach of data protection! Your claim is against the professionals and not their insurers. If and it is an if, they are insured and they comply with Policy conditions, then their insurers will come on board. If there is any breach of policy conditions, insurers may refuse to indemnify and as others have said, you are going against individuals. If individuals, they may not be able to discharge any judgements.


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## Maryb50 (30 Jun 2017)

Hi! Thanks to you all for your replies. The engineer and surveyor won't respond to proceedings - we're going to Court presuming their admitting liability by not responding. Their solicitor's won't respond, and the insurance companies involved stated that they had not mention of proceedings from their clients, though my solicitor notified them. Basically the issue is with e40k of remedial structural work, and the engineer refusing to give certs of compliance for the house or fire certification, or refusing to answer any questions, requests for certification at all. There now seems to be some doubt as to whether the engineer actually has the qualifications he says he has, so there may be another can of worms here.

Just wondered if we obtain judgement against them, which I think we will as two independent reports were done which both stated what happened was down to negligence and breach of contract of engineer and surveyor - how is judgement enforced, and how does it affect them if they have a judgement against them. Re being impecunious - I know the surveyor is quite wealthy, but I don't think the same applies to the engineer.


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## DirectDevil (1 Jul 2017)

When formal proceedings conclude a decree will be issued. Your solicitor presents that to the defendants for payment. If the decree is not satisfied it may then have to be referred to sheriffs or whoever to try and enforce payment by seizing goods to the value of what is owed in damages and costs and interest. BTW interest runs from the day of judgment and is payable on both damages and costs.

If the sheriff gets no satisfaction you then have to proceed to secure payment by other legal means like a garnishee order or the like. Ultimately, you might have to apply to have them made bankrupt. For the latter reason your solicitor would be well advised to notify the insurers *now* in relation to S.62 Civil Liability Act 1961 so that you could subsequently proceed directly against the insurers in the event of bankruptcy. Your solicitor and counsel will know what to do in this respect. The reason I emphasise that you attend to notifying the insurers now as I suggested is to preserve your position at a later date against the insurers.

BTW if neither defendant appears in court you should get a *joint and several j*udgment against both of them. The benefit of this is that you can levy the judgement against either of them in full. So, if the surveyor is wealthy he can be stuck with the entire judgment and it then falls to him to go against the engineer for and indemnity or contribution but that is not your worry.

In view of the quantum involved this appears to be a Circuit Court case so the legal fees will be as horrendous as if it was a High Court case.

P.S.  AFAIK surveyors must carry professional indemnity insurance as a condition of membership of the relevant professional body. I would consider a complaint to their professional body on the basis of their conduct. Unfortunately, I do not know the position in relation to the engineer whom I suspect to be a structural engineer. If you have headed notepaper from the engineer it will probably display his qualifications. If you have doubts about those qualifications you might approach the bodies who conferred them for verification.

P.P.S. I must correct my Freudian slip !! Circuit Court fees are *NOT* as potentially horrendous as High Court costs .


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## Brendan Burgess (1 Jul 2017)

If they are members of professional bodies, it may well be worth while making a complaint to their body. 

At this stage, it would be just a complaint that they have not responded to your correspondence. 

Brendan


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## Maryb50 (26 Aug 2017)

Hi! Just to give you an update. The Engineer's insurers are involved, as my solicitor notified them. They appear to want to settle without going to Court.


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## Ravima (27 Aug 2017)

The only compulsory insurance in Ireland is Motor insurance (for Third Party injury/damage). I merely point this out that the fact that your solicitor notified them means nothing. If the engineer is in breach of his policy conditions, they will not indemnity him.

If by yesterday's post, you say they want to settle the case, then you are more than half way there!


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## Maryb50 (30 Aug 2017)

Hi! Again, apparently things have taken a step back. The original engineer who made the mess up, is refusing to sign certification for planning, though he applied for the planning. He is also refusing to sign Cert of Compliance with Building Regulations Part A-M. Is this  not illegal? We are now looking at how t calculate devaluation in my house as a result of this, or that's what the Barrister said we should do  - as well as remedial works - but no one seems to know who does this calculation - is it an auctioneer? I'm hoping someone here will know.


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## Ravima (30 Aug 2017)

Maryb, are you SURE that his insurers are dealing with the case? Your latest post worries me. If the insurers are nOT involved, you are possibly wasting money as you might not recover any judgement.


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## Maryb50 (30 Aug 2017)

Hi! Ravima, my solicitor tells me they absolutely are involved. He says he knows some who knows this solicitor and she works for the engineer's insurers. I think that not wanting to sign the Certs of Compliance with planning and building regulations is about not wanting to be responsible for any latent defects in the building. They want a full and final settlement. I am saying that they can't have one as I don't know what other defects from the engineer's mess up will crop up in the future. My solicitor wants me to accept the deal. My new engineer said I can't waive my right to sue again if other defects become apparent. In any case, my new engineer won't give me a Cert of Compliance for the work that they are not remedying, or for compliance with planning, so that still leaves me having no Cert of Compliance with planning or building regulations. Any advice/comments appreciated!


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## peteb (31 Aug 2017)

Maryb50 said:


> Hi! Ravima, my solicitor tells me they absolutely are involved. He says he knows some who knows this solicitor and she works for the engineer's insurers. I think that not wanting to sign the Certs of Compliance with planning and building regulations is about not wanting to be responsible for any latent defects in the building. They want a full and final settlement. I am saying that they can't have one as I don't know what other defects from the engineer's mess up will crop up in the future. My solicitor wants me to accept the deal. My new engineer said I can't waive my right to sue again if other defects become apparent. In any case, my new engineer won't give me a Cert of Compliance for the work that they are not remedying, or for compliance with planning, so that still leaves me having no Cert of Compliance with planning or building regulations. Any advice/comments appreciated!



I know you want to get some answers, but why are you barking when you've bought a dog?  You hired a solicitor.  Surely he should have all these answers.


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## Seagull (31 Aug 2017)

Get the current engineer to give a quote to get all the paperwork in place and do full remedial works. That should be your starting point for the settlement amount.

Did you ever find out if the original engineer is a member of any professional body?


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## Ravima (5 Sep 2017)

_He says he knows some who knows this solicitor and she works for the engineer's insurers. I think that not wanting to sign the Certs of Compliance with planning and building regulations is about not wanting to be responsible
_
I think you need something a bit stronger than this from your solicitor. Just because a solicitor does work for *AN* engineers insurers, does not automatically mean that the solicitor is doing work for *YOUR* engineers insurers.

Peteb is on the ball when he suggests your solicitor should have these answers.


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## Maryb50 (7 Sep 2017)

Hi! Thanks for all the advice/comments. I'm afraid the situation looks gloomier, as the barrister has probed further.  As the engineer made a mistake on planning and we had to apply for retention, meaning that the renovation should have gone for planning first off, and a commencement notice should have gone in - we will probably find it very difficult to sell our house in the future, and people will find it difficult to raise a mortgage on it. So, it looks like it will be a High Court case, against the Engineer and also the builder, who should have recognised the issues - as far the surveyor - I'm not sure about this yet.


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## Ravima (9 Sep 2017)

If builder was doing the work under supervision of your engineer, where did builder go wrong? 

Anyway, position is still the same, are the insurers involved. Your solicitor should have absolute certainty in this as if there is no insurance, you will have to pay a substantial amount of legal and other bills to get case to court.


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## Maryb50 (21 Sep 2017)

Hi! Ravima, saga still goes on. Just two weeks ago, our new extension roof collapsed - 16 months after it was completed! Luckily it happened when we were out, and no one was injured. It appeared there was rotting from condensation as insulation was not put in correctly. We have had to get the works done and get another mortgage. Current bill for all 70k. Someone mentioned engineer's professional body - we did this - it seems engineer didn't even do planning search, didn't supervise the works hardly at all, allowed the builder to give certs for radon when none was put in. Did not do a loading for the structure. Passed electrical work - sockets etc completely wrong all over house, even though against building regulations. Reported that three was a new foundation put in, when there wasn't - investigative work just done. Had provided me with a grossly insufficient contract, had not done Health and Safety Documentation for the renovation, and the most offending thing to his professional body was that he refused to give us the Certs of Compliance unless (which are now useless), unless we withdrew our complaint from his professional body.  Re. my solicitor, I feel I have to do most of the running re reports from new engineer and QS report, my solicitor will often take quite a while to follow up on this stuff -even when we have asked a few times - we feel so stressed by it. Wonder if new solicitor would make any difference?


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## PaddyBloggit (21 Sep 2017)

Maryb50 said:


> Wonder if new solicitor would make any difference?



Perhaps .... you need to get your advice from a professional you can trust 100%.

Looking for advice on this matter from an online forum is certainly not going to solve it.

You have serious issues that need sorting. It looks to me that you're going around in circles.

If your solicitor can't handle it, then yes, it's time to look for one who can.


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## Ravima (21 Sep 2017)

PaddyBloggit has summed it up in 4 sentences. I would add a 5th - are there Insurers involved? this is what I have asked from the start. If there is NO insurer involved, how do you expect to get money?


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## Maryb50 (21 Sep 2017)

Thanks, Paddy Bloggit and Ravima - I think I will just change solicitors to someone I feel is more competent and less laid back, though it's hard to judge this on a first meeting. 

In relation to insurance - there is a QS involved for the other side, according to my Barrister, he is working for the insurance company. They are making moves to settle, contacting my QS, raising queries on works carried out so far, and looking for fee notes from 'professionals' involved in my case, but still nothing in writing to say the insurers are involved, and still no certs of compliance or planning cert.


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## DirectDevil (23 Sep 2017)

So sorry to see that this has turned into a bigger nightmare for you. I am horrified by the structural failure - more evidence, if it was needed !!

Solicitors dealing with litigation cannot always hurry it up as it does grind on slowly at some stages. Changing solicitors at this stage could be a major source of additional stress as you have to start from the beginning with them and they might not be much different. The previous work done should not be a waste of time however.

If settlement proposals are to be advanced eventually it would be preferable to have a settlement meeting involving your solicitor and counsel and their counterparts for the defendant(s). Ultimately, it is the barristers who will knock out the final suggested deal so don't worry too much about the solicitor.

My breath is taken at the arrogance and audacity of the engineer's proposition about withdrawal of a complaint to the professional body. Au contraire, I would be thinking *very seriously* about an additional complaint to the Gardaí for _fraud_ and associated offences and possible _reckless endangerment.
_
*Once you have got definitive confirmation that there are professional indemnity insurers actually formally involved for the engineer you should be alright*.


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## T McGibney (23 Sep 2017)

DirectDevil said:


> My breath is taken at the arrogance and audacity of the engineer's proposition about withdrawal of a complaint to the professional body.



Do you really consider that it would be appropriate or ethical for a professional to complete certification work for a client while that client has a current professional malpractice complaint filed against him?


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## Maryb50 (24 Sep 2017)

TMcGibney, the original engineer is being asked to certify the work he oversaw which doesn't need remedial work - which at this stage is minimal, and to certify the planning, which is through, and drainage issue sorted, but he is delaying sending in the letter from drainage into planning - which is only a formality. The new engineer is certifying all the structural remedial work, but I am not happy to have two engineers certifying the project, as I think it looks bad if I ever sell - opinions on this would be very welcome. 

Also, just a few days ago, another issue arose, again related to the foundations. The new builder, under the new engineers instructions, drilled down into the foundations. They discovered that the builder, against specification, and just used the old foundation, and  in the part of the extension where there needed to be a new foundation, he used infill which included the asbestos roof of an old garden shed - I had specifically stated and discussed that this was to be disposed of appropriately according to regulations, and believed that this had happened, but apparently not. Despite this, the new engineer states that the foundations are satisfactory, but, nevertheless, the foundations were not completed as specified, and an old asbestos roof - roughly 12 x 6 was put in to the foundation infill- I am  not entirely sure what this means, but I am not comfortable with it at all. If anyone knows about such issues, I would be grateful for your comments/advice.

Re Fraud and Reckless endangerment - I would consider this - is it possible to make a complaint to Gardai re this?


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## T McGibney (25 Sep 2017)

Maryb50 said:


> TMcGibney, the original engineer is being asked to certify the work he oversaw which doesn't need remedial work - which at this stage is minimal, and to certify the planning, which is through, and drainage issue sorted, but he is delaying sending in the letter from drainage into planning - which is only a formality.



Nothing is ever a formality in an environment of legal proceedings and professional misconduct complaints.  I cannot see how you can engage a professional to do certification work for you, or more particularly how he can accept the engagement, when you are in the process of suing him, as it raises all sorts of questions about his independence if he were to undertake this work.


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## DirectDevil (29 Sep 2017)

T McGibney said:


> Do you really consider that it would be appropriate or ethical for a professional to complete certification work for a client while that client has a current professional malpractice complaint filed against him?



I see your point.

I would regard it as highly preferable to discontinue all further instructions to the individual being sued. On the one hand negligence is being alleged against the professional. On the other hand the plaintiff client seems to be continuing instructions to him to complete a specific aspect of the job. Although not entirely detrimental to the plaintiff's case this could look strategically weak and a bit odd. IMHO the professional's instructions should be withdrawn completely and all aspects of his work called in to question. *All* of his work should be reviewed and completed by the new expert.  To accept some of his work now could impliedly give him a tacit degree of approval. Ultimately, the trial judge could find that some of his work was *not* negligent but there is no point in handing it to the defendant on a strategic plate !


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## DirectDevil (29 Sep 2017)

Maryb50 said:


> SNIP SNIP Re Fraud and Reckless endangerment - I would consider this - is it possible to make a complaint to Gardai re this?



Yes.

There is absolutely no reason not to report this to the Gardaí now. It might be easier to get your solicitor to formulate and forward the complaint to the Gardaí on your behalf. Legally you are quite entitled to make the complaint yourself. I suggest your solicitor to try and take some pressure off you.


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## DirectDevil (29 Sep 2017)

Maryb50 said:


> SNIP  he used infill which included the asbestos roof of an old garden shed - I had specifically stated and discussed that this was to be disposed of appropriately according to regulations, and believed that this had happened, but apparently not. Despite this, the new engineer states that the foundations are satisfactory, but, nevertheless, the foundations were not completed as specified, and an old asbestos roof - roughly 12 x 6 was put in to the foundation infill- I am  not entirely sure what this means, but I am not comfortable with it at all. If anyone knows about such issues, I would be grateful for your comments/advice.



It is a while since I dealt with asbestos related matters. However, there are quite a number of regulations regarding asbestos including the *manner* of it's disposal, *who* *can remove it* and even *who can transport it* to an approved site. It is a highly hazardous material when disturbed. Unless the builder has some rare legal argument about burying the asbestos in concrete in a way that lawfully "encapsulates" it he is probably severely out of order.

My suspicion is that the builder interred the asbestos under a concrete foundation to save the price and trouble of having it disposed of lawfully and properly. Even people drilling down in to the foundation to assess it are actually being exposed to a potential asbestos hazard created by the builder. This aspect of matters is very awkward and requires deft handling to avoid any legal exposure to you arising from this situation. There are a number of consultants or contractors who specialise in asbestos matters. It may be necessary to retain one of these people to survey and advise as to what you might do on this specific aspect of matters.

Sorry to appear to have nothing encouraging to say every time I post but you really have had quite the most desperate misfortune with this project. At this stage you are probably dreaming that when you are all out that Kim Jong-un, aka  Rocket Man, would just land one on the house and flatten it thus allowing you to start all over again. 

Courage............


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## Ravima (29 Sep 2017)

Maryb, this is, I hope, my last comment on your post. 

You appear to have a serious problem. However, you have not yet confirmed if there is insurance or not. If there is NOT, then the more problems you fine, the more expensive it will be FOR YOU. The asbestos issue must be sorted and rectified. Each time we seem to have advances somewhat, you are finding a new problem. The more you find, the more you must have fixed.

I do hope you get sorted. You seem to have a solicitor involved and have an Opinion from someone, I do not know if that person is a BL or SC or holds some other qualification. You seem to have an (new) engineer who is dealing with some of the issues and you want the (old) engineer, one of those you are litigating against to do work for you. You are asking for advice re reporting to Gardai.

What does your legal team advise? Surely you are taking their advice. If not, have you mentioned that fact to them?

I'm getting lost in the train of thought.

Good luck in your case.


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## Maryb50 (29 Sep 2017)

Hi! All thanks so much for the replies. I got the asbestos rectified - it was in a new part of the foundations - to remove it and re do the foundations in that part of the building cost 8k - never mind the other expenses. We were living in the building when this was being done - so give dust and disturbance - it wasn't ideal. I don't know what price you can put on this in Court proceedings!

Just to give a reason why the original engineer is being asked to provide certs. The original engineer made a huge mistake on planning - in fact such a basic mistake that people's jaw drops when I tell them. Anyway, he agreed to do retention for free. However, the final grant of planning/retention had a condition attached to it. He was supposed to send in documentation re this condition, but refused to do so unless we withdrew our complaint from his professional organisation. He eventually did so under threat of proceedings, but then the Department in the Council which wanted this condition fulfilled, asked him to send a letter of agreement from them to Planning, and he would not do so. It is only him that can send it in as he was the agent, so as far as planning are concerned, one of the conditions attached to the retention grant is still outstanding several months later, when it was supposed to be dealt with in a month. The other reason we wanted some certification from the original engineer, is that the new engineer cannot give complete certification as he was not the engineer on the job, and he can't open up every where, though to me, it seems as if there isn't much of our house left to open up, but to be honest I don't want the original engineers name any where near my house if possible. 

Quesiton: Re reporting it as fraud and reckless endangerment to the Gardai - when I said this, they said it was a Civil Matter - would it be different if my solicitor wrote to the? It was definitely fraud - for instance the guy gave certification for radon barrier when there was no radon barrier there when foundations were drilled to investigate. He also provided a specification for the foundations in his drawings, and told me that there was no foundations under the original extension, so new ones had to be done, but when the new engineer investigated, he found that they just built on the foundations that were already there - the old floor slab - which the new engineer, was not entirely happy with, but said he would note it as satisfactory, and the old engineer stated he was chasing his builder for pyrite certs, when there was actually no hardcore in the foundations - so lots of lies! So I now have no cert for foundations - though noted as satisfactory. If we wanted a Cert for the foundations, we would have to dig up our entire extension, removing all the new kitchen units, and move out for a couple of weeks, and it would cost 30k - though I am suing for this, so hope to be in a position to do redig these foundations in the future. 

Also, I am hoping to recoup the amount the builder charged me for new foundations, when there clearly were none, and for his invoice for disposing of the asbestos, which clearly didn't happen, and the engineer's fees for supervising the building works, which he clearly didn't do, as there are no photos of the foundations as they are being finished, and the permitted building over the original foundation/floor slap, when the contact was for new foundations . I really don't know how they thought they were going to get away with all this.

Re my solicitor - he's very hit and miss, but all my family have gone to him over last 30 years or so.


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## DirectDevil (30 Sep 2017)

The Garda response is just typical, lazy and unacceptable.

Some matters have a dual personality i.e. a civil aspect and a criminal aspect. It is not unusual for Gardai to default to the standardised reply that "this is a civil matter" or that "this is a matter to be left to civil remedy".

The Gardai are right when they say it is a *civil* matter. However, there are also potentially *criminal* dimensions here and that is what they should investigate. Maybe they feel that the complexity of it is beyond them .

Procedurally, the Gardaí should investigate and send a file to the DPP. It is the DPP who decides whether or not to prosecute and on what charges.

My last word on this aspect of matters is to get your solicitor to send a formal complaint to the Gardaí about the potential offences that arise and to have it investigated.


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## PaddyBloggit (1 Oct 2017)

Maryb50 said:


> Re my solicitor - he's very hit and miss, but all my family have gone to him over last 30 years or so



Not the best of reasons to hold onto a solicitor if they're not doing a good job for you.


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## Maryb50 (4 Oct 2017)

Just received a 10k bill for engineer for remedial work supervision, certification etc - work grew and grew. My partner feels we shouldn't go any further in legal process - bill stands at 78k for all the work - as we may never see the money, and the stress has been terrible on our family. My sister seems to think the same. They think I should agree to us taking the hit, though we still don't have complete certification, just certs for remedial work. Comments/advice welcome.


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## Seagull (4 Oct 2017)

How to proceed still comes down to the single basic question - does the initial engineer have professional insurance? Are they engaged in the process? If yes, then there is benefit in continuing with legal proceedings.


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## Maryb50 (4 Oct 2017)

Yes, the initial engineer does have professional insurance, and there is confirmation that they are engaged in the process. However, some builders liability also, though mostly engineers. Builder has insurance but not sure whether it covers it - I think it may be all risks. All so much stuff to go through.


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## Seagull (5 Oct 2017)

The builder that used the asbestos as infill is the one liable for the costs involved in remedying that. I'd be surprised if his insurance covers something like that.


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## Maryb50 (5 Oct 2017)

The engineer was supposed to supervise and take pictures of the new foundations - the bit there was - no pictures and no supervision. The engineer and builder tried to present a fake pyrite cert, when there was actually no hardcore in the infill - initially anyway, until remedial works. The engineer also didn't put in any HSA documents for removal of asbestos shed, though he agreed this cost with the builder - so I don't know really who is liable - again law is picky, but solicitor wants to sue both, builder personally and his company. Builder has assets.


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## Maryb50 (2 Nov 2017)

Just looking for some more direction on the above from non-legal persons, as my head is fried with all the legal advice! All  remedial works have now been completed on my house to a cost of 74,737 -  but my new solicitor - I had to change as I felt I was actually doing my own solicitor's job for him, including at one stage, filling in my own Civil Bill! My new solicitor thinks the case should be heard in the High Court for these reasons: 1) my house will be devalued by having no commencement notice - engineer made mistake on planning, and we had to apply for retention; 2) we have no certs for the foundations. The engineer said new foundations were being put in, but when trial pits are opened up, 8/10 of the extension was build on the old foundations, which the new engineer said were absolutely fine, and the remainder was a new foundations, which was also fine; 3) there was no radon barrier put in, although this was in costings. The original builder and engineer left in the old foundations, which was against plans, and so no radon barrier inserted - however, we do live in a very low risk area for radon; 4) I won't have full certification/the usual certification for my house - the new engineer is stating that he is certifying that he completed works on my recent building project including the insertion of steel beam in the attic, steel supports in the kitchen, and works to warm roof structure - the attic conversion was a new addition to the house, and the extension was rebuilt by original builder and engineer, but he is not certifying the original house, or offering an opinion of compliance on it - the original house had new wiring, plumbing and insulation, but there was no material change to it's structure. My own preference is to go the Circuit Court route, and try and get as much money back as possible with the least expense. I know High Court fees are horrendous, but if I claim for devaluation of my home, it will push me into High Court fees, and delays, as I understand it can take two years to get to the High Court. I really don't want any more of our lives taken up with this issue. Just wondering would others sue for possible devaluations of their house?


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## PaddyBloggit (3 Nov 2017)

Maryb50 said:


> Just wondering would others sue for possible devaluations of their house?



I wouldn't but then I'd be happy with getting things sorted at a loss so I could move on from the whole thing.


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## Maryb50 (3 Nov 2017)

Hi! Paddy Bloggit, thanks for your reply. That's exactly what I think. I would just be happy to move on from the whole thing, and get my money back, hopefully, for the remedial works carried out. It's not worth the stress to me or my family to sue for devaluation - especially in the last few years that my children will be at home before college - I want to enjoy these last few years with them.  My cousin who trained as a Barrister, but lectures in law now, rather than working as a Barrister, said that in 15 years time if the house is still standing, - it's my lifetime/retirement house -  and no issues have emerged, and it is in compliance with building regs and planning, which it now absolutely is, that she could  should be no issue with selling the house, and actually the remedial works have made it a super safe house to buy, as there has been so much opening up work to confirm that all was ok. She also made the point that in her experience, many people lose their original Cert of Compliance through the years, and have to resort to getting an Opinion on Compliance for sale many years later, and this actually happened to me with the sale of our last house, though I will have an actual Cert of Compliance for the works on this house. Again, thanks for your reply - I thought I was the only one, who many would think quite mad, not to want to pursue the issue to the last cent - my sanity and quality of life are always more important for me, though I don't want to be a complete pushover with this either.


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## DirectDevil (3 Nov 2017)

Seagull said:


> The builder that used the asbestos as infill is the one liable for the costs involved in remedying that. I'd be surprised if his insurance covers something like that.



You might well be right there.

I noticed recently that one major underwriter of commercial public liability insurance now excludes any claims arising out of asbestos


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## DirectDevil (3 Nov 2017)

A few thoughts.

The issue of the measure of damages is not that simple. People readily assume that the measure of indemnity should be the costs of repairing the defects. This is not always so. There are strong arguments to say that the measure of indemnity is the value of the depreciation caused by the negligence of the defendants but incorporating a reflection of the repair costs. I would approach the issue on the basis of claiming the repair costs *AND* the measure of depreciation suffered. I suggest this as these are both losses that flow naturally and directly from the negligence of the defendants. You can proceed this way legitimately without being pinged for seeking a double indemnity.

The question of jurisdiction arises. The way this has gone it is definitely a High Court case. Presently, the jurisdiction of the Circuit Court is €75,000. By issuing Circuit Court proceedings you waive the excess of your claim over €75,000. I understand your anxiety to get this sorted asap. However, you might not have to prejudice your position so easily. I assume that proceedings have not yet issued. I would instruct my solicitor to ask the defendants to consent to trial in the Circuit Court with unlimited jurisdiction. Alternatively, if they will not agree, I would issue High Court proceedings and then remit the case to the Circuit Court. Conventionally, High Court cases remitted to the Circuit Court are supposed to be tried with unlimited jurisdiction.

I am not attracted to the argument that says that you do not intend to leave the house in the near future anyhow. Respectfully, I think that this is false comfort, a gamble and a bad idea. Although there is no intention to move, the fact is that life circumstances can change unpredictably and you might find yourself needing to sell for reasons that you never imagined. In that scenario the ghosts of the history of the house will return and may bite badly. Whether you stay or go you still need to be "made whole" again for the full extent of your losses as that is actually your legal entitlement.

In relation to quantum I would be inclined to get two valuations of the house as it stands on the basis of full disclosure of *ALL* of the problems and deficiencies. I think that would be interesting to give you a sense of what you have actually suffered in terms of loss of value. You will probably be advised by counsel to get this evidence which will be required anyhow to stand up the measure of this aspect of your losses.

And finally, whatever the insurance position, proceedings should be issued against* ALL* parties involved with this affair. i.e. they should all be named as co-defendants.

I hope that this war comes to an end soon and that you will have some peace....


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## Maryb50 (3 Nov 2017)

Dirt Devil, thanks so much for your informative post. I think I am really afraid of the High Court costs. I didn't know that it was possible to consent to unlimited jurisdiction in the Circuit Court. My barrister is adamant that it should be tried in High Court. I see what you mean about losses going forward, but the stress of this has been unbelievable, and I resent far more the impact on my family and I than I do the loss of money. I have been told it could take two years to get into the High Court, and I really need this money back sooner than that as my eldest will be in college in two years. 

Just a question, who can calculate the loss in value of my house, or how would it be calculated? Would an auctioneer state that if the history of the property was know, the value of the house would be down by a certain percentage? I feel I will not truly know this until I go to sell.


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## DirectDevil (4 Nov 2017)

Maryb50 said:


> Dirt Devil, thanks so much for your informative post. I think I am really afraid of the High Court costs. I didn't know that it was possible to consent to unlimited jurisdiction in the Circuit Court. My barrister is adamant that it should be tried in High Court. I see what you mean about losses going forward, but the stress of this has been unbelievable, and I resent far more the impact on my family and I than I do the loss of money. I have been told it could take two years to get into the High Court, and I really need this money back sooner than that as my eldest will be in college in two years.
> 
> Just a question, who can calculate the loss in value of my house, or how would it be calculated? Would an auctioneer state that if the history of the property was know, the value of the house would be down by a certain percentage? I feel I will not truly know this until I go to sell.



Personally, I would get a valuation from Lisneys and another one from Sherry Fitz. I would get the valuations done separately so that they are truly independent perspectives. They are reputable names in the private house market and I would expect their opinion to carry weight in court.

As regards the actual loss in value you would be looking to establish the difference in the value of the house as it *now* stands (or as it stands at date of trial or settlement) with the *full* history of the "development" works disclosed versus the value it would have had if it had been "developed" correctly.

In relation to costs the position is that if you negotiate a settlement you should insist on your legal costs being paid in addition to damages. That would be quite normal. Some defendants try to offer inclusive or global settlements of a lump sum to include costs but I would not accept that in this case. Alternatively, if the case goes to trial it is actually the trial judge who decides the issue of the awarding of costs.

I see what you say about your previous solicitor. Therefore, I would ask the present solicitor to check that the standard *O´Byrne letter* was issued to the various defendants before proceedings were issued. If proceedings have not yet issued your present solicitor should know to do this. The O'Byrne letter is a technicality relating to costs where there are two or more defendants and it is important.

I readily appreciate the stress element. That is why your claim should include an element seeking general damages to reflect this matter which is, properly speaking, something of an injury.


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## Maryb50 (5 Nov 2017)

Direct Devil, thanks so much again for your reply - very clear and very helpful. My previous solicitor did send out what I think is an O'Byrne letter - and I forwarded this on to my solicitor yesterday, i.e. about the liability for each of them for their costs.  Re Lisneys and Sherry Fitz - from previous business dealings, I know someone in both companies, and will ask on Monday re who they would recommend do advise on depreciation due to what has happened. Actually, my solicitor contacted me yesterday - I had sent her the emailed O'Bryne letter but had not expected to get a response until Monday - she told me that actually my new Engineer was not  correct when he said the extension did not come under BCAR as the extension was under 40q metres, but that the extension should have come under BCAR as there was a previous, before my time, 40sq metre extension to the side, and extensions to the house are cumulative - the original engineer knew that there was a 40sq metre extension previously to the side, but told me I could rebuild the unauthorised 40sq metre extension at the back, extending slightly beyond the line, and still keep my exemption. My solicitor said that because it was absolutely supposed to come under BCAR, I could find it very difficult to sell my house even in 20 years time, as there was no commencement notice, and it is therefore not on any public register, and there is also no compliance cert listing the compliance to each part of the Building Regulatioins. She states that this would make it very difficult for anyone other than a cash buyer to buy the house, and that she feels may now be limited to site value only.  Interestingly, my previous solicitor had said sure any one can do up a Cert of Compliance when the house is being sold, but my new solicitor says that she would advise her clients to be very careful now if there was no commencement notice, and about buying a house which was supposed to have documentation under BCAR but didn't. Not the type of news one wants to get on a weekend, but it definitely clarifies things!


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## elainem (12 Nov 2017)

advice on engineering


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