Suing professional for negligence but no response to proceedings

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.
 
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.
 
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.
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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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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?
 

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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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?
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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 !
 
Maryb50 said:
SNIP SNIP Re Fraud and Reckless endangerment - I would consider this - is it possible to make a complaint to Gardai re this?
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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.
 

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............
 
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.
 
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.
 
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.
 
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.
 
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.
 
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.
 
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.
 
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.
 
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?
 
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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