Suing professional for negligence but no response to proceedings

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.
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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
 
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....
 
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.
 
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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