Disputes over building work and home repairs are unfortunately all too common. Whether it’s wiring, plumbing, roofing or construction, more…
Getting your money back from a builder
Disputes over building work and home repairs are unfortunately all too common. Whether it’s wiring, plumbing, roofing or construction, unfinished or poor quality work can result in extra hassle and cost for you to put it right.
So how can you claim money back from the contractor who put you in this position?
Most people think immediately of going to court – but before you can do this, the government requires you to go through a pre-action protocol – an out of court resolution process.
In this article, dispute resolution solicitor Nick Howell explains how it works.
In February 2017, the government introduced a new set of rules which govern the steps you need to take to resolve a dispute about construction or engineering work before you can go to court.
The rules are collectively known as the “Pre-Action Protocol for Construction and Engineering Disputes”.
They apply to unhappy customers who have a dispute with someone they’ve contracted to carry out building or engineering work for them.
This includes claiming money back for shoddy or incomplete projects.
Furthermore, although current guidance doesn’t say whether the rules apply to tradespeople pursuing customers for an unpaid invoice, I still advise my tradesperson clients to follow the same procedures anyway.
Because whether you’re a customer or a tradesperson, the new protocol aims to ensure that both sides have exchanged enough information to understand each other’s position and had the chance to resolve the dispute without going to court, saving time and money.
In the event that you do end up going to court, if you’ve followed the protocol the court is more likely to see that you’ve taken reasonable steps to resolve the dispute before issuing legal proceedings.
This is important, because if the court isn’t satisfied that you’ve been reasonable, then you may be prevented from recovering the costs of pursuing the claim – such as court and solicitors’ fees.
The court may even order that your claim is stayed (put on hold) until you’ve followed the protocol.
The costs of complying with the protocol should be proportionate to the complexity of the case and the value of the claim.
So how do you comply?
Stage one – the letter of claim
The first step is to send a letter of claim containing:
- Your full name and address as the claimant (the person bringing the claim)
- The full name and address of each defendant (the person or people who you want to claim from)
- A brief summary of the claim. This should include a list of the terms relied on and a summary of the compensation or other remedy you want to receive.
- Details of any experts you have instructed to gather or produce evidence to assist your claim
If the defendant(s) do not acknowledge the letter of claim within 14 days and/or send a letter of response within 28 days, you may issue court proceedings without following the protocol any further.
Stage two – the letter of response
Assuming the defendant does reply, their letter of response should contain the following information:
- A summary of their responses to your claims
- Any details of a counterclaim against you (if appropriate)
- Details of any experts they have instructed to gather or produce evidence to assist their defence
If the defendant alleges that they have a counterclaim against you, you have 21 days to provide a response to this.
Stage three – the pre-action meeting
The protocol says that the claimant and the defendant should meet within 21 days of the letter of response.
The meeting can be in any form. It could be a round-table meeting with one or both sides’ solicitors, or an independent mediator could be appointed to steer the discussion towards a fruitful conclusion.
Whatever the format, the two sides are encouraged to try to settle the dispute without the need for court.
If this is not possible, then the parties should try to agree how the court process will be approached (known as ‘directions for litigation’).
This includes whether it’s necessary to involve an expert and any other measures to help minimise the costs of going to court.
The number of outcomes that can be achieve following this process are countless, but the benefit is that if a settlement is reached, both parties are likely to spend less on legal costs and court fees than they would if they went to court.
Even if a settlement is not reached, each party is likely to understand the other’s position. This will hopefully lead to a smoother court process.