Last week I was in court as an expert witness in relation to a case between a builder and a young couple (The Homeowners) who engaged him to extend their dwelling. The case arose as a result of the builder not getting his final payment which amounted to a sum equal to approximately 5% of the “contract” price, which he believed he was entitled to and initiated legal proceeding, which ended up before the district court. Based on our initial report the homeowers made a counter claim for damages to repair defective work.
It’s fair to say there would never have been a court case, if the homeowners had engaged a professional to look after the design and supervision of their extension. The extension required planning permission, which they duly obtained, having had their drawings as it was stated in court prepared by a technical drawing teacher. The drawings were basic, with no detail, other than beginning sufficient to enable a planning application be assessed and determined.
However, the drawings had no annotation outer than a few dimensions, and were used by the homeowners to obtain quotations from three building contractors. The builder provided a quotation and was asked to start, which he duly did making up the detail as he went along in the absence of any construction drawings or specification. There was no written contact between either party. The question of how the project was financed, was never asked or established, in court, however its safe to assume it was not by way of a mortgage, in that no certificates of payment were required. However the quotation was for several tens of thousands. Before going into argument, the judge asked the builder, if the level of construction he agreed to construct was to a minimum level to meet building regulations, to which it was confirmed.
There were a number of what would be considered snagging items/minor defects, doors requiring adjusting, the items which would normally be up right before the payment of the final instalment. However there were a number of more serious issues, which would not have happened had proper construction drawings and a specification been prepared and the project supervised by a competent person.
One such item was a connection the builder made to the drainage system, which while not created by the builder, it was agreed by both sides’ expert witnesses as been a health hazard. The main area of contention regarded the construction of some minor but significant elements of structure, which were a cause of concern for us more so than that of the builder. Had the builder not deviated from the method of construction, used elsewhere within the extension, there would not have been an issue. The judge in his summary of the case stated that fact and decided in favour of the homeowers, however the award properly will not cover the cost of the remedial works.
The judge however was not too happy that the case was before him, as he said himself, he was not an expert in construction. He questioned as to why arbitration was not considered as means of resolving the issues, even in the absence of a formal writing contract. Nor was he too happy with the level of dialogue between both sides and their expert witnesses’ in that there were significant differences of opinion, something which would be quiet normal in a circuit court case. Furthermore the amount in question which the builder was trying to recoup was small and compared to costs assisted with the case; the builder was certainly 4 times well less off after the court case than he was before the case.
I certainly learnt a lot from my attendance in court; and how in preparing reports it’s important to reference and include the relevant extract of the standard in the report.
I wonder how ipads would be accepted for retrieving data on the day such as codes of practice or Irish/British or European standards, with a judge ? An iphone or ipad would certainly have been handy for both sets of expert witnesses last week.
If the builder learnt anything, it is not to build a project unsupervised as it can come back to haunt you. As the homeowners, they will know only to engage the services of a professional in future.
Monday 13 December 2010
Despite the bad weather recently, some progress has be made, with the roof now nearing completion : outstanding works comprise of the fixing of the ridge caps and some flashing to the elements of the vertical velux windows.
The delivery of the windows and doors are now due.