Builder dispute with neighbour

keystone

No - lets stop this because its going needlessly round in circles and is starting to look like a point scoring exercise.

The question totally hinges on whether you consider the builder to be an employee of the OP in which case he certainly might be liable or whether OP has employed him as an independent contractor. I believe it is the latter - you appear to believe it is the former. If it was the former you would be 100% right as to OP's liability. I do not believe their relationship to be as you do so in that respect I'm sticking with my opinion I did say we have to agree to disagree did I not?

As far as Alcock v Wraith is concerned the important part in LJ Neill's statement that I quoted is "in the ordinary way". I am familiar with this only because I got caught up on the periphery in a similar case four or five years ago so didn't make use of Uncle Google to make my point.

Every case is different which is why OP needs to consult a lawyer if he is at all concerned. As I said its decided on balance of probability in a civil tort and these can easily swing one way or the other.

Cheers

Edit: I see your edit agrees with me as it being a general principal which is the point I was trying to make in a similar situation.

indigo739X

No matter who is liable, if this matter went to court, costs would be met by the insurance, surely. However I doubt the neighbour would succeed. No proper record was made by the neighbour and the dispute was raised after the evidence had been removed.

Furthermore it seems that a perfectly reasonable offer of compensation has been made. Chances are the court would look very poorly on any case being pursued.

keystone

indigo739X wrote: »

Chances are the court would look very poorly on any case being pursued.

keystone wrote: »

I think if the neighbour took this to court he would get well and truly spanked by the Judge

Quite

Cheers

DVardysShadow

indigo739X wrote: »

No matter who is liable, if this matter went to court, costs would be met by the insurance, surely. However I doubt the neighbour would succeed. No proper record was made by the neighbour and the dispute was raised after the evidence had been removed.

Furthermore it seems that a perfectly reasonable offer of compensation has been made. Chances are the court would look very poorly on any case being pursued.

If it went to court, it would depend against whom. If it was against OP, OP would have to pay - possibly his buildings insurance might cover him - and the Insurer would in turn sue the builder - who would probably settle out of court and not involve his insurer.

The neighbour's case would fall down

• in the first instance on poor evidence of the fact of any damage - except that the builder has already admitted this.
• Secondly, the neighbour would get a bit of a bruising for a claim in excess of the extent of damage which both OP and builder would give witness to.
• Thirdly, the neighbour is claiming not only for too much damaged fence but by replacing the whole fence, she has effectively admitted nearly 100% betterment on the damaged fence
• Fourthly there is already an offer in place exceeding the damages which a court is likely to award.

The result would be bruising for the neighbour, but essentially she would get a judgement and an award for the damaged fence, plus a lecture for wasting court time - but have to pay all costs

Where this becomes problematic for OP is that the neighbour could put the case against him - and win - with all the caveats above. If OP goes into this in denial as to any liability, he will lose - and without 'fourthly' above, although the neighbours claim will be trimmed down, OP will be bearing costs.

If neighbour fancies her chances, her best bet is to go against OP for as long as OP does not make a reasonable offer to settle.

DVardysShadow

keystone wrote: »

No - lets stop this because its going needlessly round in circles and is starting to look like a point scoring exercise.

The question totally hinges on whether you consider the builder to be an employee of the OP in which case he certainly might be liable or whether OP has employed him as an independent contractor. I believe it is the latter - you appear to believe it is the former. If it was the former you would be 100% right as to OP's liability. I do not believe their relationship to be as you do so in that respect I'm sticking with my opinion I did say we have to agree to disagree did I not?

As far as Alcock v Wraith is concerned please don't try and be clever. The important part in LJ Neill's statement that I quoted is "in the ordinary way". I am familiar with this only because I got caught up on the periphery in a similar case four or five years ago so didn't make use of Uncle Google to make my point.

Every case is different which is why OP needs to consult a lawyer if he is at all concerned. As I said its decided on balance of probability in a civil tort and these can easily swing one way or the other.

Cheers

keystone, you thought you scored some points by citing Alcock v Wraith, but now it has turned out the judgement is the opposite of the Neill soundbite, it's sour grapes. I thought better of you. And it is not going around in circles except to the extent that you are trying to turn it back around to the OP not being involved in the face of the judgement in the very case you cited.

This is important to the OP, because you are inviting him to think [wrongly] that he bears no responsibility and can abdicate from the situation - and then you are suggesting that he consult a solicitor, rather than yourself acknowledge the outcome of Alcock v Wraith and the likely application to the OP

Neill did indeed state as you say, but you seem to have taken him out of context - he stated the general principle and went on to state the exception resulting in the judgement which is reported as

The court found that the property owner was liable to the neighbour even though it was his builder that was at fault.

I don't give a damn about scoring points. I do give a damn about relaying the important ruling of this court case which has a direct bearing on how the OP should approach his problem.

I would agree with you if OP had engaged a carrier to take a parcel to some address and OP was facing a claim for a road accident on the way. In such a case the whole business of transport of the parcel could legally be delegated to the carrier.

But in this case, the duty of a property owner not to allow any nuisance to emanate from his property is non delegable.

keystone

No I told him to consult a lawyer a long way up the thread and have not just introduced that as a wriggle because you may think you have got me in a corner and I am not telling him that he can abdicate any responsibility. What I am saying is that I do not believe he has any as his builder is not an employee he is an independent contractor in my opinion from what he has said. I could also quote a number of other LJs (including Denning and Somervell) if I wanted which supported the principal I have stated in similar cases but don't see the point.

There is no case law in civil actions so whether you consider the case that I intoduced as an important case that bolsters your argument is quite irrelevant - its balance of probablility in a civil tort on a case by case basis.

So right now I'm out of this thread (but not with my tail between my legs) because its getting to the stage where it is probably confusing the poor old OP to death. We are talking about a fence here not wholesale property destruction.

Cheers

DVardysShadow

keystone wrote: »

Edit: I see your edit agrees with me as it being a general principal which is the point I was trying to make in a similar situation.

Something of an attempt to get the facts across without grinding your face in it too much. I'll accept the general principle, but it is the exception which applies here. Allcock v Wraith is the directly applicable judgement which would probably be cited by neighbour's brief if OP tried to defend by saying "Not me guv', it was the builder"

keystone wrote: »

No I told him to consult a lawyer a long way up the thread and have not just introduced that as a wriggle because you may think you have got me in a corner and I am not telling him that he can abdicate any responsibility. What I am saying is that I do not believe he has any as his builder is not an employee he is an independent contractor in my opinion from what he has said. I could also quote a number of other LJs (including Denning and Somervell) if I wanted which supported the principal I have stated in similar cases but don't see the point.

There is no case law in civil actions so whether you consider the case that I intoduced as an important case that bolsters your argument is quite irrelevant - its balance of probablility in a civil tort on a case by case basis.

So right now I'm out of this thread (but not with my tail between my legs) because its getting to the stage where it is probably confusing the poor old OP to death. We are talking about a fence here not wholesale property destruction.

Cheers

Of course there is case law in civil actions and it is not to be confused with matters of fact which is a totally different dimension to any case. A judge decides on matters of Law, whether it is Common, Statute or Case law. A jury decides on matters of fact and the standard of proof on matters of fact for civil cases is 'balance of probability'.

The matters of law which could be determined are whether Allcock v Wraith applies [can OP be sued as property owner in preference to builder]. The matters of fact to be determined are whether and to what extent the fence was damaged and whether this was as a result of the building works.

As for confusing OP, it is a fence, but the scale of destruction is not the issue so much as whether OP could be held liable for the actions of his builder. As long as OP understands that he could well be - on the basis of the case law you cited - he will not have been misled.

clutterbug_2

I'd just tell the neighbour that it is between them and the builder, but seeing as it was £3500 to replace 30 panels (£166.66 each), yet the builder only damaged 4 panels (total of less than £500), which by admission of the neighbour was in need of replacing anyway, they were lucky to get £750 offered by the builder!

DMWK

Well, this has indeed prompted some healthy debate! Thank you all for the time you have spent considering this situation and the various pieces of advice offered.

For what it's worth I don't think our neighbour is inclined to take legal action against us or the builder. She's acted in quite a civil manner throughout and we've had various discussions with her on the subject. She recognises that she made mistakes by not obtaining any evidence of the extent of the damage and failing to inform our builder that she was going to get her own contractor to do the replacement work but, more importantly, I don't think she wants the hassle or to adversely affect her still cordial relationship with us. However, if it looks like we're heading that way we'll take legal advice immediately.

We're still keen to remain on good terms with our neighbour. Though, honestly believe that, of all the parties involved in this dispute, we're the ones who've acted correctly throughout. For the moment we're going to stick to our guns of this being between her and the builder. I'm going to suggest she tries going down the insurance route, though I suspect the lack of evidence of damage and her decision to replace the entire fence will mean she'll get less that way than the sum already paid by our builder (I've just learnt that they've sent her a cheque!).

It'll probably come down to how much we're prepared to pay as a "without prejudice" goodwill gesture in order to remain on good terms with our neighbour.

DVardysShadow

DMWK wrote: »

Though, honestly believe that, of all the parties involved in this dispute, we're the ones who've acted correctly throughout. For the moment we're going to stick to our guns of this being between her and the builder. I'm going to suggest she tries going down the insurance route, though I suspect the lack of evidence of damage and her decision to replace the entire fence will mean she'll get less that way than the sum already paid by our builder (I've just learnt that they've sent her a cheque!).

This is now getting slightly messy.

Sticking to the position of it being between her and the builder may be a valid posturing position - but if push comes to shove

In the celebrated case of Alcock v Wraith and Swinhoe, the builder formed a bad joint between the property owner’s new roof and the neighbour’s existing roof that subsequently leaked and caused damage to the neighbours property. The court found that the property owner was liable to the neighbour even though it was his builder that was at fault.

your neighbour could put you in the firing line and you would have no excuse.

Suggesting 'the insurance route' is just muddying the waters. Whose insurance? Hers? Yours? Or the builder's? If it is her insurance, yes they may pay out to her, but they would try and claim damages off you on the basis of Alcock v Wraith - they will have access to legal advice which will point them in your direction. I suggest that 'the insurance route' will be the most effective way to bring the matter down on you.

If the builder has paid her a cheque already, but she has not agreed a settlement, this could backfire, because it is effectively an admission of at least that amount of damage and she could be back for more.