Small Claims Technicality

vinyl_junkie21

I have a Money Claim (commonly referred to as Small Claim) filed against a damp and timber surveyor who failed to spot rising damp in a property prior to my purchase. As a result of this, I had to pay for costly damp proofing I was not aware I would need when agreeing a price for the property. My partner was responsible for purchasing the damp survey and the report is in her name; yet I am the claimant. Does this render my claim invalid as I do not have the contract with the surveyor? The property was a joint purchase however the claim was entered in my name as I filled out the online form which only allows 1 named claimant.

Tried Citizens Advice Bureau who don’t pick up their phone.

Equaliser123

vinyl_junkie21 wrote: »

I have a Money Claim (commonly referred to as Small Claim) filed against a damp and timber surveyor who failed to spot rising damp in a property prior to my purchase. As a result of this, I had to pay for costly damp proofing I was not aware I would need when agreeing a price for the property. My partner was responsible for purchasing the damp survey and the report is in her name; yet I am the claimant. Does this render my claim invalid as I do not have the contract with the surveyor? The property was a joint purchase however the claim was entered in my name as I filled out the online form which only allows 1 named claimant.

Tried Citizens Advice Bureau who don’t pick up their phone.

Doubt it will make too much difference. Ideally you should have been joint claimants.

But it depends how you have drafted the claim. Did you claim for breach of contract or negligence?

Also, if negligence, did you follow the Pre-action protocol for professional negligence actions?

vinyl_junkie21

Thanks for your response.

Yes, I am claiming negligence. The reason I ask about the claimant being an issue is that the defendant is using solicitors, where I am managing my own case, and they have responded suggesting I have no claim due to the contract being between my partner and the surveyor.

Equaliser123 wrote: »

Also, if negligence, did you follow the Pre-action protocol for professional negligence actions?

What is the pre-action protocol? I advised of my intentions and offered the right to re-survey etc.

Equaliser123

vinyl_junkie21 wrote: »

Thanks for your response.

Yes, I am claiming negligence. The reason I ask about the claimant being an issue is that the defendant is using solicitors, where I am managing my own case, and they have responded suggesting I have no claim due to the contract being between my partner and the surveyor.



What is the pre-action protocol? I advised of my intentions and offered the right to re-survey etc.

There doesn't need to be a contract in place for negligence. In any event, you could argue that your partner entered into the contract on both of your behalf.

For professional negligence cases, you are required to follow a "protocol" before issuing proceedings. What sort of value are you claiming?

Equaliser123

Here is the Pre-action protocol http://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_neg

It may be that you have, in essence, followed it but Defendant prof neg solicitors will be all over you if you have not followed.

They are the worst to deal with.

vinyl_junkie21

Thank you - very helpful. I have missed some parts of this in my actions to date so expect they will be highlighted.

Equaliser123 wrote: »

They are the worst to deal with.

I am finding that unfortunately. Do you know what the precedent is for claiming solicitors fees on Money Claims? My understanding was that this was not possible but I am being threatened by the defendants solicitors that they will claim their costs from me if it goes to court as I don't have a contract with the defendant.

Equaliser123

vinyl_junkie21 wrote: »

Thank you - very helpful. I have missed some parts of this in my actions to date so expect they will be highlighted.



I am finding that unfortunately. Do you know what the precedent is for claiming solicitors fees on Money Claims? My understanding was that this was not possible but I am being threatened by the defendants solicitors that they will claim their costs from me if it goes to court as I don't have a contract with the defendant.

Depends how much the claim is for. If £5k + then it will be dealt with in the fast track stream where costs become an issue.

However, if small claims, then it is unlikely that costs will be awarded other than certain fixed solicitors costs. These costs are all set out in Part 45 of the Civil Procedure Rules. They will not amount to very much.

There's a few ways that you can sort this situation. You can ask the Court for leave to add a claimant and add your partner. Or you can simply reissue the claim.

Alternatively, simply say that you are claiming negligence and that the established principle in Donoghue -v- Stevenson extends the duty of care beyond those whom have entered a contract. They will know all about that as it is (literally) GCSE law stuff.

Private message me if you need any help.

Equaliser123

Oh, should also ask - did you issue online? I know it is cheaper and easier but I find that for anything other than simple debt cases, it is often better to issue proceedings in the old fashioned way (i.e. through the County Court).