Hi! I'm suing a surveyor and engineer for negligence and breach of contract, but there has been no response to proceedings being issued, and neither have them have contacted their insurance companies. The insurance companies say they can't do anything until they are contacted by the engineer and surveyor. Do we eventually sue the insurance companies, or what happens? My solicitor seems not to have seen this before. Thanks.
Suing professional for negligence but no response to proceedings
- Thread starter Maryb50
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DirectDevil
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I don't mean to be pedantic but when you say that proceedings are "being issued" do you mean that your solicitor has opened correspondence or that actual formal legal proceedings have been served ?
If your solicitor has served a High Court Plenary Summons or a Circuit Court Civil Bill the proceedings are in active play and time limits start running. When the defendants have been served they have a time limit of about 10 days or so to formally acknowledge receipt of the proceedings by putting in an entry of appearance. If they fail to do this the next step is for your solicitor to proceed against them by way of a motion for judgment in default of an appearance and liability will be effectively admitted.
The insurance companies cannot force their clients to seek indemnity under their professional indemnity policies. It is unhelpful that the insurers are not involved because they are the real source of funds if your claim is valid.
If your solicitor has served a High Court Plenary Summons or a Circuit Court Civil Bill the proceedings are in active play and time limits start running. When the defendants have been served they have a time limit of about 10 days or so to formally acknowledge receipt of the proceedings by putting in an entry of appearance. If they fail to do this the next step is for your solicitor to proceed against them by way of a motion for judgment in default of an appearance and liability will be effectively admitted.
The insurance companies cannot force their clients to seek indemnity under their professional indemnity policies. It is unhelpful that the insurers are not involved because they are the real source of funds if your claim is valid.
DirectDevil
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Hello again - I had to dash off the previous post so this is a bit more considered !
The situation described is a bit unusual. The professionals should notify their professional indemnity insurers who will decide two issues. Firstly, are they providing indemnity to their policyholders ? Secondly, if they are indemnifying their policyholders, they will carry out investigations to determine if they they going to contest or settle your claim.
I would always be worried about professional indemnity insurers not covering their policyholders. In simple terms, the insurers are the finance behind the surveyor and the engineer. So, unless the defendants have substantial means there would be no practical purpose in suing them if they cannot meet any judgment for damages and costs. The proofs for a professional indemnity case are usually onerous and would include getting other surveyors and engineers to opine on the errors or omissions of the first pair never mind the costs of putting the defective structures right (or the depreciation of the value of the property if that measure is to be used to assess quantum). You will also have a fairly hefty legal bill by the end of the process.
As mentioned above, if you serve proceedings on the defendants you can get a default judgment against them if they fail to respond to the proceedings. The convention is that if defendants fail to respond to legal proceedings they are effectively deemed to admit liability. If you get such a judgment the case will eventually proceed to a hearing to assess damages. The problem is that if the insurers are not involved you will be awarded damages and probably costs against impecunious defendants. One serious problem there is that the legal bill is actually yours to discharge to your solicitors if the other side do not pay. There are some side issues on this point but we don't need to go there presently
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You asked about suing the insurers. The parties against whom your rights of action lie are the engineer and the surveyor. I think in this type of case that you would have no direct right of action against the insurers as you have no contractual relationship with them. There could well be a different answer to this point if the proposed defendants were bankrupt as individuals or wound up if a company. I think that this latter scenario is still covered by S.62. Civil Liability Act 1961 but again you really do not want to be trekking to that particularly exotic part of the legal jungle just yet. Link for info http://www.irishstatutebook.ie/eli/1961/act/41/section/62/enacted/en/html#sec62
In short, it does not cost much to serve proceedings as a preliminary procedural step to put the skids under the defendants to show that you mean business. However, you need to be very wary about going the full distance if there is nobody to pick up the bill.
Incidentally, you should have obtained an estimate from your solicitor about the likely costs involved in dealing with this matter. They are obliged to give you an estimate for the likely cost of the work - what is known as a Section 68 letter. Link http://www.irishstatutebook.ie/eli/1994/act/27/section/68/enacted/en/html
Be careful out there - it really is a jungle. Good luck....
The situation described is a bit unusual. The professionals should notify their professional indemnity insurers who will decide two issues. Firstly, are they providing indemnity to their policyholders ? Secondly, if they are indemnifying their policyholders, they will carry out investigations to determine if they they going to contest or settle your claim.
I would always be worried about professional indemnity insurers not covering their policyholders. In simple terms, the insurers are the finance behind the surveyor and the engineer. So, unless the defendants have substantial means there would be no practical purpose in suing them if they cannot meet any judgment for damages and costs. The proofs for a professional indemnity case are usually onerous and would include getting other surveyors and engineers to opine on the errors or omissions of the first pair never mind the costs of putting the defective structures right (or the depreciation of the value of the property if that measure is to be used to assess quantum). You will also have a fairly hefty legal bill by the end of the process.
As mentioned above, if you serve proceedings on the defendants you can get a default judgment against them if they fail to respond to the proceedings. The convention is that if defendants fail to respond to legal proceedings they are effectively deemed to admit liability. If you get such a judgment the case will eventually proceed to a hearing to assess damages. The problem is that if the insurers are not involved you will be awarded damages and probably costs against impecunious defendants. One serious problem there is that the legal bill is actually yours to discharge to your solicitors if the other side do not pay. There are some side issues on this point but we don't need to go there presently
.You asked about suing the insurers. The parties against whom your rights of action lie are the engineer and the surveyor. I think in this type of case that you would have no direct right of action against the insurers as you have no contractual relationship with them. There could well be a different answer to this point if the proposed defendants were bankrupt as individuals or wound up if a company. I think that this latter scenario is still covered by S.62. Civil Liability Act 1961 but again you really do not want to be trekking to that particularly exotic part of the legal jungle just yet. Link for info http://www.irishstatutebook.ie/eli/1961/act/41/section/62/enacted/en/html#sec62
In short, it does not cost much to serve proceedings as a preliminary procedural step to put the skids under the defendants to show that you mean business. However, you need to be very wary about going the full distance if there is nobody to pick up the bill.
Incidentally, you should have obtained an estimate from your solicitor about the likely costs involved in dealing with this matter. They are obliged to give you an estimate for the likely cost of the work - what is known as a Section 68 letter. Link http://www.irishstatutebook.ie/eli/1994/act/27/section/68/enacted/en/html
Be careful out there - it really is a jungle. Good luck....
How do you know they haven't contacted their insurers? If the insurers told you, then that is a breach of data protection! Your claim is against the professionals and not their insurers. If and it is an if, they are insured and they comply with Policy conditions, then their insurers will come on board. If there is any breach of policy conditions, insurers may refuse to indemnify and as others have said, you are going against individuals. If individuals, they may not be able to discharge any judgements.
Hi! Thanks to you all for your replies. The engineer and surveyor won't respond to proceedings - we're going to Court presuming their admitting liability by not responding. Their solicitor's won't respond, and the insurance companies involved stated that they had not mention of proceedings from their clients, though my solicitor notified them. Basically the issue is with e40k of remedial structural work, and the engineer refusing to give certs of compliance for the house or fire certification, or refusing to answer any questions, requests for certification at all. There now seems to be some doubt as to whether the engineer actually has the qualifications he says he has, so there may be another can of worms here.
Just wondered if we obtain judgement against them, which I think we will as two independent reports were done which both stated what happened was down to negligence and breach of contract of engineer and surveyor - how is judgement enforced, and how does it affect them if they have a judgement against them. Re being impecunious - I know the surveyor is quite wealthy, but I don't think the same applies to the engineer.
Just wondered if we obtain judgement against them, which I think we will as two independent reports were done which both stated what happened was down to negligence and breach of contract of engineer and surveyor - how is judgement enforced, and how does it affect them if they have a judgement against them. Re being impecunious - I know the surveyor is quite wealthy, but I don't think the same applies to the engineer.
DirectDevil
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When formal proceedings conclude a decree will be issued. Your solicitor presents that to the defendants for payment. If the decree is not satisfied it may then have to be referred to sheriffs or whoever to try and enforce payment by seizing goods to the value of what is owed in damages and costs and interest. BTW interest runs from the day of judgment and is payable on both damages and costs.
If the sheriff gets no satisfaction you then have to proceed to secure payment by other legal means like a garnishee order or the like. Ultimately, you might have to apply to have them made bankrupt. For the latter reason your solicitor would be well advised to notify the insurers now in relation to S.62 Civil Liability Act 1961 so that you could subsequently proceed directly against the insurers in the event of bankruptcy. Your solicitor and counsel will know what to do in this respect. The reason I emphasise that you attend to notifying the insurers now as I suggested is to preserve your position at a later date against the insurers.
BTW if neither defendant appears in court you should get a joint and several judgment against both of them. The benefit of this is that you can levy the judgement against either of them in full. So, if the surveyor is wealthy he can be stuck with the entire judgment and it then falls to him to go against the engineer for and indemnity or contribution but that is not your worry.
In view of the quantum involved this appears to be a Circuit Court case so the legal fees will be as horrendous as if it was a High Court case.
P.S. AFAIK surveyors must carry professional indemnity insurance as a condition of membership of the relevant professional body. I would consider a complaint to their professional body on the basis of their conduct. Unfortunately, I do not know the position in relation to the engineer whom I suspect to be a structural engineer. If you have headed notepaper from the engineer it will probably display his qualifications. If you have doubts about those qualifications you might approach the bodies who conferred them for verification.
P.P.S. I must correct my Freudian slip !! Circuit Court fees are NOT as potentially horrendous as High Court costs.
If the sheriff gets no satisfaction you then have to proceed to secure payment by other legal means like a garnishee order or the like. Ultimately, you might have to apply to have them made bankrupt. For the latter reason your solicitor would be well advised to notify the insurers now in relation to S.62 Civil Liability Act 1961 so that you could subsequently proceed directly against the insurers in the event of bankruptcy. Your solicitor and counsel will know what to do in this respect. The reason I emphasise that you attend to notifying the insurers now as I suggested is to preserve your position at a later date against the insurers.
BTW if neither defendant appears in court you should get a joint and several judgment against both of them. The benefit of this is that you can levy the judgement against either of them in full. So, if the surveyor is wealthy he can be stuck with the entire judgment and it then falls to him to go against the engineer for and indemnity or contribution but that is not your worry.
In view of the quantum involved this appears to be a Circuit Court case so the legal fees will be as horrendous as if it was a High Court case.
P.S. AFAIK surveyors must carry professional indemnity insurance as a condition of membership of the relevant professional body. I would consider a complaint to their professional body on the basis of their conduct. Unfortunately, I do not know the position in relation to the engineer whom I suspect to be a structural engineer. If you have headed notepaper from the engineer it will probably display his qualifications. If you have doubts about those qualifications you might approach the bodies who conferred them for verification.
P.P.S. I must correct my Freudian slip !! Circuit Court fees are NOT as potentially horrendous as High Court costs
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Brendan Burgess
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If they are members of professional bodies, it may well be worth while making a complaint to their body.
At this stage, it would be just a complaint that they have not responded to your correspondence.
Brendan
At this stage, it would be just a complaint that they have not responded to your correspondence.
Brendan
The only compulsory insurance in Ireland is Motor insurance (for Third Party injury/damage). I merely point this out that the fact that your solicitor notified them means nothing. If the engineer is in breach of his policy conditions, they will not indemnity him.
If by yesterday's post, you say they want to settle the case, then you are more than half way there!
If by yesterday's post, you say they want to settle the case, then you are more than half way there!
Hi! Again, apparently things have taken a step back. The original engineer who made the mess up, is refusing to sign certification for planning, though he applied for the planning. He is also refusing to sign Cert of Compliance with Building Regulations Part A-M. Is this not illegal? We are now looking at how t calculate devaluation in my house as a result of this, or that's what the Barrister said we should do - as well as remedial works - but no one seems to know who does this calculation - is it an auctioneer? I'm hoping someone here will know.
Hi! Ravima, my solicitor tells me they absolutely are involved. He says he knows some who knows this solicitor and she works for the engineer's insurers. I think that not wanting to sign the Certs of Compliance with planning and building regulations is about not wanting to be responsible for any latent defects in the building. They want a full and final settlement. I am saying that they can't have one as I don't know what other defects from the engineer's mess up will crop up in the future. My solicitor wants me to accept the deal. My new engineer said I can't waive my right to sue again if other defects become apparent. In any case, my new engineer won't give me a Cert of Compliance for the work that they are not remedying, or for compliance with planning, so that still leaves me having no Cert of Compliance with planning or building regulations. Any advice/comments appreciated!
I know you want to get some answers, but why are you barking when you've bought a dog? You hired a solicitor. Surely he should have all these answers.
He says he knows some who knows this solicitor and she works for the engineer's insurers. I think that not wanting to sign the Certs of Compliance with planning and building regulations is about not wanting to be responsible
I think you need something a bit stronger than this from your solicitor. Just because a solicitor does work for AN engineers insurers, does not automatically mean that the solicitor is doing work for YOUR engineers insurers.
Peteb is on the ball when he suggests your solicitor should have these answers.
I think you need something a bit stronger than this from your solicitor. Just because a solicitor does work for AN engineers insurers, does not automatically mean that the solicitor is doing work for YOUR engineers insurers.
Peteb is on the ball when he suggests your solicitor should have these answers.
Hi! Thanks for all the advice/comments. I'm afraid the situation looks gloomier, as the barrister has probed further. As the engineer made a mistake on planning and we had to apply for retention, meaning that the renovation should have gone for planning first off, and a commencement notice should have gone in - we will probably find it very difficult to sell our house in the future, and people will find it difficult to raise a mortgage on it. So, it looks like it will be a High Court case, against the Engineer and also the builder, who should have recognised the issues - as far the surveyor - I'm not sure about this yet.
If builder was doing the work under supervision of your engineer, where did builder go wrong?
Anyway, position is still the same, are the insurers involved. Your solicitor should have absolute certainty in this as if there is no insurance, you will have to pay a substantial amount of legal and other bills to get case to court.
Anyway, position is still the same, are the insurers involved. Your solicitor should have absolute certainty in this as if there is no insurance, you will have to pay a substantial amount of legal and other bills to get case to court.
Hi! Ravima, saga still goes on. Just two weeks ago, our new extension roof collapsed - 16 months after it was completed! Luckily it happened when we were out, and no one was injured. It appeared there was rotting from condensation as insulation was not put in correctly. We have had to get the works done and get another mortgage. Current bill for all 70k. Someone mentioned engineer's professional body - we did this - it seems engineer didn't even do planning search, didn't supervise the works hardly at all, allowed the builder to give certs for radon when none was put in. Did not do a loading for the structure. Passed electrical work - sockets etc completely wrong all over house, even though against building regulations. Reported that three was a new foundation put in, when there wasn't - investigative work just done. Had provided me with a grossly insufficient contract, had not done Health and Safety Documentation for the renovation, and the most offending thing to his professional body was that he refused to give us the Certs of Compliance unless (which are now useless), unless we withdrew our complaint from his professional body. Re. my solicitor, I feel I have to do most of the running re reports from new engineer and QS report, my solicitor will often take quite a while to follow up on this stuff -even when we have asked a few times - we feel so stressed by it. Wonder if new solicitor would make any difference?
PaddyBloggit
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Perhaps .... you need to get your advice from a professional you can trust 100%.
Looking for advice on this matter from an online forum is certainly not going to solve it.
You have serious issues that need sorting. It looks to me that you're going around in circles.
If your solicitor can't handle it, then yes, it's time to look for one who can.