At Grigor & Young (Moray Claims is a trading name of Grigor & Young) we get a lot of enquiries from people who need legal advice in relation to work done on their house, usually somewhere in Moray.
This covers everything from new builds to renovations and extensions.
The types of contractors involved include builders, electricians, plumbers, joiners and double-glazing companies.
In varying degrees, these situations are a “nightmare” and, as we go on to explain below, it is often not financially realistic to engage the services of a solicitor to help you.
Essentially, this article is an effort to warn you of the need to plan and organise various things at the beginning rather than leaving them until later – when things have already gone wrong and it’s “too late”. Unlike many articles on this website, while we still hope to educate and inform you, we’re not hoping to get business from it…
If you’re going to get work done on your property, here are 5 things to consider at the start which might save you time, money and hassle later on.
1. Do they have the right qualifications and a good reputation?
Many electricians, plumbers and other tradesmen belong to TrustMark. All its members agree to operate to government-approved standards.
Word-of-mouth recommendation is often the best way to find a reputable tradesman. Ask friends or relatives who live nearby if they can suggest anyone suitable.
Online forums can also be very useful, especially if they are geographically based. One good example is the Trusted Tradesman in Moray (open/public) Facebook group.
2. Do they have proper insurance to cover them while they are working at your property?
The problem is that many tradesmen will not personally have the means to satisfy any claim you might need to make against them in certain circumstances and so you would expect the reassurance that they have insurance.
This needs to include coverage of risks to you if, say, they negligently set your property on fire while working on it or if a third party is injured by their negligence. If they’re not properly covered, it could come back on you either because you won’t be able to claim for your losses from them or because a third party will have to direct their claim against you rather than the (uninsured) tradesman.
Note that insurance will not usually be in place to cover the quality of the work they do.
Remember to let your home insurance provider know if you plan to have building work carried out on your property, as you may need to increase your buildings and contents cover.
3. Have they provided a written quote?
One of the most common problems is where the nature and scope of the work is not agreed clearly in writing at the outset.
A related problem arises where, during the course of the work, additional works are agreed – or where something originally agreed is allegedly removed from the project or is agreed to be carried out by a different tradesman.
If you have an agreement with a main contractor (say, a builder) to carry out the works and they then sub-contract parts of the job to other tradesmen (e.g. electricians and plumbers), it should still be the main contractor who is responsible for the quality of the workmanship. In other words, any dispute you may have is with the main contractor and you should not allow yourself to be fobbed off by excuses such as “it’s the electrician’s fault, so you need to raise your concerns with the electrician.”
You need to establish clearly who you are dealing with. Is it a sole trader or a partnership or a limited company? Make sure it’s clear from the written documentation, and any quotes and invoices.
It’s a good idea to try to fix timescales for completion of the works at the outset. Otherwise, you risk the project dragging out beyond the length of time you expected. If it’s not made explicit at the outset, the risk is that what the tradesman considers a reasonable time for the project to take will be unacceptably longer than what you were expecting.
4. When will the contractor expect to be paid?
In many situations in life these days, we are expected to pay for things in full, up-front.
If you can, get agreement that payment will be made in stages, preferably only after that stage has been independently approved (e.g. by a surveyor).
If things go wrong at any stage and you have not yet made full payment of the bill, you are in a better negotiating position than if you have already paid in full.
5. What is the overall value of the transaction?
This is relevant because it will affect how realistic different courses of action are for you in the event that things go wrong and, for example, you might have to consider raising a court action to pursue your claim against a tradesman.
Where the value of any claim is £5,000 or less, any court action will probably have to be raised using Simple Procedure in the Sheriff Court. The costs regime is such that it’s not economical to employ a solicitor. The Simple Procedure system has been set up specifically with the intention that it should be operated by lay people, not by solicitors (despite the fact that the Scottish Courts and Tribunals website states that “You do not need to use a solicitor to use the simple procedure, but you can do if you wish”).
At a value of claim up to £5,000, there’s “down side” that you will have limited scope to get legal advice but the “up side” that, provided you are willing to self-educate about Simple Procedure and endure the hassle and pressure of attending court to represent your own interests, a “DIY” claim is possible.
Beyond £5,000 (and up to infinity), claims have to be raised under Sheriff Court Ordinary Procedure.
This is sufficiently complex that we would not recommend trying to raise an Ordinary court action without help from a solicitor. In theory, if your case succeeds, in addition to any principal sum the court orders should be paid to you, you will be able to recover expenses (court costs) from the opponent at a level which will substantially (though not entirely) pay your solicitor’s fees.
The down side is that a court order for payment of principal sum and expenses is not a guarantee that you will get paid. The court does not guarantee payment. The court does not even try to enforce the order for you. It is up to you and payment will depend on whether the opponent is willing (and financially able) to pay.
There is always the risk in any situation of this type that you may “win” but still lose because you cannot in fact recover money from the opponent. This is particularly a problem, we find, where the opponent is a limited company. Often, such businesses do not have much by way of capital.
Added to that problem is the risk that you might lose the claim and be found responsible (as would usually be the case) for the other side’s legal costs.
You might be able to protect against the risk of adverse legal costs if you have legal expenses insurance but most policies we have seen tend to exclude the availability of cover in “house renovation” situations.
If your claim is, say, £100,000, you may have little or no choice other than to try to claim. As the value of claim reduces, however, (say, in the £5,000 to £20,000) range, the cost / benefit issue becomes quite challenging. You are having to commit a lot of funds and take a substantial risk for a relatively “modest” (i.e. modest in comparison to £100,000) potential return.
Summary
This really is an area where prevention is better than cure.
Do your best to make the right investigations regarding choice of contractor, get the works properly agreed in writing and so on, and you will minimise the risk that any disputes will arise.
Without that, the risk is that you will end up in a nightmare scenario of defective works where it’s not clear what works were agreed or who was to be responsible for them and within what timescale.
Getting defective work fixed will often incur “twice the cost” because it has to be undone first before it can be redone.
