Being threatened with legal action

[user1467117350]

My partner is a self employed scaffolder. He erected scaffolding at a property 9 days ago, and yesterday morning the builder contacted him to say the neighbours of the property he worked on has accused him of damage to air vents and brick work.

The builder sent some photos through - It looks as though three small plastic air vents above a window on the third story have broken. My partner didn't go anywhere near that part of the neighbours house, and would be the first to hold his hands up and rectify any damage if he had been at fault.

The builder said the air vents look old and thinks it is just general wear and tear and the neighbours are trying it on. They have threatened legal action and have asked for my partners phone number, and we have given them mine as I am better in these situations (and he is up and down scaffolds all day).

I'm not sure what to do? I don't really want to hand over our public liability insurance details yet as we are not at fault. Is the onus on them to prove otherwise? I am getting a bit stressed out waiting for their call....

are the neighbours able to prove that it was your husband that damaged the vents; is the builder able to verify that they are old and it is general wear and tear? From how/where the scaffolding is put up, is it obvious that your husband wasn't anywhere near the vents?

if/when they phone, ask for photographs of the vents before (make sure to ask for recent ones) and after. Tell them once you have the photographs showing your husband caused the damaged you will speak to your solicitors and/or your legal advisers
x

sorry that should be solicitors and/or insurance company, and they will hear further from them

Can you speak to your insurers and see if the onus lies with you to prove your innocence or neighbour to prove your guilt.

Send them insurance details, insurers will defend the claim and cover all legal defense costs (up to you limit of indemnity under the policy) if there was no negligence from your partner and he is not responsible.

However if you deal direct with the neighbours and receive legal correspondence at a later date your insurers could refuse to pay any defense costs if they feel you have prejudiced their position or have not advised them of the "incident" in a timely fashion.

How much is an air vent?
How much evidence do they have that your partner or his employees went near the vent or that the vent was in 100% condition to start with.
Anyone who starts with legal action before a polite request to make good the damage is a chances.

Tell them to claim via their house insurance, who would then claim on yours as required.

You need to notify your insurer immediately. It will very likely threaten your indemnity if you don't. They will advise you on how to respond.

Do NOT take legal advice from armchair lawyers on mumsnet.

Don't talk to them on the phone, tell them to put everything in writing.

Get the builder to ASAP take photos of the vents with a phone/camera time stamp on them so the neighbors can't bash them up.

Wouldn't it just be easier to replace 3 cheap plastic air vents?
I know, I know, but its a faff going up the legal route

Is there a party wall and if so, was a party wall award/agreement put in place? There may be some photos as part of that process that can be used to show whether the damage was there already. If it wasn’t, your partner should speak to his insurers for advice on how to proceed.

You need to inform your insurers ASAP. If you try and deal with it without taking their advice they may invalidate your insurance and not pay out if the case ends up in court. Does you PL insurance come with legal protection? If so they will tell you which solicitor you can use.

From what you've said they are trying it on, but your insurer will be able to give you the guidance you need. PL insurers don't pay out without fully investigating so try not to worry too much.

PM me if you want any other advise, I don't work in the insurance sector but do the legal sector. Happy to provide some guidance although you would need to contract your own solicitor for full legal advice.

Give them the insurers' details and say nothing else. This is what insurance is for.

Insurers

Insurers, but he should go out to site and take his own photos.

He should also check the scaffold is perfect and they he's done the appropriate handover certificates etc. In my experience, following incidents like this, the aggrieved party also tends to take it out on the building site by phoning HSE, Building Control etc to complain about site safety standards.

I'd ask for photos / some form of evidence first. Once you inform your insurance company it opens a claim file, if they never make a claim this stays open for years and your premiums will be higher. Happened to me, someone totally made up an incident, I was able to prove it wasn't me, contacted insurance for advice, they opened a file, other people never tried to make a claim, I had higher premiums for years because the case was 'open'.

Can you speak to your insurers and see if the onus lies with you to prove your innocence or neighbour to prove your guilt.

Surely they would need to prove guilt? They could accuse him of anything - kicking their dog, stealing their milk etc. Just because you claim something happened doesn't make it a fact unless proven otherwise.

I wouldn't give them the insurer's details initially. In theory, the insurer should laugh them away, but some do take a 'no smoke without fire' approach and increase premiums, even if there was never any fault on the policyholder's part.

I'd ask them for photographic or video proof - if not of the damage actually being done, of the scaffolding being up against their vents (which it wasn't) as anything could have caused the damage - quite often it's just weathering and general wear and tear.

I'd probably make out that I was trying to protect them, as insurers receiving what they have reason to believe are fraudulent claims (i.e. if no proof or circumstantial likelihood can be shown) will often take it to the police. That would be unfortunate, wouldn't it, over a 'misunderstanding' concerning a few pounds' worth of fittings that can be expected to need replacing eventually anyway?

I definitely wouldn't just replace the cheap fittings for a quiet life, as it could well come back to bite you. If he does that, they will treat it as an admission of guilt and word could spread - "You need a scaffolder? Well, whatever you do, don't get Robinson's - they damaged part of our/a neighbour's roof structure and had to be threatened with a claim against their insurer before they put right the damage they caused. If they're careless in that way, would you trust the safety of their scaffolding?"

Plus, as we find so often with CFs, they're never grateful and they mistake kindness and goodwill for weakness and see just how far they can push it. Once he replaces the vents, they'll start looking for any other building-relating improvements on their wish list (whether they're already worn/broken or could be 'with a little help') and blame him for them, demanding that he 'fix' them. After all, he's already admitted carelessness and liability for the vents....

If he doesn't already, in future, in order to protect himself, is it worth his while setting up a basic wide-angle camera on the roof of his truck to film the scaffolding going up and coming down?

Hindsight is a great thing, but if he could have replied "I'll check the full scaffold erection and dissembling footage and see how that could have happened. That sounds very strange as I'm sure we didn't go anywhere near there." To be honest, I'm not saying he should, but if he wanted to claim that he had already got it all on video, that would likely be enough to scare the CF away anyway.

....Oh, and when saying you'll check the footage, I'd make mention of how seriously you take your reputation - you're always on your guard against any false defamation claims and have to pursue them legally as a matter of course, in order to protect your business and your good name.