Course Work Sample: Attorney's Advice on a Probable Construction Law and Professional Negligence

Dear Mr. Pine:

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I hope all is well with you. You recently wrote to our law firm seeking pieces of advice on how to proceed with a probable construction law and professional negligence against the following defendants; solicitor, surveyor and the estate agent. I am writing to exemplify on some basic issues of this matter in detail. I will confirm my understanding as per this case, as well as explore the options that are available for you. Getting to understand these concepts does not preclude you from pursuing any particular path that is deemed fit, but will help you select informed decisions about which options would probably go further in basing your interests and claims. As per your descriptions, and after researching the issue, I believe that the court would likely conclude that the solicitor was professionally negligent (Dugdale, et al. 1998). The Smiley and co failed to notify you of a way over which the land was being purchased. The solicitors have a duty of care, and they were expected to provide correct advice, be able to assess risk accurately and only act in the interest that best serves you. The court would likely charge the Circus survey company with professional negligence of duty. The surveyors missed important issues when carrying out the survey and prepared a report that never reflected the actual state of the property (Murdock, et al. 2001). They lacked a correct information on the right propertys value and the condition of the land when they assessed it. The surveyor, therefore, overvalued the property leading to your financial loss, they also failed to assess the property adequately and hence could not warn you of the obvious potential problems that arose. The surveyor also neglected to identify the asbestos roof that would cost you more financial obligations that were not planned for. That the surveyor has breached their duty of care to you and you have incurred financial loss, then you have a right to claim for the compensation (Patten, 2003). As per my research, the estate agents never had to be professionally qualified to practice, but as a result of being members of the professional regulatory body, they will maintain insurance of professional indemnity. The negligence claims come as a result of misrepresenting the value of the property by giving false information leading to financial loss. Therefore, basing my argument on the above analysis, I conclude that there was a breach of contract from the surveyor, solicitor, and estate agent. I will give explanations for my conclusion below after first setting out facts the best way I understand them.

Basing on the above facts, the estate agents have been held liable due to their professional negligence of duty and lack of duty to care (Holyoak, 1992). They will be answerable on the courts of law on the basis of providing wrong information on the value of the property which eventually led to the loss of land. Most often, estate agents rely on disclaimers when they face negligence claims. Any disclaimer will amount to unfair terms of the contract act which needs it to be reasonable. However, courts have upheld particulars of estate agents disclaimers so that it will require careful consideration on case by case basis

The second stated fact above will enable the establishment of the negligence of duty of care regarding the surveyor in a court of law as it is a legal requirement for all service providers performing their roles are obligated to provide the service with the highest level of professionalism. There will be the establishment of a breach during duty of care against the surveyor since there is enough proof that the standard of services they provided are below the standard of expected professionals from such a reputable firm. According to the research, we have conducted, you will be able to claim a financial reward from the substantial loss claims that you made. Claims can only be made against poor services that in this case, you were able to make financial losses. The proof you stated is enough to warranty you a financial refund from the surveyors. The contract with the surveyor was to offer quality and reliable services and that they did not deliver as per the requirement leading to losses (Uff, 2015).

Finally, that the solicitor owed you a duty of care, because of the contract you had between both of you, he will be answerable to the court of law. That there was a breach of their duty by poor advice or work and that the breach led to a financial loss then you have a right to make a claim

If you want court proceedings to be issued, you must bring claims within the time limit unless you want to give defendants strong defense to say that the claim was issued out of time. The approximately applicable limitation on period is six years for cases of professional negligence. Once a claim appears to be worthwhile, a procedure referred to as Professional Negligence Pre- Action Protocol should follow. The protocol will provide a platform for solving the issues smartly and in a cost effective without necessarily going through the court proceedings. From the letter of claim from a professional, proposals should be made to help you in making settlements and disputing claims. In case there is no agreement to the settlement of the claims their court proceeding will be issued and will take approximately twelve months to reach trials.

Other factors you should consider are to look and possess a duty to mitigate your losses. This means you must take precautions to minimize further loss. If you are not able to mitigate your loss, you will not be able to recover losses which could have been avoided. At this point, the professional may seek to argue at a point of defense of contributory negligence which when the professional can show, the claimed losses may be reduced by the court of law. It will also be able to affect the claim if losses are caused by another party (Murdock, 2002).

To prove that the claim is in order and that surveyor was negligent it is required to prove that there was the duty of care among the parties as well as show that the surveyor's behavior regardless of her medical condition at the moment, fell bellow reasonable standards and that this caused a direct loss. Various cases for surveyor negligence are complex, but mostly they do fall under property surveys which in most cases fail to disclose defects that may have been expensive to resolve (Galbraith et al. 2005). In this situation the surveyor was negligent, the surveyor did not point out the structural defects as well as other defects such as the design, and these were expensive to resolve and led to a loss for the client. In this situation, the surveyor fell in err, and that did not act with skill and care to be anticipated of a sensibly competent surveyor. The surveyor engaged in some professional negligence, and this is inclusive of:

- Failed to offer instructions for further investigations.

- Failing to provide adequate inquiries.

- Produced inefficient report which can be described to be defective as it was not comprehensive.

- Failing to properly inspect the property.

- Failing to identify wooden floorboards, breeze block with a corrugated asbestos roof, and also to take clear pictures for the report.

- Failing to take proper observation for visible defects.

Another thing that is crucial for this claim is to identify what type of surveillance was carried out, and this include, valuation, homebuyers report as well as a Structural Survey. Valuation is needed when getting a house with the assistance of mortgage. In this case, mortgagees benefit substantially since they make their interest secure to ensure they are safe to incase one defaults. Relying on this report sometimes is not advisable to a buyer since it does not necessarily highlight the defaults (Marsden, 2003).

Secondly, homebuyers are better for one looking for houses in good conditions. It helps in identifying the crucial major faults in the property. The full structural survey which is costly to pursue but gives better details of the survey. It looks into the major as well as the minor details of the house/property. This gives proper recommendations for the type of work needed for the property.

To sum up, based on the facts that I have been able to produce in this letter, I believe that from the court of law, would conclude that Mr. Pines claims are indeed valid and the contract was breached that in turn affected him negatively leading to financial losses. That, therefore, the three parties involved will have to make compensations of a total of $80000 to cater for the losses incurred for his property. In any case, the settlements are made outside the court it will help in saving time and costs involved in defending the claims will well be reduced.

In my opinion, before exploring the court action, there are some ways to be explored to solve this case. These are just alternatives that do not require the law to solve the case. It would be less tiresome and also less troublesome to all the parties. Firstly, Mr. Pine can raise a complaint with the estate agent who should have a comprehensive set of procedures to enhance the complaints on their services. It not only ensure a careful review of cases but also ensure a quick response.

I hope this is relevant and would be glad to discuss this matter with you further. Please feel free to call my office at (cell phone number) if you have questions, or would like to set up a time to meet with me for further deliberation about this case.

Very Truly Yours,

Name of the Attorney

References

Dugdale, A.M.; Stanton, K.M. and Parkinson, J.E. (1998) Professional Negligence, 3rd Edition, ButterworthsGalbraith, Anne et al (2005) Galbraiths Building and Land Management Law for Students, Fifth Edition, Elsevier Butterworth-Heinemann

Holyoak, Jon (1992) Negligence in Building Law, Cases and Commentary, Blackwell Scientific Publications

Jackson, Rupert M (2002) Jackson & Powell on professional negligence, 5th Edition, Sweet and Maxwell

Marsden, Sally and Makepeace, Pauline (2003) Construction and Engineering Law: A Guide for Project Managers, LexisNexis ButterworthsMurdock, John (2002) Negligence in Valuations and Surveys, RICS Books

Murdock, John (2005) The nightmare zone, The Estates Gazette, Nov 12, pp. 164-165

Murdock, John and Hughes, Will (2001) Construction Contracts: Law and Management, Third Edition, Spon Press

Owens, Stephanie (1998) Law for the Construction Industry, Second Edition, Addison Wesley Longman Limited

Patten, Ben (2003) Professional Negligence in Construction, Spon Press

Uff, John (2005) Construction Law, Sweet & Maxwell