What Evidence Do I Need in a Claim for Defects at My Property?

Dissatisfaction with building works is a common problem for homeowners after new build projects or significant renovations, particularly once the relationship with the builder has broken down. This article covers the evidence you need for a successful defects claim.

We act for property owners and construction companies in disputes across England and Wales, including parties who have identified defects after building work. If your builder isn’t cooperating, we can help you establish whether it’s worth pursuing a claim. Contact our specialist construction and property litigation team now. We would love to help you.

What Does “Evidence” Actually Mean in a Defects Claim? 

Evidence in defects claims means proof that works were not carried out to the required standard. A defect may appear to be insignificant but still fall below the specified contractual standard.

The construction contract provides evidence of what was agreed. Supporting communications, such as emails or WhatsApp messages, are also relevant in evidencing the terms of the contract and the agreed contractual standard.

You’ll also need to prove breach, i.e. that the works fell below the contractual standard; this requires evidence of fact.

Evidence of fact can depend on the specific products, materials, and specifications. Evidence can be visual, such as photographs, if the defects are patent(visible or immediately detectable p). Evidence may also include quotes for remediation works from other builders and expert testimony in a specialist report.

If the defects are latent (hidden or not immediately apparent) then problems may emerge later, sometimes months or even years later. It can be harder to evidence these problems without expert help.

If you’ve already undertaken remedial works, then you’ll need evidence of these plus the cost.

The Evidence Available to You 

Defects claims pivot on the quality of the evidence, so good record keeping throughout a project is vital.

The evidence available to you could include:

• The provisions of the contract
• Physical evidence if the defect is patent, including video and photographs
• Contemporaneous correspondence about the defect between you and your builder
• Third-party builders’ quotes for remediation

Obtaining expert evidence via an independent report is often vital to support defects claims.

Why an Expert Report Is Usually the Most Persuasive Evidence 

Defects claims are rarely straightforward and can quickly stray into territory that is beyond the technical remit of most property owners. Using experts to issue a report provides the strongest possible evidence to support your claim.

The most persuasive evidence is an expert report that complies with Part 35 of the Civil Procedure Rules (“CPR”) from a quantity surveyor or building surveyor with experience providing this type of information. In some cases, this is the only way to discharge the burden of proof in a claim.

Many people are familiar with the concept of expert evidence but find out too late that their expert’s report doesn’t comply with the rigorous standards of CPR Part 35.

A Part 35 report isn’t just a professional opinion; it must follow a prescribed structure and contain mandatory declarations which demonstrate that the expert’s primary responsibility is to the court and not to the person who has appointed them.

Not only is a CPR Part 35 report the gold standard, but failing to obtain an expert report that complies with the requirements of CPR Part 35 may mean that you are not able to rely on your expert evidence in court.

There are firms of surveyors that specialise in producing expert witness reports in line with the RICS Practice Statement: Surveyors Acting as Expert Witnesses and the Civil Procedure Rules.

Choose carefully: impartiality, technical expertise, and court-ready presentation are all essential.

It is also crucial that an expert is instructed in such a way that ensures their independence cannot be questioned. Before instructing an expert, it can be a good idea to have a solicitor draft a letter of instruction to send to the expert beforehand.

What Happens if Your Evidence Is Weak? 

Weak evidence means your claim is unlikely to succeed. It’s vital to understand the quality of your evidence before you take the first steps and instruct a legal representative or issue proceedings.

A negotiated settlement may be a better option if a claim won’t stand up in court due to weak evidence.

Before You Instruct Anyone: Getting the Evidence Assessment Right 

Proper evidence is essential to supporting defects claims. A specialist assessment will establish whether you’re dealing with a true defect and evaluate strengths and weaknesses of your case. Something you feel could have been done better or has potential for improvement is not necessarily a defect.

If there’s a measurable difference between what was delivered compared to what was contractually agreed, then it’s time to start compiling evidence.

It’s essential to have your evidence evaluated by legal professionals who specialise in construction disputes. They’ll provide an honest assessment including where evidence falls short.

Expert practical guidance informs on whether to claim and the chances of success. It provides a complete picture before deciding which route to recovery is best.

Depending on the value and strength of your case, funding options such as a Conditional Fee Agreement may be available. Subject to case assessment and our funding criteria. Available on qualifying disputes typically valued over £10,000 with strong prospects of success.

Frequently Asked Questions 

Do I Need an Expert Report to Make a Claim for Defects? 

Not always, but it’s strongly advisable. Without specialist knowledge, it can be difficult to present a compelling case in a claim for defects. You need enough technical detail to support your case. Quotes for remediation work from other builders may not be enough. A CPR Part 35 expert report is the best specialist evidence to provide to the court.

Can I Use Photographs as Evidence in a Property Defects Claim? 

Yes, photos are admissible evidence in a property defects claim. However it’s vital that you use a verified timestamp to prove the data. Your phone or device will automatically record date and time, but a phone’s metadata can be easily faked.

What Is a CPR Part 35 Expert Report?

A CPR Part 35 expert report is a specialist report written by an expert witness that meets the requirements of the Civil Procedure Rules Part 35 and Practice Direction 35. These reports are used to provide the court with an informed view. The expert’s overriding duty is to the court not to the person appointing them and the report must contain a signed Statement of Truth.

How Much Does an Expert Report Cost in a Defects Claim? 

The cost reflects the complexity of the case; reports can range from £1,000 to £5,000, or even more, so it is important to get advice from someone with experience and who knows roughly how much you should be paying for the report you need. There will also be a daily attendance rate for a court appearance. 

Need Advice? Contact Helix Law.

Making a defect claim is a logical option if your building work or renovations is not up to standard. However, you need to establish whether there’s been a contractual breach and if you have the quality of evidence to prove it.

Using a legal professional to assess your evidence early avoids starting a claim which may not succeed incurring unnecessary expense. There may be other options available to obtain a remedy.

We are a team of specialist solicitors acting in residential defect claims, and we can advise on the evidence you need without obligation and before you make any commitment to instructing a solicitor or spending money.

Our approach is cost-effective and tailored to your individual position. Alongside evaluating the strength of your case, we’ll clearly set out your options and help protect your legal rights.

If you’re unsure whether to make a defects claim, or are worried about providing the right evidence, speak to our specialist construction and property litigation teams now. Our teams act nationally, and we would love to assist you.