Consumer Rights: Ten Year Liability Cover
Another success for our clients: sometimes you have to dare to skip a step…
There are cases where, on the first reading, you think:
“We’ll need to tread carefully with this one.”
And then there are cases where you think:
“We’ll need to tread very carefully with this one… but let’s go ahead anyway.”
That is exactly what happened in this case. And I must admit, I had my doubts.
But the court’s decision ultimately justified the risk.
The Case
An old shower dispute… that ends up in court.
My client, who owns several properties, had already entrusted me with a number of cases. He knew how I worked and, above all, had seemed quite satisfied with my work so far.
This time, however, the case was a little unusual. Before contacting me, he had taken this longstanding case to another lawyer who, for reasons of his own, had ultimately decided not to pursue it.
Let me tell you the story.
My client jointly owned a rented house with his mother. Sadly, his mother died, and he became the sole owner of the property.
But that is not where our story really begins. A few years earlier, my client’s mother had hired a plumber to carry out renovation work in the rented house.
The work carried out in 2016 included:
– replacing a bath;
– installing a shower tray and screen;
– relocating the taps.
In short, nothing that seemed, at first glance, likely to lead to a legal battle. Except…
2023: the shower springs a leak
In early 2023, the tenant informs the owners that the shower tray has cracked. And not just a little cosmetic crack. It is causing significant water ingress.
The plumber is insured. He says he has reported the claim to his insurer. The insurer, meanwhile, seems to have adopted a particularly original strategy: doing nothing.
Well, almost. A second insurer is eventually contacted and appoints an expert. The expert visits the tenant’s home, inspects the damage, estimates the remedial work at around €10,000 and concludes that the plumber is responsible.
It was all going almost too well. Except that, having had the damage and its policyholder’s responsibility established, the insurer ultimately refuses to cover the repairs.
That is where I come into the story.
A bailiff’s report: because sometimes a shower needs a witness!
I asked my client to arrange for a bailiff to draw up a report, providing a detailed record of the condition of the property and the damage. Meanwhile, formal demands followed one after another. From my firm. From my client’s insurer. With neither the plumber nor his insurer responding, legal proceedings had to be considered.
And that is where things became interesting.
The Usual Process: a court-appointed expert, then a hearing
In this type of case, the usual process is fairly straightforward. We apply to the judge hearing interim applications for the appointment of an expert. The expert visits the property. Calls the parties to attend. Inspects the work. Investigates the cause of the damage. Where appropriate, estimates the cost of the necessary repairs. Then submits a report. Only then, once the report is available, do we return to court to seek an order against the party responsible and their insurer.
It is a perfectly understandable procedure. And a reassuring one. But it has one small drawback. It takes time. Sometimes a great deal of time. In some cases, the expert assessment can easily stretch over several months, or even years.
My client, however, wanted to resolve the matter quickly. And his tenant was refusing to continue paying the rent in full when the shower had become, shall we say, rather less than functional. Everyone therefore had an interest in ensuring that the story did not become a legal saga running over several seasons.
What if we skipped a step? This is where I made a decision that, I must admit, was not without risk. I proposed that my client bypass the court-appointed expert assessment. In other words: rather than first applying for an expert to be appointed in interim proceedings; go straight to court to seek an order against the plumber and his insurer.
On paper, it is much quicker and less expensive. In practice, it is also much riskier. Because the other side was hardly going to let that pass without a challenge.
And challenge it they did.
“Maître, your expert report was not commissioned by the court” The plumber argued, in particular, that without formal acceptance of the work by the client, the ten-year liability cover could not be invoked. The argument was not unreasonable.
The insurer, for its part, took a similar line. It argued that an order could not be made solely on the basis of an out-of-court expert report. Again, it was difficult to dismiss the argument as completely fanciful.
It added that the cost of the repairs claimed could not be properly assessed without a court-appointed expert assessment in which all parties could participate. And, to top it all, the insurer also disputed whether its policy provided cover. In other words, the other side had decided to leave me no way out.
I had doubts. Yes, I had doubts. I will be honest.
I had doubts.
Because taking a procedural shortcut is all very well. But the court has to be willing to take the same shortcut. I therefore explained the risks of this strategy very clearly to my client.
We knew that going straight to a hearing on the merits would spare us the court-appointed expert procedure. But we also knew that the court might consider the evidence insufficient. My client nevertheless agreed to the strategy.
That, too, is part of a lawyer’s job: advising, explaining the risks, then defending the strategy chosen by the client. And, while we are at it, remembering the duty to advise when deciding to take a little procedural gamble.
The argument I put forward
I argued, in particular, that although a decision cannot rest solely on a disputed out-of-court expert report commissioned by one party, the position is different where that report is supported by other evidence and all the documents have been properly disclosed to the parties, with each given the opportunity to examine and challenge them.
In plain terms: the expert report did not stand alone. We also had the bailiff’s report, photographs, quotations, correspondence between the parties, evidence relating to the work and the other documents in the case. It was therefore for the court to assess all that evidence.
The question was whether it would agree with us.
The judgment
Then came the moment every lawyer knows well. When you open the judgment. And start reading. Sometimes with your heart beating a little faster. And, in my case, with one simple question: “So… did it work?” The answer was yes. The court finds that the work was tacitly accepted
The first important point: the court rejected the argument that the work had not been formally accepted. It found that there had been tacit acceptance, particularly because the completed work had been taken into use and paid for, as evidenced by a settled invoice from 2016. The ten-year liability cover could therefore be invoked.
First hurdle cleared.
The out-of-court expert report is accepted as evidence
The second particularly interesting point: the court found that the out-of-court expert report had evidential value, even though not all parties had been given the opportunity to participate when it was prepared.
Why? Because it had been properly submitted in the proceedings, and the parties had been given the opportunity to examine and challenge it. The court therefore considered it alongside the other documents in the case. This was precisely one of the points on which we had based our strategy.
Second hurdle cleared.
And what about the shower in all of this?
The court then found that the work carried out fell within the scope of the ten-year liability cover. The expert report established, in particular, that the shower tray had not been properly supported when it was installed.
The result: leaks, cracking, subsidence… and, above all, an installation that was no longer fit for its intended purpose. A shower that can no longer do its basic job has, all things considered, made a rather poor start to its career. The court therefore held that the ten-year liability cover applied.
And the insurer? The insurer had also disputed whether its policy provided cover. The court, however, noted that the policy covered damage falling within the scope of ten-year liability, and that no sufficient grounds for excluding or refusing cover had been established.
The Result
An attempt to apply an excess… that fails. The insurer had also asked for the plumber to bear a contractual excess of €2,000.
The problem: it had supplied only the policy’s general terms, without the specific policy conditions establishing the excess and how it applied.
The court therefore rejected the request. Sometimes, small details make a big difference.
The Final Outcome?
The court held the plumber liable under the ten-year liability regime and ordered him and his insurer, jointly and severally, to compensate my client for the defects affecting the shower. Compensation for the damage was assessed at €9,486.80 including VAT, corresponding to the quotation submitted, which had not been seriously challenged.
The defendants were also ordered to pay the court costs and a further €2,000 towards legal expenses under Article 700 of the French Code of Civil Procedure.
The judgment remained provisionally enforceable pending any appeal.
And above all: a satisfied client
Beyond the amount awarded, what matters, of course, is the client’s satisfaction. My client was delighted with the judgment. So delighted that he invited me to dinner with him and his wife. I must admit that, in our profession, we sometimes receive very pleasant expressions of thanks.
The Moral of the Story?
Should we always take risks? Certainly not.
Should we always follow the conventional procedure? Not necessarily.
Every case is different. Every client has their own constraints. And every strategy must be chosen in light of the evidence and the risks identified, above all after those risks have been explained to the client.
In this case, we chose to bypass the court-appointed expert assessment. It was a risk. I knew that. So did my client.
But the court ultimately found that the evidence submitted was sufficient to decide the case. Sometimes, in legal proceedings as elsewhere, you have to be prepared to take a chance.
And sometimes, a broken shower turns into… another success for our clients.
