Small claims issue - help
Appreciate this may be a little specialist for a student forum but very worried to be honest so any help is appreciated.
So I've made a small claim against my local council for pothole damage. They filed their defence earlier this week and said they would invite the court to strike out the case under CPR 3.4 . They're arguing that there is no evidence of "causality" that the pothole caused damage to my vehicle, and that I didn't essentially go into enough detail about the "circumstances" of the accident.
Yesterday I got emailed the n180 small claims form and filled it in sent it off. However I can see on the small claims portal that the council have now "made an application to change the case" by post. Any idea what this could be? If they're seeking to strike out the case, what is the likely course of action, particularly if for some reason the court agrees - what kind of costs could I be looking at. I believe this may be some kind of diversion tactic on the part of the council because they know their defence is very weak. I've been given a figure of £1k-£2k by someone as to what costs i might expect, honestly i'm mortified i'm a student and that would wipe out 25% of my savings for absolutely nothing but to pay a council who i actually have a very strong case against, bu tit seems like they've found some technicality.
So I've made a small claim against my local council for pothole damage. They filed their defence earlier this week and said they would invite the court to strike out the case under CPR 3.4 . They're arguing that there is no evidence of "causality" that the pothole caused damage to my vehicle, and that I didn't essentially go into enough detail about the "circumstances" of the accident.
Yesterday I got emailed the n180 small claims form and filled it in sent it off. However I can see on the small claims portal that the council have now "made an application to change the case" by post. Any idea what this could be? If they're seeking to strike out the case, what is the likely course of action, particularly if for some reason the court agrees - what kind of costs could I be looking at. I believe this may be some kind of diversion tactic on the part of the council because they know their defence is very weak. I've been given a figure of £1k-£2k by someone as to what costs i might expect, honestly i'm mortified i'm a student and that would wipe out 25% of my savings for absolutely nothing but to pay a council who i actually have a very strong case against, bu tit seems like they've found some technicality.
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I'm going to preface this as stating this is not legal advice and I would suggest your consulting of a litigation solicitor, please ensure you read the disclaimer at the footing of my response.
Okay, let's go through the particulars of claim:
1. The specific damage to your vehicle includes (Damaged tires, wheel damage, rim damage etc).
2. You assert that the damage occurred because the Council did not adequately maintain the road.
3. As a result of this damage, you incurred repair costs totaling £(However much you have to pay towards repairs)
4. (I am hoping) You have evidence to support your claim, including photographs of the pothole, the damaged area of your vehicle, and any repair receipts.
5. You are seeking compensation for the repair costs and any court fees associated with this claim.
So, what legal ground do we have on this:
Highways Act 1980: This is a key piece of legislation that outlines the responsibilities of local councils for the maintenance of public highways, including roads. Section 41 of the "Act" places a duty on the council to maintain the highway and repair any dangerous defects.
Common Law of Negligence: Claims against local councils often rely on common law principles of negligence. To succeed in such claims, you need to demonstrate that the council owed a duty of care to road users, breached that duty by failing to maintain the road adequately, and that this breach directly caused the damage to your vehicle.
What I am praying you have done already, before bringing the claim:
Gathered evidence:
- Taken clear photographs of the pothole, including its size, depth, and location on the road.
- Documented the damage to your vehicle, both externally and internally, with photographs.
- Collected any repair invoices, receipts, or quotes related to the vehicle repairs.
- Obtain witness statements from anyone who saw the incident or can attest to the pothole's condition.
Read and followed the "Rules and Practice Directions" more importantly "Pre-action Conduct and Protocols":
-Provided a letter before action, including all gathered evidence.
-You have suitably tried to settle the claim outside of court proceedings, such as sending a "Without Prejudice" letter, ADR, etc
Maintained Records:
- Kept a detailed record of all correspondence and communication with the local council regarding the pothole and your claim.
- Maintained a timeline of events, including when the incident occurred, when you reported it, and any responses or actions taken by the council.
So, having done all this right, what do we mean by "no evidence of causality"?
Causality Requirement: To successfully make a claim against the council for pothole damage, you typically need to demonstrate that the pothole directly caused the damage to your vehicle. In legal terms, this is known as establishing a causal connection between the pothole and the harm.
Challenging the Link: The council may argue that there is no concrete evidence to support the claim that the pothole was the direct cause of the vehicle's damage. They may assert that other factors could have contributed to or caused the damage, and without clear proof of causality, they may contest liability.
What can we do to contest this argument?
Evidence Considerations: To counter the "no evidence of causality" argument, it's crucial to provide compelling evidence that demonstrates a clear and direct link between the pothole and the damage. This evidence may include photographs, witness statements, repair invoices, and any other documentation that can establish the sequence of events and the role of the pothole in causing the damage.
Expert Assessment: In some cases, expert opinions or assessments may be necessary to establish causality. For example, a vehicle mechanic or engineer might provide an expert opinion that attributes the damage to the impact with the pothole.
What is meant by "Striking the case under CPR 3.4"?
When the opposing party states that they would invite the court to strike out the case under CPR 3.4, it means they are suggesting that the court should dismiss your case entirely based on certain legal grounds outlined in the Civil Procedure Rules (CPR) Part 3.4. This is a procedural step taken by the defendant to seek the court's intervention in ending the legal proceedings prematurely. The key provision that is often cited in such situations is CPR 3.4(2)(a), which allows for a claim or part of a claim to be struck out if it discloses no reasonable grounds for bringing or defending the claim.
In essence, the council think you don't have enough evidence to "blame" (bring the claim against) them.
What do we do if they succeed with a CPR 3.4 appeal?
If your claim is at risk of being struck out, you would generally need to oppose the striking-out application by addressing the specific grounds on which it is based. This involves presenting your case to the court and arguing against the striking-out application, demonstrating that your claim has merit and should not be dismissed.
What happens if we don't succeed with the appeal?
If the council succeed with their CPR 3.4 appeal, the court may consider costs, and instruct you to pay for the costs incurred on them for bringing the claim against them (legal fees). From here, the case is struck off and the claimant (you) will have your legal proceedings against the council come to an end.
If you are made to pay costs, and cannot agree on the amount, you can request a "Costs Assessment" from the court. This involves a detailed review of the costs claimed by the winning party, and the court will determine a reasonable amount to be paid by the losing party.
In terms of an estimation - it's hard to say.
If you disagree with the premature ending of your claim, you can appeal the decision with a higher court.
To address one last point you made:
What is meant by the council have now "made an application to change the case"?
Amendment of the Defense: The council may want to make amendments or clarifications to their original defense statement. This could involve revising their arguments, providing additional evidence, or addressing specific legal issues raised by the claimant.
Change in Legal Strategy: The council might have identified a need to alter their legal strategy or approach in response to developments in the case or new information that has come to light.
Procedural Matters: It could relate to procedural aspects of the case, such as requesting an extension of deadlines, proposing alternative dispute resolution (ADR) methods, or suggesting case management directions.
Settlement Discussions: The application may be related to discussions about settling the case outside of court, and the council may be proposing a change in the negotiation process.
Challenging the Claim: It's also possible that the council is making a formal request to challenge certain elements of the claimant's case, seeking to narrow down or clarify the issues in dispute.
What can we do right now?
Reaffirm our claim with a email and letter
Before sending a Without Prejudice, we may want to reaffirm the basis of the claim, ensuring that the defendant understands that we bring a strong case before the courts. An example letter for this might look like:
Re: IN THE COUNTY COURT MONEY CLAIMS CENTRE Claim Reference: [Claim Reference]
Dear Sir,
(YOUR NAME) vs (Council Name)
Claim Reference: [Claim Reference]
I write to further my communication dated, (when you last sent communication to them). I write to you today to present a firm and unwavering stance regarding the matter at hand, referenced above. While I am open to constructive dialogue, it is imperative that we both acknowledge the robust legal foundation that underscores my claim. Subsequent to this correspondence, you shall receive my email marked "Without Prejudice Save as to Costs."
It is of paramount importance that we fully understand the legal landscape upon which my claim is anchored:
The Highways Act 1980 imposes a clear-cut statutory obligation upon local authorities, including your distinguished council, to uphold the maintenance and safety of public roadways.On this basis, you are reasonably aware that the negligence of you, the defendant, is responsible for this issue.
The compelling evidence at hand, comprising meticulously captured photographic evidence of the deplorable pothole's dimensions and location, extensive documentation of my vehicle's substantial damages, comprehensive repair invoices, and persuasive witness statements, undeniably substantiates the council's dereliction of its statutory duties.
The doctrine of causality, firmly entrenched in our legal jurisprudence, serves as an unassailable link connecting the lamentable state of the pothole with the extensive harm inflicted upon my vehicle.
I wish to emphasise that my assertion of the council's liability is unwavering and firmly rooted in these legal principles. In the absence of an amicable resolution to this matter I, the claimant, will vigorously pursue the claim.
Should you require additional information or seek clarification on any aspect, please do not hesitate to contact me. For the avoidance of doubt, all official correspondence related to this matter must be directed to the following:
Email: [Your Email Address] Postal Address: [Your Home Address]
Any and all communications, notifications, or submissions, whether written or electronic, should be expressly transmitted to the aforementioned contact points for the duration of these proceedings. This stipulation serves as a formal notice in accordance with established legal practices and ensures clarity in our interactions. Save for the service of documentation in the proceedings (e.g. directions questionnaires, witness statements, skeleton arguments).
Kindly adhere to these directives to maintain the requisite transparency and efficiency throughout the course of this matter. Your swift attention to this matter is appreciated.
Yours Sincerely,
[Your name]
Send a Without Prejudice (Save as to Costs) Letter
By using the Without Prejudice (Save as to Costs), we can use the communication between us and the council when it comes to the consideration of costs, but the communication can't be used against us during the claim. If you don't know what a Without Prejudice letter is, we are basically showing a genuine attempt to settle the case outside of court, with the safety of knowing that the communication cannot be used against us in court.
An example of a Without Prejudice (Save as to Costs) letter for this situation would look a little like:
Re: WITHOUT PREJUDICE SAVE AS TO COSTS (Your Name) vs. (Council Name)
Claim Reference: [Claim Reference]
Dear [Recipient's Name],
I write to you under the "Without Prejudice Save as to Costs" principle concerning our ongoing matter as referenced above.
I remain committed to finding an equitable resolution to this issue, without resorting to costly legal proceedings. I am open to exploring alternative dispute resolution methods, such as mediation or negotiation, with the goal of reaching a mutually agreeable settlement.
It's crucial to note that my assertion of the council's liability is unwavering and firmly based on established legal principles, as previously explained. This communication does not imply any admission of liability on my part or a waiver of my right to recover costs if legal action becomes necessary.
I await your prompt response, indicating your willingness to engage in substantive discussions to resolve this matter. If you require additional information or clarification, please do not hesitate to contact me using the details provided in my previous correspondence. Pursuant to an amicable conclusion to this matter, I request payment of £XX.XX, which must be paid to (Bank Details), following payment before the commencement of proceedings I will instruct the respective county court to stay this matter.
I hope that common sense will prevail, and appreciate your attention, in this matter.
Yours sincerely,
[Your name]
You may want to request that the defendant provides a schedule for payment, and have the terms agreed in a court document, they can apply for a tomlin order.
You can say
"In light of our ongoing negotiations and any potential refinements to our settlement terms, I kindly request your timely response with a signed Tomlin Order. In the event that the terms we have agreed upon are accurately reflected in the schedule, a counter-signed version will be provided to both you and the county court with instruction to stay the proceedings."
Once you received a signed copy, you will have to sign it, and send it to the defendant, before sending to the courts instructing them to stay proceedings.
Disclaimer:
I am not a licensed attorney, lawyer, barrister or legal professional and the information provided in my responses, messages, or any communication should not be construed as legal advice. My response is based on general knowledge and information readily available on the internet and is based on previous experiences in the legal system. Legal matters are inherently complex and contingent upon specific circumstances. It is strongly recommended that you seek the counsel of a duly licensed legal professional for advice tailored to your particular situation. Any actions or decisions taken based on the information I provide are done so at your own risk and discretion.
Okay, let's go through the particulars of claim:
1. The specific damage to your vehicle includes (Damaged tires, wheel damage, rim damage etc).
2. You assert that the damage occurred because the Council did not adequately maintain the road.
3. As a result of this damage, you incurred repair costs totaling £(However much you have to pay towards repairs)
4. (I am hoping) You have evidence to support your claim, including photographs of the pothole, the damaged area of your vehicle, and any repair receipts.
5. You are seeking compensation for the repair costs and any court fees associated with this claim.
So, what legal ground do we have on this:
Highways Act 1980: This is a key piece of legislation that outlines the responsibilities of local councils for the maintenance of public highways, including roads. Section 41 of the "Act" places a duty on the council to maintain the highway and repair any dangerous defects.
Common Law of Negligence: Claims against local councils often rely on common law principles of negligence. To succeed in such claims, you need to demonstrate that the council owed a duty of care to road users, breached that duty by failing to maintain the road adequately, and that this breach directly caused the damage to your vehicle.
What I am praying you have done already, before bringing the claim:
Gathered evidence:
- Taken clear photographs of the pothole, including its size, depth, and location on the road.
- Documented the damage to your vehicle, both externally and internally, with photographs.
- Collected any repair invoices, receipts, or quotes related to the vehicle repairs.
- Obtain witness statements from anyone who saw the incident or can attest to the pothole's condition.
Read and followed the "Rules and Practice Directions" more importantly "Pre-action Conduct and Protocols":
-Provided a letter before action, including all gathered evidence.
-You have suitably tried to settle the claim outside of court proceedings, such as sending a "Without Prejudice" letter, ADR, etc
Maintained Records:
- Kept a detailed record of all correspondence and communication with the local council regarding the pothole and your claim.
- Maintained a timeline of events, including when the incident occurred, when you reported it, and any responses or actions taken by the council.
So, having done all this right, what do we mean by "no evidence of causality"?
Causality Requirement: To successfully make a claim against the council for pothole damage, you typically need to demonstrate that the pothole directly caused the damage to your vehicle. In legal terms, this is known as establishing a causal connection between the pothole and the harm.
Challenging the Link: The council may argue that there is no concrete evidence to support the claim that the pothole was the direct cause of the vehicle's damage. They may assert that other factors could have contributed to or caused the damage, and without clear proof of causality, they may contest liability.
What can we do to contest this argument?
Evidence Considerations: To counter the "no evidence of causality" argument, it's crucial to provide compelling evidence that demonstrates a clear and direct link between the pothole and the damage. This evidence may include photographs, witness statements, repair invoices, and any other documentation that can establish the sequence of events and the role of the pothole in causing the damage.
Expert Assessment: In some cases, expert opinions or assessments may be necessary to establish causality. For example, a vehicle mechanic or engineer might provide an expert opinion that attributes the damage to the impact with the pothole.
What is meant by "Striking the case under CPR 3.4"?
When the opposing party states that they would invite the court to strike out the case under CPR 3.4, it means they are suggesting that the court should dismiss your case entirely based on certain legal grounds outlined in the Civil Procedure Rules (CPR) Part 3.4. This is a procedural step taken by the defendant to seek the court's intervention in ending the legal proceedings prematurely. The key provision that is often cited in such situations is CPR 3.4(2)(a), which allows for a claim or part of a claim to be struck out if it discloses no reasonable grounds for bringing or defending the claim.
In essence, the council think you don't have enough evidence to "blame" (bring the claim against) them.
What do we do if they succeed with a CPR 3.4 appeal?
If your claim is at risk of being struck out, you would generally need to oppose the striking-out application by addressing the specific grounds on which it is based. This involves presenting your case to the court and arguing against the striking-out application, demonstrating that your claim has merit and should not be dismissed.
What happens if we don't succeed with the appeal?
If the council succeed with their CPR 3.4 appeal, the court may consider costs, and instruct you to pay for the costs incurred on them for bringing the claim against them (legal fees). From here, the case is struck off and the claimant (you) will have your legal proceedings against the council come to an end.
If you are made to pay costs, and cannot agree on the amount, you can request a "Costs Assessment" from the court. This involves a detailed review of the costs claimed by the winning party, and the court will determine a reasonable amount to be paid by the losing party.
In terms of an estimation - it's hard to say.
If you disagree with the premature ending of your claim, you can appeal the decision with a higher court.
To address one last point you made:
What is meant by the council have now "made an application to change the case"?
Amendment of the Defense: The council may want to make amendments or clarifications to their original defense statement. This could involve revising their arguments, providing additional evidence, or addressing specific legal issues raised by the claimant.
Change in Legal Strategy: The council might have identified a need to alter their legal strategy or approach in response to developments in the case or new information that has come to light.
Procedural Matters: It could relate to procedural aspects of the case, such as requesting an extension of deadlines, proposing alternative dispute resolution (ADR) methods, or suggesting case management directions.
Settlement Discussions: The application may be related to discussions about settling the case outside of court, and the council may be proposing a change in the negotiation process.
Challenging the Claim: It's also possible that the council is making a formal request to challenge certain elements of the claimant's case, seeking to narrow down or clarify the issues in dispute.
What can we do right now?
Reaffirm our claim with a email and letter
Before sending a Without Prejudice, we may want to reaffirm the basis of the claim, ensuring that the defendant understands that we bring a strong case before the courts. An example letter for this might look like:
Re: IN THE COUNTY COURT MONEY CLAIMS CENTRE Claim Reference: [Claim Reference]
Dear Sir,
(YOUR NAME) vs (Council Name)
Claim Reference: [Claim Reference]
I write to further my communication dated, (when you last sent communication to them). I write to you today to present a firm and unwavering stance regarding the matter at hand, referenced above. While I am open to constructive dialogue, it is imperative that we both acknowledge the robust legal foundation that underscores my claim. Subsequent to this correspondence, you shall receive my email marked "Without Prejudice Save as to Costs."
It is of paramount importance that we fully understand the legal landscape upon which my claim is anchored:
The Highways Act 1980 imposes a clear-cut statutory obligation upon local authorities, including your distinguished council, to uphold the maintenance and safety of public roadways.On this basis, you are reasonably aware that the negligence of you, the defendant, is responsible for this issue.
The compelling evidence at hand, comprising meticulously captured photographic evidence of the deplorable pothole's dimensions and location, extensive documentation of my vehicle's substantial damages, comprehensive repair invoices, and persuasive witness statements, undeniably substantiates the council's dereliction of its statutory duties.
The doctrine of causality, firmly entrenched in our legal jurisprudence, serves as an unassailable link connecting the lamentable state of the pothole with the extensive harm inflicted upon my vehicle.
I wish to emphasise that my assertion of the council's liability is unwavering and firmly rooted in these legal principles. In the absence of an amicable resolution to this matter I, the claimant, will vigorously pursue the claim.
Should you require additional information or seek clarification on any aspect, please do not hesitate to contact me. For the avoidance of doubt, all official correspondence related to this matter must be directed to the following:
Email: [Your Email Address] Postal Address: [Your Home Address]
Any and all communications, notifications, or submissions, whether written or electronic, should be expressly transmitted to the aforementioned contact points for the duration of these proceedings. This stipulation serves as a formal notice in accordance with established legal practices and ensures clarity in our interactions. Save for the service of documentation in the proceedings (e.g. directions questionnaires, witness statements, skeleton arguments).
Kindly adhere to these directives to maintain the requisite transparency and efficiency throughout the course of this matter. Your swift attention to this matter is appreciated.
Yours Sincerely,
[Your name]
Send a Without Prejudice (Save as to Costs) Letter
By using the Without Prejudice (Save as to Costs), we can use the communication between us and the council when it comes to the consideration of costs, but the communication can't be used against us during the claim. If you don't know what a Without Prejudice letter is, we are basically showing a genuine attempt to settle the case outside of court, with the safety of knowing that the communication cannot be used against us in court.
An example of a Without Prejudice (Save as to Costs) letter for this situation would look a little like:
Re: WITHOUT PREJUDICE SAVE AS TO COSTS (Your Name) vs. (Council Name)
Claim Reference: [Claim Reference]
Dear [Recipient's Name],
I write to you under the "Without Prejudice Save as to Costs" principle concerning our ongoing matter as referenced above.
I remain committed to finding an equitable resolution to this issue, without resorting to costly legal proceedings. I am open to exploring alternative dispute resolution methods, such as mediation or negotiation, with the goal of reaching a mutually agreeable settlement.
It's crucial to note that my assertion of the council's liability is unwavering and firmly based on established legal principles, as previously explained. This communication does not imply any admission of liability on my part or a waiver of my right to recover costs if legal action becomes necessary.
I await your prompt response, indicating your willingness to engage in substantive discussions to resolve this matter. If you require additional information or clarification, please do not hesitate to contact me using the details provided in my previous correspondence. Pursuant to an amicable conclusion to this matter, I request payment of £XX.XX, which must be paid to (Bank Details), following payment before the commencement of proceedings I will instruct the respective county court to stay this matter.
I hope that common sense will prevail, and appreciate your attention, in this matter.
Yours sincerely,
[Your name]
You may want to request that the defendant provides a schedule for payment, and have the terms agreed in a court document, they can apply for a tomlin order.
You can say
"In light of our ongoing negotiations and any potential refinements to our settlement terms, I kindly request your timely response with a signed Tomlin Order. In the event that the terms we have agreed upon are accurately reflected in the schedule, a counter-signed version will be provided to both you and the county court with instruction to stay the proceedings."
Once you received a signed copy, you will have to sign it, and send it to the defendant, before sending to the courts instructing them to stay proceedings.
Disclaimer:
I am not a licensed attorney, lawyer, barrister or legal professional and the information provided in my responses, messages, or any communication should not be construed as legal advice. My response is based on general knowledge and information readily available on the internet and is based on previous experiences in the legal system. Legal matters are inherently complex and contingent upon specific circumstances. It is strongly recommended that you seek the counsel of a duly licensed legal professional for advice tailored to your particular situation. Any actions or decisions taken based on the information I provide are done so at your own risk and discretion.
(edited 7 months ago)
Original post by CompSciJP
I'm going to preface this as stating this is not legal advice and I would suggest your consulting of a litigation solicitor, please ensure you read the disclaimer at the footing of my response.
Okay, let's go through the particulars of claim:
1. The specific damage to your vehicle includes (Damaged tires, wheel damage, rim damage etc).
2. You assert that the damage occurred because the Council did not adequately maintain the road.
3. As a result of this damage, you incurred repair costs totaling £(However much you have to pay towards repairs)
4. (I am hoping) You have evidence to support your claim, including photographs of the pothole, the damaged area of your vehicle, and any repair receipts.
5. You are seeking compensation for the repair costs and any court fees associated with this claim.
So, what legal ground do we have on this:
Highways Act 1980: This is a key piece of legislation that outlines the responsibilities of local councils for the maintenance of public highways, including roads. Section 41 of the "Act" places a duty on the council to maintain the highway and repair any dangerous defects.
Common Law of Negligence: Claims against local councils often rely on common law principles of negligence. To succeed in such claims, you need to demonstrate that the council owed a duty of care to road users, breached that duty by failing to maintain the road adequately, and that this breach directly caused the damage to your vehicle.
What I am praying you have done already, before bringing the claim:
Gathered evidence:
- Taken clear photographs of the pothole, including its size, depth, and location on the road.
- Documented the damage to your vehicle, both externally and internally, with photographs.
- Collected any repair invoices, receipts, or quotes related to the vehicle repairs.
- Obtain witness statements from anyone who saw the incident or can attest to the pothole's condition.
Read and followed the "Rules and Practice Directions" more importantly "Pre-action Conduct and Protocols":
-Provided a letter before action, including all gathered evidence.
-You have suitably tried to settle the claim outside of court proceedings, such as sending a "Without Prejudice" letter, ADR, etc
Maintained Records:
- Kept a detailed record of all correspondence and communication with the local council regarding the pothole and your claim.
- Maintained a timeline of events, including when the incident occurred, when you reported it, and any responses or actions taken by the council.
So, having done all this right, what do we mean by "no evidence of causality"?
Causality Requirement: To successfully make a claim against the council for pothole damage, you typically need to demonstrate that the pothole directly caused the damage to your vehicle. In legal terms, this is known as establishing a causal connection between the pothole and the harm.
Challenging the Link: The council may argue that there is no concrete evidence to support the claim that the pothole was the direct cause of the vehicle's damage. They may assert that other factors could have contributed to or caused the damage, and without clear proof of causality, they may contest liability.
What can we do to contest this argument?
Evidence Considerations: To counter the "no evidence of causality" argument, it's crucial to provide compelling evidence that demonstrates a clear and direct link between the pothole and the damage. This evidence may include photographs, witness statements, repair invoices, and any other documentation that can establish the sequence of events and the role of the pothole in causing the damage.
Expert Assessment: In some cases, expert opinions or assessments may be necessary to establish causality. For example, a vehicle mechanic or engineer might provide an expert opinion that attributes the damage to the impact with the pothole.
What is meant by "Striking the case under CPR 3.4"?
When the opposing party states that they would invite the court to strike out the case under CPR 3.4, it means they are suggesting that the court should dismiss your case entirely based on certain legal grounds outlined in the Civil Procedure Rules (CPR) Part 3.4. This is a procedural step taken by the defendant to seek the court's intervention in ending the legal proceedings prematurely. The key provision that is often cited in such situations is CPR 3.4(2)(a), which allows for a claim or part of a claim to be struck out if it discloses no reasonable grounds for bringing or defending the claim.
In essence, the council think you don't have enough evidence to "blame" (bring the claim against) them.
What do we do if they succeed with a CPR 3.4 appeal?
If your claim is at risk of being struck out, you would generally need to oppose the striking-out application by addressing the specific grounds on which it is based. This involves presenting your case to the court and arguing against the striking-out application, demonstrating that your claim has merit and should not be dismissed.
What happens if we don't succeed with the appeal?
If the council succeed with their CPR 3.4 appeal, the court may consider costs, and instruct you to pay for the costs incurred on them for bringing the claim against them (legal fees). From here, the case is struck off and the claimant (you) will have your legal proceedings against the council come to an end.
If you are made to pay costs, and cannot agree on the amount, you can request a "Costs Assessment" from the court. This involves a detailed review of the costs claimed by the winning party, and the court will determine a reasonable amount to be paid by the losing party.
In terms of an estimation - it's hard to say.
If you disagree with the premature ending of your claim, you can appeal the decision with a higher court.
To address one last point you made:
What is meant by the council have now "made an application to change the case"?
Amendment of the Defense: The council may want to make amendments or clarifications to their original defense statement. This could involve revising their arguments, providing additional evidence, or addressing specific legal issues raised by the claimant.
Change in Legal Strategy: The council might have identified a need to alter their legal strategy or approach in response to developments in the case or new information that has come to light.
Procedural Matters: It could relate to procedural aspects of the case, such as requesting an extension of deadlines, proposing alternative dispute resolution (ADR) methods, or suggesting case management directions.
Settlement Discussions: The application may be related to discussions about settling the case outside of court, and the council may be proposing a change in the negotiation process.
Challenging the Claim: It's also possible that the council is making a formal request to challenge certain elements of the claimant's case, seeking to narrow down or clarify the issues in dispute.
What can we do right now?
Reaffirm our claim with a email and letter
Before sending a Without Prejudice, we may want to reaffirm the basis of the claim, ensuring that the defendant understands that we bring a strong case before the courts. An example letter for this might look like:
Re: IN THE COUNTY COURT MONEY CLAIMS CENTRE Claim Reference: [Claim Reference]
Dear Sir,
(YOUR NAME) vs (Council Name)
Claim Reference: [Claim Reference]
I write to further my communication dated, (when you last sent communication to them). I write to you today to present a firm and unwavering stance regarding the matter at hand, referenced above. While I am open to constructive dialogue, it is imperative that we both acknowledge the robust legal foundation that underscores my claim. Subsequent to this correspondence, you shall receive my email marked "Without Prejudice Save as to Costs."
It is of paramount importance that we fully understand the legal landscape upon which my claim is anchored:
The Highways Act 1980 imposes a clear-cut statutory obligation upon local authorities, including your distinguished council, to uphold the maintenance and safety of public roadways.On this basis, you are reasonably aware that the negligence of you, the defendant, is responsible for this issue.
The compelling evidence at hand, comprising meticulously captured photographic evidence of the deplorable pothole's dimensions and location, extensive documentation of my vehicle's substantial damages, comprehensive repair invoices, and persuasive witness statements, undeniably substantiates the council's dereliction of its statutory duties.
The doctrine of causality, firmly entrenched in our legal jurisprudence, serves as an unassailable link connecting the lamentable state of the pothole with the extensive harm inflicted upon my vehicle.
I wish to emphasise that my assertion of the council's liability is unwavering and firmly rooted in these legal principles. In the absence of an amicable resolution to this matter I, the claimant, will vigorously pursue the claim.
Should you require additional information or seek clarification on any aspect, please do not hesitate to contact me. For the avoidance of doubt, all official correspondence related to this matter must be directed to the following:
Email: [Your Email Address] Postal Address: [Your Home Address]
Any and all communications, notifications, or submissions, whether written or electronic, should be expressly transmitted to the aforementioned contact points for the duration of these proceedings. This stipulation serves as a formal notice in accordance with established legal practices and ensures clarity in our interactions. Save for the service of documentation in the proceedings (e.g. directions questionnaires, witness statements, skeleton arguments).
Kindly adhere to these directives to maintain the requisite transparency and efficiency throughout the course of this matter. Your swift attention to this matter is appreciated.
Yours Sincerely,
[Your name]
Send a Without Prejudice (Save as to Costs) Letter
By using the Without Prejudice (Save as to Costs), we can use the communication between us and the council when it comes to the consideration of costs, but the communication can't be used against us during the claim. If you don't know what a Without Prejudice letter is, we are basically showing a genuine attempt to settle the case outside of court, with the safety of knowing that the communication cannot be used against us in court.
An example of a Without Prejudice (Save as to Costs) letter for this situation would look a little like:
Re: WITHOUT PREJUDICE SAVE AS TO COSTS (Your Name) vs. (Council Name)
Claim Reference: [Claim Reference]
Dear [Recipient's Name],
I write to you under the "Without Prejudice Save as to Costs" principle concerning our ongoing matter as referenced above.
I remain committed to finding an equitable resolution to this issue, without resorting to costly legal proceedings. I am open to exploring alternative dispute resolution methods, such as mediation or negotiation, with the goal of reaching a mutually agreeable settlement.
It's crucial to note that my assertion of the council's liability is unwavering and firmly based on established legal principles, as previously explained. This communication does not imply any admission of liability on my part or a waiver of my right to recover costs if legal action becomes necessary.
I await your prompt response, indicating your willingness to engage in substantive discussions to resolve this matter. If you require additional information or clarification, please do not hesitate to contact me using the details provided in my previous correspondence. Pursuant to an amicable conclusion to this matter, I request payment of £XX.XX, which must be paid to (Bank Details), following payment before the commencement of proceedings I will instruct the respective county court to stay this matter.
I hope that common sense will prevail, and appreciate your attention, in this matter.
Yours sincerely,
[Your name]
You may want to request that the defendant provides a schedule for payment, and have the terms agreed in a court document, they can apply for a tomlin order.
You can say
"In light of our ongoing negotiations and any potential refinements to our settlement terms, I kindly request your timely response with a signed Tomlin Order. In the event that the terms we have agreed upon are accurately reflected in the schedule, a counter-signed version will be provided to both you and the county court with instruction to stay the proceedings."
Once you received a signed copy, you will have to sign it, and send it to the defendant, before sending to the courts instructing them to stay proceedings.
Disclaimer:
I am not a licensed attorney, lawyer, barrister or legal professional and the information provided in my responses, messages, or any communication should not be construed as legal advice. My response is based on general knowledge and information readily available on the internet and is based on previous experiences in the legal system. Legal matters are inherently complex and contingent upon specific circumstances. It is strongly recommended that you seek the counsel of a duly licensed legal professional for advice tailored to your particular situation. Any actions or decisions taken based on the information I provide are done so at your own risk and discretion.
Okay, let's go through the particulars of claim:
1. The specific damage to your vehicle includes (Damaged tires, wheel damage, rim damage etc).
2. You assert that the damage occurred because the Council did not adequately maintain the road.
3. As a result of this damage, you incurred repair costs totaling £(However much you have to pay towards repairs)
4. (I am hoping) You have evidence to support your claim, including photographs of the pothole, the damaged area of your vehicle, and any repair receipts.
5. You are seeking compensation for the repair costs and any court fees associated with this claim.
So, what legal ground do we have on this:
Highways Act 1980: This is a key piece of legislation that outlines the responsibilities of local councils for the maintenance of public highways, including roads. Section 41 of the "Act" places a duty on the council to maintain the highway and repair any dangerous defects.
Common Law of Negligence: Claims against local councils often rely on common law principles of negligence. To succeed in such claims, you need to demonstrate that the council owed a duty of care to road users, breached that duty by failing to maintain the road adequately, and that this breach directly caused the damage to your vehicle.
What I am praying you have done already, before bringing the claim:
Gathered evidence:
- Taken clear photographs of the pothole, including its size, depth, and location on the road.
- Documented the damage to your vehicle, both externally and internally, with photographs.
- Collected any repair invoices, receipts, or quotes related to the vehicle repairs.
- Obtain witness statements from anyone who saw the incident or can attest to the pothole's condition.
Read and followed the "Rules and Practice Directions" more importantly "Pre-action Conduct and Protocols":
-Provided a letter before action, including all gathered evidence.
-You have suitably tried to settle the claim outside of court proceedings, such as sending a "Without Prejudice" letter, ADR, etc
Maintained Records:
- Kept a detailed record of all correspondence and communication with the local council regarding the pothole and your claim.
- Maintained a timeline of events, including when the incident occurred, when you reported it, and any responses or actions taken by the council.
So, having done all this right, what do we mean by "no evidence of causality"?
Causality Requirement: To successfully make a claim against the council for pothole damage, you typically need to demonstrate that the pothole directly caused the damage to your vehicle. In legal terms, this is known as establishing a causal connection between the pothole and the harm.
Challenging the Link: The council may argue that there is no concrete evidence to support the claim that the pothole was the direct cause of the vehicle's damage. They may assert that other factors could have contributed to or caused the damage, and without clear proof of causality, they may contest liability.
What can we do to contest this argument?
Evidence Considerations: To counter the "no evidence of causality" argument, it's crucial to provide compelling evidence that demonstrates a clear and direct link between the pothole and the damage. This evidence may include photographs, witness statements, repair invoices, and any other documentation that can establish the sequence of events and the role of the pothole in causing the damage.
Expert Assessment: In some cases, expert opinions or assessments may be necessary to establish causality. For example, a vehicle mechanic or engineer might provide an expert opinion that attributes the damage to the impact with the pothole.
What is meant by "Striking the case under CPR 3.4"?
When the opposing party states that they would invite the court to strike out the case under CPR 3.4, it means they are suggesting that the court should dismiss your case entirely based on certain legal grounds outlined in the Civil Procedure Rules (CPR) Part 3.4. This is a procedural step taken by the defendant to seek the court's intervention in ending the legal proceedings prematurely. The key provision that is often cited in such situations is CPR 3.4(2)(a), which allows for a claim or part of a claim to be struck out if it discloses no reasonable grounds for bringing or defending the claim.
In essence, the council think you don't have enough evidence to "blame" (bring the claim against) them.
What do we do if they succeed with a CPR 3.4 appeal?
If your claim is at risk of being struck out, you would generally need to oppose the striking-out application by addressing the specific grounds on which it is based. This involves presenting your case to the court and arguing against the striking-out application, demonstrating that your claim has merit and should not be dismissed.
What happens if we don't succeed with the appeal?
If the council succeed with their CPR 3.4 appeal, the court may consider costs, and instruct you to pay for the costs incurred on them for bringing the claim against them (legal fees). From here, the case is struck off and the claimant (you) will have your legal proceedings against the council come to an end.
If you are made to pay costs, and cannot agree on the amount, you can request a "Costs Assessment" from the court. This involves a detailed review of the costs claimed by the winning party, and the court will determine a reasonable amount to be paid by the losing party.
In terms of an estimation - it's hard to say.
If you disagree with the premature ending of your claim, you can appeal the decision with a higher court.
To address one last point you made:
What is meant by the council have now "made an application to change the case"?
Amendment of the Defense: The council may want to make amendments or clarifications to their original defense statement. This could involve revising their arguments, providing additional evidence, or addressing specific legal issues raised by the claimant.
Change in Legal Strategy: The council might have identified a need to alter their legal strategy or approach in response to developments in the case or new information that has come to light.
Procedural Matters: It could relate to procedural aspects of the case, such as requesting an extension of deadlines, proposing alternative dispute resolution (ADR) methods, or suggesting case management directions.
Settlement Discussions: The application may be related to discussions about settling the case outside of court, and the council may be proposing a change in the negotiation process.
Challenging the Claim: It's also possible that the council is making a formal request to challenge certain elements of the claimant's case, seeking to narrow down or clarify the issues in dispute.
What can we do right now?
Reaffirm our claim with a email and letter
Before sending a Without Prejudice, we may want to reaffirm the basis of the claim, ensuring that the defendant understands that we bring a strong case before the courts. An example letter for this might look like:
Re: IN THE COUNTY COURT MONEY CLAIMS CENTRE Claim Reference: [Claim Reference]
Dear Sir,
(YOUR NAME) vs (Council Name)
Claim Reference: [Claim Reference]
I write to further my communication dated, (when you last sent communication to them). I write to you today to present a firm and unwavering stance regarding the matter at hand, referenced above. While I am open to constructive dialogue, it is imperative that we both acknowledge the robust legal foundation that underscores my claim. Subsequent to this correspondence, you shall receive my email marked "Without Prejudice Save as to Costs."
It is of paramount importance that we fully understand the legal landscape upon which my claim is anchored:
The Highways Act 1980 imposes a clear-cut statutory obligation upon local authorities, including your distinguished council, to uphold the maintenance and safety of public roadways.On this basis, you are reasonably aware that the negligence of you, the defendant, is responsible for this issue.
The compelling evidence at hand, comprising meticulously captured photographic evidence of the deplorable pothole's dimensions and location, extensive documentation of my vehicle's substantial damages, comprehensive repair invoices, and persuasive witness statements, undeniably substantiates the council's dereliction of its statutory duties.
The doctrine of causality, firmly entrenched in our legal jurisprudence, serves as an unassailable link connecting the lamentable state of the pothole with the extensive harm inflicted upon my vehicle.
I wish to emphasise that my assertion of the council's liability is unwavering and firmly rooted in these legal principles. In the absence of an amicable resolution to this matter I, the claimant, will vigorously pursue the claim.
Should you require additional information or seek clarification on any aspect, please do not hesitate to contact me. For the avoidance of doubt, all official correspondence related to this matter must be directed to the following:
Email: [Your Email Address] Postal Address: [Your Home Address]
Any and all communications, notifications, or submissions, whether written or electronic, should be expressly transmitted to the aforementioned contact points for the duration of these proceedings. This stipulation serves as a formal notice in accordance with established legal practices and ensures clarity in our interactions. Save for the service of documentation in the proceedings (e.g. directions questionnaires, witness statements, skeleton arguments).
Kindly adhere to these directives to maintain the requisite transparency and efficiency throughout the course of this matter. Your swift attention to this matter is appreciated.
Yours Sincerely,
[Your name]
Send a Without Prejudice (Save as to Costs) Letter
By using the Without Prejudice (Save as to Costs), we can use the communication between us and the council when it comes to the consideration of costs, but the communication can't be used against us during the claim. If you don't know what a Without Prejudice letter is, we are basically showing a genuine attempt to settle the case outside of court, with the safety of knowing that the communication cannot be used against us in court.
An example of a Without Prejudice (Save as to Costs) letter for this situation would look a little like:
Re: WITHOUT PREJUDICE SAVE AS TO COSTS (Your Name) vs. (Council Name)
Claim Reference: [Claim Reference]
Dear [Recipient's Name],
I write to you under the "Without Prejudice Save as to Costs" principle concerning our ongoing matter as referenced above.
I remain committed to finding an equitable resolution to this issue, without resorting to costly legal proceedings. I am open to exploring alternative dispute resolution methods, such as mediation or negotiation, with the goal of reaching a mutually agreeable settlement.
It's crucial to note that my assertion of the council's liability is unwavering and firmly based on established legal principles, as previously explained. This communication does not imply any admission of liability on my part or a waiver of my right to recover costs if legal action becomes necessary.
I await your prompt response, indicating your willingness to engage in substantive discussions to resolve this matter. If you require additional information or clarification, please do not hesitate to contact me using the details provided in my previous correspondence. Pursuant to an amicable conclusion to this matter, I request payment of £XX.XX, which must be paid to (Bank Details), following payment before the commencement of proceedings I will instruct the respective county court to stay this matter.
I hope that common sense will prevail, and appreciate your attention, in this matter.
Yours sincerely,
[Your name]
You may want to request that the defendant provides a schedule for payment, and have the terms agreed in a court document, they can apply for a tomlin order.
You can say
"In light of our ongoing negotiations and any potential refinements to our settlement terms, I kindly request your timely response with a signed Tomlin Order. In the event that the terms we have agreed upon are accurately reflected in the schedule, a counter-signed version will be provided to both you and the county court with instruction to stay the proceedings."
Once you received a signed copy, you will have to sign it, and send it to the defendant, before sending to the courts instructing them to stay proceedings.
Disclaimer:
I am not a licensed attorney, lawyer, barrister or legal professional and the information provided in my responses, messages, or any communication should not be construed as legal advice. My response is based on general knowledge and information readily available on the internet and is based on previous experiences in the legal system. Legal matters are inherently complex and contingent upon specific circumstances. It is strongly recommended that you seek the counsel of a duly licensed legal professional for advice tailored to your particular situation. Any actions or decisions taken based on the information I provide are done so at your own risk and discretion.
Thank you for that, very detailed.
Yes I have all the evidence you said, invoices etc. However i am yet to get anything from the garages that did the repairs to corroborate.
I've spoken to garage 1 - they've kept promising to send a letter across but haven't. (they found broken suspension links and fixed them)
garage 2 - says it would be impossible to prove the pothole itself caused the damage (they found broken shock absorbers and fixed them) , and weren't willing to do a letter and believed it would be futile.
The evidence I have:
1) two repair invoices
2) dashcam footage of the moment I hit the hole.
3) screenshots from the council website saying the pothole already existed
4) a ton of FOI data revealing the defect was known about for 4 years
5) my own measurement of the pothole as 200mm compared to the council's own measurement as 70mm
6) screenshots of the council's own criteria for grading a pothole as dangerous which doi not correspond with the damage i suffered
7) witness who had his car damaged at the site just a month after the council declared it to be non dangerous
8) witness in the form of a resident of the road who has sent me a photo of a car stuck in the hole and says several cars got stuck in it around november-december 2022 when the council had supposedly inspected it last.
I was sent the N180 the same day i found this out and agreed for mediation and for a judge to decide without the need for a hearing.
Is it worth asking the court tommorow what application they have made?
(edited 7 months ago)
Great, it's crucial to emphasise the ongoing importance of evidence collection.
If you're encountering difficulties in obtaining the required letter from the garage, consider initiating a record of your communication with them. Essentially, if the garage continues to withhold crucial evidence from the court, it may be prudent to prepare a counterclaim against them. This proactive step could be necessary if you anticipate that the outcome of your claim might be jeopardised or has already been negatively impacted by their failure to cooperate and you have incurred costs because of this.
Before doing so, however, you should give them polite notice of your court proceedings against the council and allowing them a reasonable time to respond, usually 14 days. It is important that they understand that they have to include the statement of truth in their responsive letter:
"I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.
I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
Part 22 deals with statements of truth. Rule 32.14 sets out the consequences of verifying a document containing a false statement without an honest belief in its truth.)"
In terms of reaching out to the court, you shouldn't need to, if there is a significant change to the claim the court will notify both the claimant and the defendant.
You didn't include in your response, did you send the council a Letter Before Action (LBA)?
If you're encountering difficulties in obtaining the required letter from the garage, consider initiating a record of your communication with them. Essentially, if the garage continues to withhold crucial evidence from the court, it may be prudent to prepare a counterclaim against them. This proactive step could be necessary if you anticipate that the outcome of your claim might be jeopardised or has already been negatively impacted by their failure to cooperate and you have incurred costs because of this.
Before doing so, however, you should give them polite notice of your court proceedings against the council and allowing them a reasonable time to respond, usually 14 days. It is important that they understand that they have to include the statement of truth in their responsive letter:
"I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.
I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
Part 22 deals with statements of truth. Rule 32.14 sets out the consequences of verifying a document containing a false statement without an honest belief in its truth.)"
In terms of reaching out to the court, you shouldn't need to, if there is a significant change to the claim the court will notify both the claimant and the defendant.
You didn't include in your response, did you send the council a Letter Before Action (LBA)?
(edited 7 months ago)
Original post by CompSciJP
Great, it's crucial to emphasise the ongoing importance of evidence collection.
If you're encountering difficulties in obtaining the required letter from the garage, consider initiating a record of your communication with them. Essentially, if the garage continues to withhold crucial evidence from the court, it may be prudent to prepare a counterclaim against them. This proactive step could be necessary if you anticipate that the outcome of your claim might be jeopardised or has already been negatively impacted by their failure to cooperate and you have incurred costs because of this.
Before doing so, however, you should give them polite notice of your court proceedings against the council and allowing them a reasonable time to respond, usually 14 days. It is important that they understand that they have to include the statement of truth in their responsive letter:
"I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.
I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
Part 22 deals with statements of truth. Rule 32.14 sets out the consequences of verifying a document containing a false statement without an honest belief in its truth.)"
In terms of reaching out to the court, you shouldn't need to, if there is a significant change to the claim the court will notify both the claimant and the defendant.
You didn't include in your response, did you send the council a Letter Before Action (LBA)?
If you're encountering difficulties in obtaining the required letter from the garage, consider initiating a record of your communication with them. Essentially, if the garage continues to withhold crucial evidence from the court, it may be prudent to prepare a counterclaim against them. This proactive step could be necessary if you anticipate that the outcome of your claim might be jeopardised or has already been negatively impacted by their failure to cooperate and you have incurred costs because of this.
Before doing so, however, you should give them polite notice of your court proceedings against the council and allowing them a reasonable time to respond, usually 14 days. It is important that they understand that they have to include the statement of truth in their responsive letter:
"I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.
I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
Part 22 deals with statements of truth. Rule 32.14 sets out the consequences of verifying a document containing a false statement without an honest belief in its truth.)"
In terms of reaching out to the court, you shouldn't need to, if there is a significant change to the claim the court will notify both the claimant and the defendant.
You didn't include in your response, did you send the council a Letter Before Action (LBA)?
Yes, I had submitted a LBA, and they had responded within 2 days repeating denial. Before that i had sent them correspondence rejecting their rejection of my claim, and another email showing them new evidence.
I'm not sure if issuing a counter claim against the garage is anyone's interest. The "garage" has now closed down so its just an individual i am speaking to. I have the invoice and i also havce a screenshot of the text conversation (i know itr's not great) showing him say the car bottomed out causing the suspension links to go. I think the issue is is that he didn't spot the worn shock absorbers which the other garage did, and the council could argue that i can't prove the causality of that. That said on the whole i think with the whole balance of probabilities business with video evidence of the impact i'm struggling to see how they could argue that. I'll continue chasing him.
I'd be reluctant to class it as an expert statement or anything like that because that then complicates the claim and i've already said i do not intend to call upon expert witnesses.
(edited 7 months ago)
Original post by civicpride2506
Yes, I had submitted a LBA, and they had responded within 2 days repeating denial. Before that i had sent them correspondence rejecting their rejection of my claim, and another email showing them new evidence.
I'm not sure if issuing a counter claim against the garage is anyone's interest. The "garage" has now closed down so its just an individual i am speaking to. I have the invoice and i also havce a screenshot of the text conversation (i know itr's not great) showing him say the car bottomed out causing the suspension links to go. I think the issue is is that he didn't spot the worn shock absorbers which the other garage did, and the council could argue that i can't prove the causality of that. That said on the whole i think with the whole balance of probabilities business with video evidence of the impact i'm struggling to see how they could argue that. I'll continue chasing him.
I'd be reluctant to class it as an expert statement or anything like that because that then complicates the claim and i've already said i do not intend to call upon expert witnesses.
I'm not sure if issuing a counter claim against the garage is anyone's interest. The "garage" has now closed down so its just an individual i am speaking to. I have the invoice and i also havce a screenshot of the text conversation (i know itr's not great) showing him say the car bottomed out causing the suspension links to go. I think the issue is is that he didn't spot the worn shock absorbers which the other garage did, and the council could argue that i can't prove the causality of that. That said on the whole i think with the whole balance of probabilities business with video evidence of the impact i'm struggling to see how they could argue that. I'll continue chasing him.
I'd be reluctant to class it as an expert statement or anything like that because that then complicates the claim and i've already said i do not intend to call upon expert witnesses.
Sounds like you don’t need to worry too much about it. With the strength of the case, and now having almost all the evidence, this makes the claim infallible.
Wait to see what the court says and take each step at a time. Pursuing claim can be stressful.
Let me know how you get on, I hope I’ve helped.
(edited 7 months ago)
Original post by CompSciJP
Sounds like you don’t need to worry too much about it. With the strength of the case, and now having almost all the evidence, this makes the claim infallible.
Wait to see what the court says and take each step at a time. Pursuing claim can be stressful.
Let me know how you get on, I hope I’ve helped.
Wait to see what the court says and take each step at a time. Pursuing claim can be stressful.
Let me know how you get on, I hope I’ve helped.
Thanks, yes I called up the court - something pretty mundane, essentially the council wanted to change their application to add the address of their solicitors into it.
I also spoke to a friend of the family who is a solicitor (though not in litigation) and he reminded me in civil claims there is the "balance of probabilities" as opposed to "beyond reasonable doubt", so essentially all i need to do is convince the judge that it was 51% likely that the hole caused the damage, which i can do.
I was always prepared to lose a relatively small amount of money, a few hundred pounds in a worst case scenario if i lost the case for some reason, but £1k+ seems excessive for the worth of the claim - apparently you can argue that any fee if the case was thrown out etc is excessive to the value of the claim.
Now all i need to do is try and chase this garage - would be really good if it would come through. Have been tempted to go back to the other garage, as the garage i'm currently chasing said something similar until they saw the video (i forgot to show the garage the other video). In hindsight i probably should have done it at the time but the council made no issue with my claims and the invoices when i went to claim.
With their solicitors claiming there is no causality etc, in the last email from the council where they responded to the LBA, they actually said
"Although we note your comments, we can confirm that the defect in question was not considered to be dangerous at the time of your incident. We can also confirm that although damage has occurred to your vehicle, it does not automatically make the defect dangerous. Damage caused by a pot hole does not automatically give rise to a successful claim for compensation. Accidents such as this do happen but it does not automatically mean that liability rests with Essex County Council. As we have previously explained, it must be proved that Essex County Council has failed in its duty under Section 41 of the Highways Act in order for a claim to be successful.
In addition, please do note that even in the event that the defect could have been categorised as being dangerous, Essex
Whilst we are sympathetic to your situation, we must advise that Essex County Council has a duty to protect the public purse and as such cannot offer compensation when there is a legal defence to such claims. It is for this reason that we must confirm that liability in this matter remains denied. Should you wish to pursue your claim further, then the correct course of action is to seek resolution through the small claims court. We suggest that you may wish to seek independent legal advice before taking such action."
So it seems like they are not denying I had an accident, not denying I suffered the damage, and in essence seem to admit that the pothole could have caused the damage in question - just the odd supposition that a pothole capable of causing damage to a car is not "dangerous" etc. In other correspondence, they have suggested only a court could in fact, decide if a pothole is "dangerous".
(edited 7 months ago)
Original post by CompSciJP
I'm going to preface this as stating this is not legal advice and I would suggest your consulting of a litigation solicitor, please ensure you read the disclaimer at the footing of my response.
Okay, let's go through the particulars of claim:
1. The specific damage to your vehicle includes (Damaged tires, wheel damage, rim damage etc).
2. You assert that the damage occurred because the Council did not adequately maintain the road.
3. As a result of this damage, you incurred repair costs totaling £(However much you have to pay towards repairs)
4. (I am hoping) You have evidence to support your claim, including photographs of the pothole, the damaged area of your vehicle, and any repair receipts.
5. You are seeking compensation for the repair costs and any court fees associated with this claim.
So, what legal ground do we have on this:
Highways Act 1980: This is a key piece of legislation that outlines the responsibilities of local councils for the maintenance of public highways, including roads. Section 41 of the "Act" places a duty on the council to maintain the highway and repair any dangerous defects.
Common Law of Negligence: Claims against local councils often rely on common law principles of negligence. To succeed in such claims, you need to demonstrate that the council owed a duty of care to road users, breached that duty by failing to maintain the road adequately, and that this breach directly caused the damage to your vehicle.
What I am praying you have done already, before bringing the claim:
Gathered evidence:
- Taken clear photographs of the pothole, including its size, depth, and location on the road.
- Documented the damage to your vehicle, both externally and internally, with photographs.
- Collected any repair invoices, receipts, or quotes related to the vehicle repairs.
- Obtain witness statements from anyone who saw the incident or can attest to the pothole's condition.
Read and followed the "Rules and Practice Directions" more importantly "Pre-action Conduct and Protocols":
-Provided a letter before action, including all gathered evidence.
-You have suitably tried to settle the claim outside of court proceedings, such as sending a "Without Prejudice" letter, ADR, etc
Maintained Records:
- Kept a detailed record of all correspondence and communication with the local council regarding the pothole and your claim.
- Maintained a timeline of events, including when the incident occurred, when you reported it, and any responses or actions taken by the council.
So, having done all this right, what do we mean by "no evidence of causality"?
Causality Requirement: To successfully make a claim against the council for pothole damage, you typically need to demonstrate that the pothole directly caused the damage to your vehicle. In legal terms, this is known as establishing a causal connection between the pothole and the harm.
Challenging the Link: The council may argue that there is no concrete evidence to support the claim that the pothole was the direct cause of the vehicle's damage. They may assert that other factors could have contributed to or caused the damage, and without clear proof of causality, they may contest liability.
What can we do to contest this argument?
Evidence Considerations: To counter the "no evidence of causality" argument, it's crucial to provide compelling evidence that demonstrates a clear and direct link between the pothole and the damage. This evidence may include photographs, witness statements, repair invoices, and any other documentation that can establish the sequence of events and the role of the pothole in causing the damage.
Expert Assessment: In some cases, expert opinions or assessments may be necessary to establish causality. For example, a vehicle mechanic or engineer might provide an expert opinion that attributes the damage to the impact with the pothole.
What is meant by "Striking the case under CPR 3.4"?
When the opposing party states that they would invite the court to strike out the case under CPR 3.4, it means they are suggesting that the court should dismiss your case entirely based on certain legal grounds outlined in the Civil Procedure Rules (CPR) Part 3.4. This is a procedural step taken by the defendant to seek the court's intervention in ending the legal proceedings prematurely. The key provision that is often cited in such situations is CPR 3.4(2)(a), which allows for a claim or part of a claim to be struck out if it discloses no reasonable grounds for bringing or defending the claim.
In essence, the council think you don't have enough evidence to "blame" (bring the claim against) them.
What do we do if they succeed with a CPR 3.4 appeal?
If your claim is at risk of being struck out, you would generally need to oppose the striking-out application by addressing the specific grounds on which it is based. This involves presenting your case to the court and arguing against the striking-out application, demonstrating that your claim has merit and should not be dismissed.
What happens if we don't succeed with the appeal?
If the council succeed with their CPR 3.4 appeal, the court may consider costs, and instruct you to pay for the costs incurred on them for bringing the claim against them (legal fees). From here, the case is struck off and the claimant (you) will have your legal proceedings against the council come to an end.
If you are made to pay costs, and cannot agree on the amount, you can request a "Costs Assessment" from the court. This involves a detailed review of the costs claimed by the winning party, and the court will determine a reasonable amount to be paid by the losing party.
In terms of an estimation - it's hard to say.
If you disagree with the premature ending of your claim, you can appeal the decision with a higher court.
To address one last point you made:
What is meant by the council have now "made an application to change the case"?
Amendment of the Defense: The council may want to make amendments or clarifications to their original defense statement. This could involve revising their arguments, providing additional evidence, or addressing specific legal issues raised by the claimant.
Change in Legal Strategy: The council might have identified a need to alter their legal strategy or approach in response to developments in the case or new information that has come to light.
Procedural Matters: It could relate to procedural aspects of the case, such as requesting an extension of deadlines, proposing alternative dispute resolution (ADR) methods, or suggesting case management directions.
Settlement Discussions: The application may be related to discussions about settling the case outside of court, and the council may be proposing a change in the negotiation process.
Challenging the Claim: It's also possible that the council is making a formal request to challenge certain elements of the claimant's case, seeking to narrow down or clarify the issues in dispute.
What can we do right now?
Reaffirm our claim with a email and letter
Before sending a Without Prejudice, we may want to reaffirm the basis of the claim, ensuring that the defendant understands that we bring a strong case before the courts. An example letter for this might look like:
Re: IN THE COUNTY COURT MONEY CLAIMS CENTRE Claim Reference: [Claim Reference]
Dear Sir,
(YOUR NAME) vs (Council Name)
Claim Reference: [Claim Reference]
I write to further my communication dated, (when you last sent communication to them). I write to you today to present a firm and unwavering stance regarding the matter at hand, referenced above. While I am open to constructive dialogue, it is imperative that we both acknowledge the robust legal foundation that underscores my claim. Subsequent to this correspondence, you shall receive my email marked "Without Prejudice Save as to Costs."
It is of paramount importance that we fully understand the legal landscape upon which my claim is anchored:
The Highways Act 1980 imposes a clear-cut statutory obligation upon local authorities, including your distinguished council, to uphold the maintenance and safety of public roadways.On this basis, you are reasonably aware that the negligence of you, the defendant, is responsible for this issue.
The compelling evidence at hand, comprising meticulously captured photographic evidence of the deplorable pothole's dimensions and location, extensive documentation of my vehicle's substantial damages, comprehensive repair invoices, and persuasive witness statements, undeniably substantiates the council's dereliction of its statutory duties.
The doctrine of causality, firmly entrenched in our legal jurisprudence, serves as an unassailable link connecting the lamentable state of the pothole with the extensive harm inflicted upon my vehicle.
I wish to emphasise that my assertion of the council's liability is unwavering and firmly rooted in these legal principles. In the absence of an amicable resolution to this matter I, the claimant, will vigorously pursue the claim.
Should you require additional information or seek clarification on any aspect, please do not hesitate to contact me. For the avoidance of doubt, all official correspondence related to this matter must be directed to the following:
Email: [Your Email Address] Postal Address: [Your Home Address]
Any and all communications, notifications, or submissions, whether written or electronic, should be expressly transmitted to the aforementioned contact points for the duration of these proceedings. This stipulation serves as a formal notice in accordance with established legal practices and ensures clarity in our interactions. Save for the service of documentation in the proceedings (e.g. directions questionnaires, witness statements, skeleton arguments).
Kindly adhere to these directives to maintain the requisite transparency and efficiency throughout the course of this matter. Your swift attention to this matter is appreciated.
Yours Sincerely,
[Your name]
Send a Without Prejudice (Save as to Costs) Letter
By using the Without Prejudice (Save as to Costs), we can use the communication between us and the council when it comes to the consideration of costs, but the communication can't be used against us during the claim. If you don't know what a Without Prejudice letter is, we are basically showing a genuine attempt to settle the case outside of court, with the safety of knowing that the communication cannot be used against us in court.
An example of a Without Prejudice (Save as to Costs) letter for this situation would look a little like:
Re: WITHOUT PREJUDICE SAVE AS TO COSTS (Your Name) vs. (Council Name)
Claim Reference: [Claim Reference]
Dear [Recipient's Name],
I write to you under the "Without Prejudice Save as to Costs" principle concerning our ongoing matter as referenced above.
I remain committed to finding an equitable resolution to this issue, without resorting to costly legal proceedings. I am open to exploring alternative dispute resolution methods, such as mediation or negotiation, with the goal of reaching a mutually agreeable settlement.
It's crucial to note that my assertion of the council's liability is unwavering and firmly based on established legal principles, as previously explained. This communication does not imply any admission of liability on my part or a waiver of my right to recover costs if legal action becomes necessary.
I await your prompt response, indicating your willingness to engage in substantive discussions to resolve this matter. If you require additional information or clarification, please do not hesitate to contact me using the details provided in my previous correspondence. Pursuant to an amicable conclusion to this matter, I request payment of £XX.XX, which must be paid to (Bank Details), following payment before the commencement of proceedings I will instruct the respective county court to stay this matter.
I hope that common sense will prevail, and appreciate your attention, in this matter.
Yours sincerely,
[Your name]
You may want to request that the defendant provides a schedule for payment, and have the terms agreed in a court document, they can apply for a tomlin order.
You can say
"In light of our ongoing negotiations and any potential refinements to our settlement terms, I kindly request your timely response with a signed Tomlin Order. In the event that the terms we have agreed upon are accurately reflected in the schedule, a counter-signed version will be provided to both you and the county court with instruction to stay the proceedings."
Once you received a signed copy, you will have to sign it, and send it to the defendant, before sending to the courts instructing them to stay proceedings.
Disclaimer:
I am not a licensed attorney, lawyer, barrister or legal professional and the information provided in my responses, messages, or any communication should not be construed as legal advice. My response is based on general knowledge and information readily available on the internet and is based on previous experiences in the legal system. Legal matters are inherently complex and contingent upon specific circumstances. It is strongly recommended that you seek the counsel of a duly licensed legal professional for advice tailored to your particular situation. Any actions or decisions taken based on the information I provide are done so at your own risk and discretion.
Okay, let's go through the particulars of claim:
1. The specific damage to your vehicle includes (Damaged tires, wheel damage, rim damage etc).
2. You assert that the damage occurred because the Council did not adequately maintain the road.
3. As a result of this damage, you incurred repair costs totaling £(However much you have to pay towards repairs)
4. (I am hoping) You have evidence to support your claim, including photographs of the pothole, the damaged area of your vehicle, and any repair receipts.
5. You are seeking compensation for the repair costs and any court fees associated with this claim.
So, what legal ground do we have on this:
Highways Act 1980: This is a key piece of legislation that outlines the responsibilities of local councils for the maintenance of public highways, including roads. Section 41 of the "Act" places a duty on the council to maintain the highway and repair any dangerous defects.
Common Law of Negligence: Claims against local councils often rely on common law principles of negligence. To succeed in such claims, you need to demonstrate that the council owed a duty of care to road users, breached that duty by failing to maintain the road adequately, and that this breach directly caused the damage to your vehicle.
What I am praying you have done already, before bringing the claim:
Gathered evidence:
- Taken clear photographs of the pothole, including its size, depth, and location on the road.
- Documented the damage to your vehicle, both externally and internally, with photographs.
- Collected any repair invoices, receipts, or quotes related to the vehicle repairs.
- Obtain witness statements from anyone who saw the incident or can attest to the pothole's condition.
Read and followed the "Rules and Practice Directions" more importantly "Pre-action Conduct and Protocols":
-Provided a letter before action, including all gathered evidence.
-You have suitably tried to settle the claim outside of court proceedings, such as sending a "Without Prejudice" letter, ADR, etc
Maintained Records:
- Kept a detailed record of all correspondence and communication with the local council regarding the pothole and your claim.
- Maintained a timeline of events, including when the incident occurred, when you reported it, and any responses or actions taken by the council.
So, having done all this right, what do we mean by "no evidence of causality"?
Causality Requirement: To successfully make a claim against the council for pothole damage, you typically need to demonstrate that the pothole directly caused the damage to your vehicle. In legal terms, this is known as establishing a causal connection between the pothole and the harm.
Challenging the Link: The council may argue that there is no concrete evidence to support the claim that the pothole was the direct cause of the vehicle's damage. They may assert that other factors could have contributed to or caused the damage, and without clear proof of causality, they may contest liability.
What can we do to contest this argument?
Evidence Considerations: To counter the "no evidence of causality" argument, it's crucial to provide compelling evidence that demonstrates a clear and direct link between the pothole and the damage. This evidence may include photographs, witness statements, repair invoices, and any other documentation that can establish the sequence of events and the role of the pothole in causing the damage.
Expert Assessment: In some cases, expert opinions or assessments may be necessary to establish causality. For example, a vehicle mechanic or engineer might provide an expert opinion that attributes the damage to the impact with the pothole.
What is meant by "Striking the case under CPR 3.4"?
When the opposing party states that they would invite the court to strike out the case under CPR 3.4, it means they are suggesting that the court should dismiss your case entirely based on certain legal grounds outlined in the Civil Procedure Rules (CPR) Part 3.4. This is a procedural step taken by the defendant to seek the court's intervention in ending the legal proceedings prematurely. The key provision that is often cited in such situations is CPR 3.4(2)(a), which allows for a claim or part of a claim to be struck out if it discloses no reasonable grounds for bringing or defending the claim.
In essence, the council think you don't have enough evidence to "blame" (bring the claim against) them.
What do we do if they succeed with a CPR 3.4 appeal?
If your claim is at risk of being struck out, you would generally need to oppose the striking-out application by addressing the specific grounds on which it is based. This involves presenting your case to the court and arguing against the striking-out application, demonstrating that your claim has merit and should not be dismissed.
What happens if we don't succeed with the appeal?
If the council succeed with their CPR 3.4 appeal, the court may consider costs, and instruct you to pay for the costs incurred on them for bringing the claim against them (legal fees). From here, the case is struck off and the claimant (you) will have your legal proceedings against the council come to an end.
If you are made to pay costs, and cannot agree on the amount, you can request a "Costs Assessment" from the court. This involves a detailed review of the costs claimed by the winning party, and the court will determine a reasonable amount to be paid by the losing party.
In terms of an estimation - it's hard to say.
If you disagree with the premature ending of your claim, you can appeal the decision with a higher court.
To address one last point you made:
What is meant by the council have now "made an application to change the case"?
Amendment of the Defense: The council may want to make amendments or clarifications to their original defense statement. This could involve revising their arguments, providing additional evidence, or addressing specific legal issues raised by the claimant.
Change in Legal Strategy: The council might have identified a need to alter their legal strategy or approach in response to developments in the case or new information that has come to light.
Procedural Matters: It could relate to procedural aspects of the case, such as requesting an extension of deadlines, proposing alternative dispute resolution (ADR) methods, or suggesting case management directions.
Settlement Discussions: The application may be related to discussions about settling the case outside of court, and the council may be proposing a change in the negotiation process.
Challenging the Claim: It's also possible that the council is making a formal request to challenge certain elements of the claimant's case, seeking to narrow down or clarify the issues in dispute.
What can we do right now?
Reaffirm our claim with a email and letter
Before sending a Without Prejudice, we may want to reaffirm the basis of the claim, ensuring that the defendant understands that we bring a strong case before the courts. An example letter for this might look like:
Re: IN THE COUNTY COURT MONEY CLAIMS CENTRE Claim Reference: [Claim Reference]
Dear Sir,
(YOUR NAME) vs (Council Name)
Claim Reference: [Claim Reference]
I write to further my communication dated, (when you last sent communication to them). I write to you today to present a firm and unwavering stance regarding the matter at hand, referenced above. While I am open to constructive dialogue, it is imperative that we both acknowledge the robust legal foundation that underscores my claim. Subsequent to this correspondence, you shall receive my email marked "Without Prejudice Save as to Costs."
It is of paramount importance that we fully understand the legal landscape upon which my claim is anchored:
The Highways Act 1980 imposes a clear-cut statutory obligation upon local authorities, including your distinguished council, to uphold the maintenance and safety of public roadways.On this basis, you are reasonably aware that the negligence of you, the defendant, is responsible for this issue.
The compelling evidence at hand, comprising meticulously captured photographic evidence of the deplorable pothole's dimensions and location, extensive documentation of my vehicle's substantial damages, comprehensive repair invoices, and persuasive witness statements, undeniably substantiates the council's dereliction of its statutory duties.
The doctrine of causality, firmly entrenched in our legal jurisprudence, serves as an unassailable link connecting the lamentable state of the pothole with the extensive harm inflicted upon my vehicle.
I wish to emphasise that my assertion of the council's liability is unwavering and firmly rooted in these legal principles. In the absence of an amicable resolution to this matter I, the claimant, will vigorously pursue the claim.
Should you require additional information or seek clarification on any aspect, please do not hesitate to contact me. For the avoidance of doubt, all official correspondence related to this matter must be directed to the following:
Email: [Your Email Address] Postal Address: [Your Home Address]
Any and all communications, notifications, or submissions, whether written or electronic, should be expressly transmitted to the aforementioned contact points for the duration of these proceedings. This stipulation serves as a formal notice in accordance with established legal practices and ensures clarity in our interactions. Save for the service of documentation in the proceedings (e.g. directions questionnaires, witness statements, skeleton arguments).
Kindly adhere to these directives to maintain the requisite transparency and efficiency throughout the course of this matter. Your swift attention to this matter is appreciated.
Yours Sincerely,
[Your name]
Send a Without Prejudice (Save as to Costs) Letter
By using the Without Prejudice (Save as to Costs), we can use the communication between us and the council when it comes to the consideration of costs, but the communication can't be used against us during the claim. If you don't know what a Without Prejudice letter is, we are basically showing a genuine attempt to settle the case outside of court, with the safety of knowing that the communication cannot be used against us in court.
An example of a Without Prejudice (Save as to Costs) letter for this situation would look a little like:
Re: WITHOUT PREJUDICE SAVE AS TO COSTS (Your Name) vs. (Council Name)
Claim Reference: [Claim Reference]
Dear [Recipient's Name],
I write to you under the "Without Prejudice Save as to Costs" principle concerning our ongoing matter as referenced above.
I remain committed to finding an equitable resolution to this issue, without resorting to costly legal proceedings. I am open to exploring alternative dispute resolution methods, such as mediation or negotiation, with the goal of reaching a mutually agreeable settlement.
It's crucial to note that my assertion of the council's liability is unwavering and firmly based on established legal principles, as previously explained. This communication does not imply any admission of liability on my part or a waiver of my right to recover costs if legal action becomes necessary.
I await your prompt response, indicating your willingness to engage in substantive discussions to resolve this matter. If you require additional information or clarification, please do not hesitate to contact me using the details provided in my previous correspondence. Pursuant to an amicable conclusion to this matter, I request payment of £XX.XX, which must be paid to (Bank Details), following payment before the commencement of proceedings I will instruct the respective county court to stay this matter.
I hope that common sense will prevail, and appreciate your attention, in this matter.
Yours sincerely,
[Your name]
You may want to request that the defendant provides a schedule for payment, and have the terms agreed in a court document, they can apply for a tomlin order.
You can say
"In light of our ongoing negotiations and any potential refinements to our settlement terms, I kindly request your timely response with a signed Tomlin Order. In the event that the terms we have agreed upon are accurately reflected in the schedule, a counter-signed version will be provided to both you and the county court with instruction to stay the proceedings."
Once you received a signed copy, you will have to sign it, and send it to the defendant, before sending to the courts instructing them to stay proceedings.
Disclaimer:
I am not a licensed attorney, lawyer, barrister or legal professional and the information provided in my responses, messages, or any communication should not be construed as legal advice. My response is based on general knowledge and information readily available on the internet and is based on previous experiences in the legal system. Legal matters are inherently complex and contingent upon specific circumstances. It is strongly recommended that you seek the counsel of a duly licensed legal professional for advice tailored to your particular situation. Any actions or decisions taken based on the information I provide are done so at your own risk and discretion.
Simply put this excellent stuff
Original post by CompSciJP
I'm going to preface this as stating this is not legal advice and I would suggest your consulting of a litigation solicitor, please ensure you read the disclaimer at the footing of my response.
Okay, let's go through the particulars of claim:
1. The specific damage to your vehicle includes (Damaged tires, wheel damage, rim damage etc).
2. You assert that the damage occurred because the Council did not adequately maintain the road.
3. As a result of this damage, you incurred repair costs totaling £(However much you have to pay towards repairs)
4. (I am hoping) You have evidence to support your claim, including photographs of the pothole, the damaged area of your vehicle, and any repair receipts.
5. You are seeking compensation for the repair costs and any court fees associated with this claim.
So, what legal ground do we have on this:
Highways Act 1980: This is a key piece of legislation that outlines the responsibilities of local councils for the maintenance of public highways, including roads. Section 41 of the "Act" places a duty on the council to maintain the highway and repair any dangerous defects.
Common Law of Negligence: Claims against local councils often rely on common law principles of negligence. To succeed in such claims, you need to demonstrate that the council owed a duty of care to road users, breached that duty by failing to maintain the road adequately, and that this breach directly caused the damage to your vehicle.
What I am praying you have done already, before bringing the claim:
Gathered evidence:
- Taken clear photographs of the pothole, including its size, depth, and location on the road.
- Documented the damage to your vehicle, both externally and internally, with photographs.
- Collected any repair invoices, receipts, or quotes related to the vehicle repairs.
- Obtain witness statements from anyone who saw the incident or can attest to the pothole's condition.
Read and followed the "Rules and Practice Directions" more importantly "Pre-action Conduct and Protocols":
-Provided a letter before action, including all gathered evidence.
-You have suitably tried to settle the claim outside of court proceedings, such as sending a "Without Prejudice" letter, ADR, etc
Maintained Records:
- Kept a detailed record of all correspondence and communication with the local council regarding the pothole and your claim.
- Maintained a timeline of events, including when the incident occurred, when you reported it, and any responses or actions taken by the council.
So, having done all this right, what do we mean by "no evidence of causality"?
Causality Requirement: To successfully make a claim against the council for pothole damage, you typically need to demonstrate that the pothole directly caused the damage to your vehicle. In legal terms, this is known as establishing a causal connection between the pothole and the harm.
Challenging the Link: The council may argue that there is no concrete evidence to support the claim that the pothole was the direct cause of the vehicle's damage. They may assert that other factors could have contributed to or caused the damage, and without clear proof of causality, they may contest liability.
What can we do to contest this argument?
Evidence Considerations: To counter the "no evidence of causality" argument, it's crucial to provide compelling evidence that demonstrates a clear and direct link between the pothole and the damage. This evidence may include photographs, witness statements, repair invoices, and any other documentation that can establish the sequence of events and the role of the pothole in causing the damage.
Expert Assessment: In some cases, expert opinions or assessments may be necessary to establish causality. For example, a vehicle mechanic or engineer might provide an expert opinion that attributes the damage to the impact with the pothole.
What is meant by "Striking the case under CPR 3.4"?
When the opposing party states that they would invite the court to strike out the case under CPR 3.4, it means they are suggesting that the court should dismiss your case entirely based on certain legal grounds outlined in the Civil Procedure Rules (CPR) Part 3.4. This is a procedural step taken by the defendant to seek the court's intervention in ending the legal proceedings prematurely. The key provision that is often cited in such situations is CPR 3.4(2)(a), which allows for a claim or part of a claim to be struck out if it discloses no reasonable grounds for bringing or defending the claim.
In essence, the council think you don't have enough evidence to "blame" (bring the claim against) them.
What do we do if they succeed with a CPR 3.4 appeal?
If your claim is at risk of being struck out, you would generally need to oppose the striking-out application by addressing the specific grounds on which it is based. This involves presenting your case to the court and arguing against the striking-out application, demonstrating that your claim has merit and should not be dismissed.
What happens if we don't succeed with the appeal?
If the council succeed with their CPR 3.4 appeal, the court may consider costs, and instruct you to pay for the costs incurred on them for bringing the claim against them (legal fees). From here, the case is struck off and the claimant (you) will have your legal proceedings against the council come to an end.
If you are made to pay costs, and cannot agree on the amount, you can request a "Costs Assessment" from the court. This involves a detailed review of the costs claimed by the winning party, and the court will determine a reasonable amount to be paid by the losing party.
In terms of an estimation - it's hard to say.
If you disagree with the premature ending of your claim, you can appeal the decision with a higher court.
To address one last point you made:
What is meant by the council have now "made an application to change the case"?
Amendment of the Defense: The council may want to make amendments or clarifications to their original defense statement. This could involve revising their arguments, providing additional evidence, or addressing specific legal issues raised by the claimant.
Change in Legal Strategy: The council might have identified a need to alter their legal strategy or approach in response to developments in the case or new information that has come to light.
Procedural Matters: It could relate to procedural aspects of the case, such as requesting an extension of deadlines, proposing alternative dispute resolution (ADR) methods, or suggesting case management directions.
Settlement Discussions: The application may be related to discussions about settling the case outside of court, and the council may be proposing a change in the negotiation process.
Challenging the Claim: It's also possible that the council is making a formal request to challenge certain elements of the claimant's case, seeking to narrow down or clarify the issues in dispute.
What can we do right now?
Reaffirm our claim with a email and letter
Before sending a Without Prejudice, we may want to reaffirm the basis of the claim, ensuring that the defendant understands that we bring a strong case before the courts. An example letter for this might look like:
Re: IN THE COUNTY COURT MONEY CLAIMS CENTRE Claim Reference: [Claim Reference]
Dear Sir,
(YOUR NAME) vs (Council Name)
Claim Reference: [Claim Reference]
I write to further my communication dated, (when you last sent communication to them). I write to you today to present a firm and unwavering stance regarding the matter at hand, referenced above. While I am open to constructive dialogue, it is imperative that we both acknowledge the robust legal foundation that underscores my claim. Subsequent to this correspondence, you shall receive my email marked "Without Prejudice Save as to Costs."
It is of paramount importance that we fully understand the legal landscape upon which my claim is anchored:
The Highways Act 1980 imposes a clear-cut statutory obligation upon local authorities, including your distinguished council, to uphold the maintenance and safety of public roadways.On this basis, you are reasonably aware that the negligence of you, the defendant, is responsible for this issue.
The compelling evidence at hand, comprising meticulously captured photographic evidence of the deplorable pothole's dimensions and location, extensive documentation of my vehicle's substantial damages, comprehensive repair invoices, and persuasive witness statements, undeniably substantiates the council's dereliction of its statutory duties.
The doctrine of causality, firmly entrenched in our legal jurisprudence, serves as an unassailable link connecting the lamentable state of the pothole with the extensive harm inflicted upon my vehicle.
I wish to emphasise that my assertion of the council's liability is unwavering and firmly rooted in these legal principles. In the absence of an amicable resolution to this matter I, the claimant, will vigorously pursue the claim.
Should you require additional information or seek clarification on any aspect, please do not hesitate to contact me. For the avoidance of doubt, all official correspondence related to this matter must be directed to the following:
Email: [Your Email Address] Postal Address: [Your Home Address]
Any and all communications, notifications, or submissions, whether written or electronic, should be expressly transmitted to the aforementioned contact points for the duration of these proceedings. This stipulation serves as a formal notice in accordance with established legal practices and ensures clarity in our interactions. Save for the service of documentation in the proceedings (e.g. directions questionnaires, witness statements, skeleton arguments).
Kindly adhere to these directives to maintain the requisite transparency and efficiency throughout the course of this matter. Your swift attention to this matter is appreciated.
Yours Sincerely,
[Your name]
Send a Without Prejudice (Save as to Costs) Letter
By using the Without Prejudice (Save as to Costs), we can use the communication between us and the council when it comes to the consideration of costs, but the communication can't be used against us during the claim. If you don't know what a Without Prejudice letter is, we are basically showing a genuine attempt to settle the case outside of court, with the safety of knowing that the communication cannot be used against us in court.
An example of a Without Prejudice (Save as to Costs) letter for this situation would look a little like:
Re: WITHOUT PREJUDICE SAVE AS TO COSTS (Your Name) vs. (Council Name)
Claim Reference: [Claim Reference]
Dear [Recipient's Name],
I write to you under the "Without Prejudice Save as to Costs" principle concerning our ongoing matter as referenced above.
I remain committed to finding an equitable resolution to this issue, without resorting to costly legal proceedings. I am open to exploring alternative dispute resolution methods, such as mediation or negotiation, with the goal of reaching a mutually agreeable settlement.
It's crucial to note that my assertion of the council's liability is unwavering and firmly based on established legal principles, as previously explained. This communication does not imply any admission of liability on my part or a waiver of my right to recover costs if legal action becomes necessary.
I await your prompt response, indicating your willingness to engage in substantive discussions to resolve this matter. If you require additional information or clarification, please do not hesitate to contact me using the details provided in my previous correspondence. Pursuant to an amicable conclusion to this matter, I request payment of £XX.XX, which must be paid to (Bank Details), following payment before the commencement of proceedings I will instruct the respective county court to stay this matter.
I hope that common sense will prevail, and appreciate your attention, in this matter.
Yours sincerely,
[Your name]
You may want to request that the defendant provides a schedule for payment, and have the terms agreed in a court document, they can apply for a tomlin order.
You can say
"In light of our ongoing negotiations and any potential refinements to our settlement terms, I kindly request your timely response with a signed Tomlin Order. In the event that the terms we have agreed upon are accurately reflected in the schedule, a counter-signed version will be provided to both you and the county court with instruction to stay the proceedings."
Once you received a signed copy, you will have to sign it, and send it to the defendant, before sending to the courts instructing them to stay proceedings.
Disclaimer:
I am not a licensed attorney, lawyer, barrister or legal professional and the information provided in my responses, messages, or any communication should not be construed as legal advice. My response is based on general knowledge and information readily available on the internet and is based on previous experiences in the legal system. Legal matters are inherently complex and contingent upon specific circumstances. It is strongly recommended that you seek the counsel of a duly licensed legal professional for advice tailored to your particular situation. Any actions or decisions taken based on the information I provide are done so at your own risk and discretion.
Okay, let's go through the particulars of claim:
1. The specific damage to your vehicle includes (Damaged tires, wheel damage, rim damage etc).
2. You assert that the damage occurred because the Council did not adequately maintain the road.
3. As a result of this damage, you incurred repair costs totaling £(However much you have to pay towards repairs)
4. (I am hoping) You have evidence to support your claim, including photographs of the pothole, the damaged area of your vehicle, and any repair receipts.
5. You are seeking compensation for the repair costs and any court fees associated with this claim.
So, what legal ground do we have on this:
Highways Act 1980: This is a key piece of legislation that outlines the responsibilities of local councils for the maintenance of public highways, including roads. Section 41 of the "Act" places a duty on the council to maintain the highway and repair any dangerous defects.
Common Law of Negligence: Claims against local councils often rely on common law principles of negligence. To succeed in such claims, you need to demonstrate that the council owed a duty of care to road users, breached that duty by failing to maintain the road adequately, and that this breach directly caused the damage to your vehicle.
What I am praying you have done already, before bringing the claim:
Gathered evidence:
- Taken clear photographs of the pothole, including its size, depth, and location on the road.
- Documented the damage to your vehicle, both externally and internally, with photographs.
- Collected any repair invoices, receipts, or quotes related to the vehicle repairs.
- Obtain witness statements from anyone who saw the incident or can attest to the pothole's condition.
Read and followed the "Rules and Practice Directions" more importantly "Pre-action Conduct and Protocols":
-Provided a letter before action, including all gathered evidence.
-You have suitably tried to settle the claim outside of court proceedings, such as sending a "Without Prejudice" letter, ADR, etc
Maintained Records:
- Kept a detailed record of all correspondence and communication with the local council regarding the pothole and your claim.
- Maintained a timeline of events, including when the incident occurred, when you reported it, and any responses or actions taken by the council.
So, having done all this right, what do we mean by "no evidence of causality"?
Causality Requirement: To successfully make a claim against the council for pothole damage, you typically need to demonstrate that the pothole directly caused the damage to your vehicle. In legal terms, this is known as establishing a causal connection between the pothole and the harm.
Challenging the Link: The council may argue that there is no concrete evidence to support the claim that the pothole was the direct cause of the vehicle's damage. They may assert that other factors could have contributed to or caused the damage, and without clear proof of causality, they may contest liability.
What can we do to contest this argument?
Evidence Considerations: To counter the "no evidence of causality" argument, it's crucial to provide compelling evidence that demonstrates a clear and direct link between the pothole and the damage. This evidence may include photographs, witness statements, repair invoices, and any other documentation that can establish the sequence of events and the role of the pothole in causing the damage.
Expert Assessment: In some cases, expert opinions or assessments may be necessary to establish causality. For example, a vehicle mechanic or engineer might provide an expert opinion that attributes the damage to the impact with the pothole.
What is meant by "Striking the case under CPR 3.4"?
When the opposing party states that they would invite the court to strike out the case under CPR 3.4, it means they are suggesting that the court should dismiss your case entirely based on certain legal grounds outlined in the Civil Procedure Rules (CPR) Part 3.4. This is a procedural step taken by the defendant to seek the court's intervention in ending the legal proceedings prematurely. The key provision that is often cited in such situations is CPR 3.4(2)(a), which allows for a claim or part of a claim to be struck out if it discloses no reasonable grounds for bringing or defending the claim.
In essence, the council think you don't have enough evidence to "blame" (bring the claim against) them.
What do we do if they succeed with a CPR 3.4 appeal?
If your claim is at risk of being struck out, you would generally need to oppose the striking-out application by addressing the specific grounds on which it is based. This involves presenting your case to the court and arguing against the striking-out application, demonstrating that your claim has merit and should not be dismissed.
What happens if we don't succeed with the appeal?
If the council succeed with their CPR 3.4 appeal, the court may consider costs, and instruct you to pay for the costs incurred on them for bringing the claim against them (legal fees). From here, the case is struck off and the claimant (you) will have your legal proceedings against the council come to an end.
If you are made to pay costs, and cannot agree on the amount, you can request a "Costs Assessment" from the court. This involves a detailed review of the costs claimed by the winning party, and the court will determine a reasonable amount to be paid by the losing party.
In terms of an estimation - it's hard to say.
If you disagree with the premature ending of your claim, you can appeal the decision with a higher court.
To address one last point you made:
What is meant by the council have now "made an application to change the case"?
Amendment of the Defense: The council may want to make amendments or clarifications to their original defense statement. This could involve revising their arguments, providing additional evidence, or addressing specific legal issues raised by the claimant.
Change in Legal Strategy: The council might have identified a need to alter their legal strategy or approach in response to developments in the case or new information that has come to light.
Procedural Matters: It could relate to procedural aspects of the case, such as requesting an extension of deadlines, proposing alternative dispute resolution (ADR) methods, or suggesting case management directions.
Settlement Discussions: The application may be related to discussions about settling the case outside of court, and the council may be proposing a change in the negotiation process.
Challenging the Claim: It's also possible that the council is making a formal request to challenge certain elements of the claimant's case, seeking to narrow down or clarify the issues in dispute.
What can we do right now?
Reaffirm our claim with a email and letter
Before sending a Without Prejudice, we may want to reaffirm the basis of the claim, ensuring that the defendant understands that we bring a strong case before the courts. An example letter for this might look like:
Re: IN THE COUNTY COURT MONEY CLAIMS CENTRE Claim Reference: [Claim Reference]
Dear Sir,
(YOUR NAME) vs (Council Name)
Claim Reference: [Claim Reference]
I write to further my communication dated, (when you last sent communication to them). I write to you today to present a firm and unwavering stance regarding the matter at hand, referenced above. While I am open to constructive dialogue, it is imperative that we both acknowledge the robust legal foundation that underscores my claim. Subsequent to this correspondence, you shall receive my email marked "Without Prejudice Save as to Costs."
It is of paramount importance that we fully understand the legal landscape upon which my claim is anchored:
The Highways Act 1980 imposes a clear-cut statutory obligation upon local authorities, including your distinguished council, to uphold the maintenance and safety of public roadways.On this basis, you are reasonably aware that the negligence of you, the defendant, is responsible for this issue.
The compelling evidence at hand, comprising meticulously captured photographic evidence of the deplorable pothole's dimensions and location, extensive documentation of my vehicle's substantial damages, comprehensive repair invoices, and persuasive witness statements, undeniably substantiates the council's dereliction of its statutory duties.
The doctrine of causality, firmly entrenched in our legal jurisprudence, serves as an unassailable link connecting the lamentable state of the pothole with the extensive harm inflicted upon my vehicle.
I wish to emphasise that my assertion of the council's liability is unwavering and firmly rooted in these legal principles. In the absence of an amicable resolution to this matter I, the claimant, will vigorously pursue the claim.
Should you require additional information or seek clarification on any aspect, please do not hesitate to contact me. For the avoidance of doubt, all official correspondence related to this matter must be directed to the following:
Email: [Your Email Address] Postal Address: [Your Home Address]
Any and all communications, notifications, or submissions, whether written or electronic, should be expressly transmitted to the aforementioned contact points for the duration of these proceedings. This stipulation serves as a formal notice in accordance with established legal practices and ensures clarity in our interactions. Save for the service of documentation in the proceedings (e.g. directions questionnaires, witness statements, skeleton arguments).
Kindly adhere to these directives to maintain the requisite transparency and efficiency throughout the course of this matter. Your swift attention to this matter is appreciated.
Yours Sincerely,
[Your name]
Send a Without Prejudice (Save as to Costs) Letter
By using the Without Prejudice (Save as to Costs), we can use the communication between us and the council when it comes to the consideration of costs, but the communication can't be used against us during the claim. If you don't know what a Without Prejudice letter is, we are basically showing a genuine attempt to settle the case outside of court, with the safety of knowing that the communication cannot be used against us in court.
An example of a Without Prejudice (Save as to Costs) letter for this situation would look a little like:
Re: WITHOUT PREJUDICE SAVE AS TO COSTS (Your Name) vs. (Council Name)
Claim Reference: [Claim Reference]
Dear [Recipient's Name],
I write to you under the "Without Prejudice Save as to Costs" principle concerning our ongoing matter as referenced above.
I remain committed to finding an equitable resolution to this issue, without resorting to costly legal proceedings. I am open to exploring alternative dispute resolution methods, such as mediation or negotiation, with the goal of reaching a mutually agreeable settlement.
It's crucial to note that my assertion of the council's liability is unwavering and firmly based on established legal principles, as previously explained. This communication does not imply any admission of liability on my part or a waiver of my right to recover costs if legal action becomes necessary.
I await your prompt response, indicating your willingness to engage in substantive discussions to resolve this matter. If you require additional information or clarification, please do not hesitate to contact me using the details provided in my previous correspondence. Pursuant to an amicable conclusion to this matter, I request payment of £XX.XX, which must be paid to (Bank Details), following payment before the commencement of proceedings I will instruct the respective county court to stay this matter.
I hope that common sense will prevail, and appreciate your attention, in this matter.
Yours sincerely,
[Your name]
You may want to request that the defendant provides a schedule for payment, and have the terms agreed in a court document, they can apply for a tomlin order.
You can say
"In light of our ongoing negotiations and any potential refinements to our settlement terms, I kindly request your timely response with a signed Tomlin Order. In the event that the terms we have agreed upon are accurately reflected in the schedule, a counter-signed version will be provided to both you and the county court with instruction to stay the proceedings."
Once you received a signed copy, you will have to sign it, and send it to the defendant, before sending to the courts instructing them to stay proceedings.
Disclaimer:
I am not a licensed attorney, lawyer, barrister or legal professional and the information provided in my responses, messages, or any communication should not be construed as legal advice. My response is based on general knowledge and information readily available on the internet and is based on previous experiences in the legal system. Legal matters are inherently complex and contingent upon specific circumstances. It is strongly recommended that you seek the counsel of a duly licensed legal professional for advice tailored to your particular situation. Any actions or decisions taken based on the information I provide are done so at your own risk and discretion.
I thought the whole point of these small claims court was to keep down costs. How is it coming in at so much? don't you just pay the small fee only?
Original post by Kutie Karen
I thought the whole point of these small claims court was to keep down costs. How is it coming in at so much? don't you just pay the small fee only?
The amount you pay initally depends on how much you're claiming - for me that's a £50 fee, because its just under £400. The issue is that if the claim gets struck out before it gets allocated to the small claims track there could be costs.
Original post by civicpride2506
The amount you pay initally depends on how much you're claiming - for me that's a £50 fee, because its just under £400. The issue is that if the claim gets struck out before it gets allocated to the small claims track there could be costs.
oh really . like what?
Original post by Kutie Karen
oh really . like what?
The council could argue i owe them their legal fees which are capped at £19 an hour, i don't know how many hours it takes in all honesty for them to prepare a very basic defence to a £400 claim but i was given a figure on another forum by someone of £1-£2k, which is obviously a very large amount of money and totally pointless for the amount i'm claiming.
I stand to be corrected by someone else on here - if the council make an application to throw it out there'd be some kind of hearing and i'd get to point my side out and also could argue i am not liable for costs as it would be allocated to the small claims case had it got any further, and the proposed costs would be totally disproportionate to the value of the claim.
I spoke to the court this morning and they didn't tell me anything about an application to throw out the case but rather they've just amended their defence to include the address of their legal team. So i have to wait for them to fill out their n180 which i did for myself.
Original post by CompSciJP
Sounds like you don’t need to worry too much about it. With the strength of the case, and now having almost all the evidence, this makes the claim infallible.
Wait to see what the court says and take each step at a time. Pursuing claim can be stressful.
Let me know how you get on, I hope I’ve helped.
Wait to see what the court says and take each step at a time. Pursuing claim can be stressful.
Let me know how you get on, I hope I’ve helped.
Council's solicitors have just submitted their N180; thankfully they are in agreement it is suitable for the small claims track. They do not intend to call an expert witness, they say 2 witnesses including themselves with be present and they consider it eligible without a hearing; they do not consider mediation suitable.
Original post by civicpride2506
Council's solicitors have just submitted their N180; thankfully they are in agreement it is suitable for the small claims track. They do not intend to call an expert witness, they say 2 witnesses including themselves with be present and they consider it eligible without a hearing; they do not consider mediation suitable.
Let me know if you have any more questions. Hope all is well.
Original post by CompSciJP
Let me know if you have any more questions. Hope all is well.
Just a quick question, in a small claims court not for the above, who pays the cost and what kind of costs would each party by liable for ?
Update for you all - heard from the court today the judge has allocated it to the small claims track and i have a hearing of 90 minutes in june
Original post by civicpride2506
Update for you all - heard from the court today the judge has allocated it to the small claims track and i have a hearing of 90 minutes in june
That's good news. How long did you have to wait to get this slot?
Original post by Kutie Karen
Just a quick question, in a small claims court not for the above, who pays the cost and what kind of costs would each party by liable for ?
Does anyone know the answer to this?
Original post by Kutie Karen
That's good news. How long did you have to wait to get this slot?
I made the claim via HMCTS in late august/early sept so its been a few months.
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