private road - public liability

Guest101

davidmcn wrote: »

I suspect you just mean a defence to the claim. A counterclaim would be if the taxi driver owed G_M's friend £1000 for something.

Or...


I accept that the road has not been maintained, however I am claiming X as a result of the trespass.


As far as I'm aware trespass cannot be a defence.

Lord_Baltimore

davidmcn wrote: »

What's all this "counter-suing" business about? Have people been watching too many US court dramas?

With respect davidmcn, I don't think anyone is claiming to be the expert here; we're just chewing the fat. G_M is a grown up and knows there is a value to internet advice but he also knows that it is to be taken with a pinch of salt. It doesn't mean that the conversation is without validity in some respects though.

davidmcn

Guest101 wrote: »

I accept that the road has not been maintained, however I am claiming X as a result of the trespass.

They don't owe you X though, unless they've actually caused damage while they were there. Hence my question about what the loss is.

Guest101

Loss isn't limited to damage. I don't know the details of the case to say what the chain would be. I'm saying if he was trespassing it could be a counter claim.

G_M

Lord_Baltimore wrote: »

.... we're just chewing the fat. G_M is a grown up and knows there is a value to internet advice but he also knows that it is to be taken with a pinch of salt. It doesn't mean that the conversation is without validity in some respects though.

So true!

44 responses and almost as many opinions. Some are clearly conjecture; some purport to outline the legal position; some try to apply common sense; some report on similar experience.

All are interesting (hence I've tried to 'thank' all contributers indiscriminately)

As OP my job is to filter, research further & attempt to reach a conclusion. Just as on any thread here on the forum.

Just heard there are a couple of lawyers amongst the residents, so while I've passed on some thoughts from here to my friend, the matter has been tossed at them to consider.........

happy to feedback in due course if people find the topic of interest.

moneyistooshorttomention

Yep....would be interested for feedback personally.

I think I've got the position pretty worked out personally re unadopted roads - but always happy to be sure and certain that knowledge is accurate/up-to-date/etc etc on this.

EachPenny

G_M wrote: »

As hinted at previously, there are also issues with the way the Mgmt Co was initially set up, with a couple of residents refusing to contribute. That is a whole other story.

I'm interested in how the Management Company ended up owning the whole of the road as a single plot. Was it originally a single plot of land owned by the original developer (or someone else) or was it an amalgamation of plots of land previously owned by the frontagers?

Guest101 wrote: »

Driving without due care and attention is a criminal matter, a private prosecution would cost tens of thousands of pounds.

Even if it is a private road, I believe driving without due care and attention would be a police matter. I cannot see it ever being likely that someone would be subject to public prosecution because lack of care and attention had resulted in nothing more than damage to the drivers own car. In which case, how far would a private prosecution actually get before it got stopped as being a waste of everybody's time?

G_M wrote: »

44 responses and almost as many opinions...
...happy to feedback in due course if people find the topic of interest.

I think you are lucky not to have had more opinions offered than there were responses! Highway law is horribly complex, in part because of the way it has developed over the years. The fact the main Act for Highway Authorities to take into account was last comprehensively refreshed 37 years ago perhaps indicates a collective unwillingness to even attempt to comprehend it all. As for the common law...

I'd really be interested in the feedback too please.

Guest101

EachPenny wrote: »

I'm interested in how the Management Company ended up owning the whole of the road as a single plot. Was it originally a single plot of land owned by the original developer (or someone else) or was it an amalgamation of plots of land previously owned by the frontagers?



Even if it is a private road, I believe driving without due care and attention would be a police matter. - It would. But the poster I'm quoting wanted to take the driver to court themselves. I cannot see it ever being likely that someone would be subject to public prosecution because lack of care and attention had resulted in nothing more than damage to the drivers own car. In which case, how far would a private prosecution actually get before it got stopped as being a waste of everybody's time? - Well I don't know, I'm not a judge? But private prosecutions do not have to have a public interest test.



I think you are lucky not to have had more opinions offered than there were responses! Highway law is horribly complex, in part because of the way it has developed over the years. The fact the main Act for Highway Authorities to take into account was last comprehensively refreshed 37 years ago perhaps indicates a collective unwillingness to even attempt to comprehend it all. As for the common law...

I'd really be interested in the feedback too please.

Same, would be good to find out the result

EachPenny

Guest101 wrote: »

Well I don't know, I'm not a judge? But private prosecutions do not have to have a public interest test.

Criminal law isn't something I fully understand so this is an 'out of interest' question not a challenge to what you say - but isn't the public interest point in this situation about whether it would be a good use of court time and establish a trend for people to abuse private prosecution to counter/dissuade legitimate claims for damages?

The CPS has the ability to take over a private prosecution, and it can do so deliberately to stop it. I'd have thought that starting a private prosecution in the circumstances described could easily be considered 'vexatious' or 'malicious' and therefore trigger a CPS takeover in the interests of justice?

Edit: Otherwise we could be in a situation where people would consider a private prosecution as a result of a minor traffic accident, and use the threat to stop people making a legitimate insurance claim.

Guest101

EachPenny wrote: »

Criminal law isn't something I fully understand so this is an 'out of interest' question not a challenge to what you say - but isn't the public interest point in this situation about whether it would be a good use of court time - no the public interest test is carried out by the CPS - it is this: Would a conviction be in the public interest. So for example: would prosecuting a speeding driver be in the public interest if they were speeding to get someone to hospital. Yes they broke the law, but its not in the public interest to criminalise a good Samaritan. and establish a trend for people to abuse private prosecution to counter/dissuade legitimate claims for damages? - private prosecutions cost tens of thousands of pounds. It really isn't 'open' to abuse.

The CPS has the ability to take over a private prosecution, and it can do so deliberately to stop it. - yes they can, but there's rules surrounding that, and I believe costs need to be paid if they do so. I'd have thought that starting a private prosecution in the circumstances described could easily be considered 'vexatious' or 'malicious' and therefore trigger a CPS takeover in the interests of justice? - I'd say that's unlikely, the CPS I believe can only take over prosecutions that pass their own tests. IE likely to succeed and public interest. What you describe would be anti-justice - if someone breaks the law, they should be punished. Yes there are plenty of defences to present, but I doubt a court would rule vexatious or malicious, as those offences to have a general public interest.

Edit: Otherwise we could be in a situation where people would consider a private prosecution as a result of a minor traffic accident, and use the threat to stop people making a legitimate insurance claim.

You can do so, but not many people have £30,000 to spend prosecuting a minor claim, which even if successful would only lead to a minor punishment. (compared to the £30,000!)