Actions before small claims court with council

1990xrider

Hi 

A council rejected my claim against them for pothole damage.

Over the last few weeks I have accumulated enough evidence to prove the pothole was dangerous and the council failed under s41 of the highways act to repair. 

I am clearly right as the council have repaired the hole just yesterday which I find highly interesting. 

I've sent off a claim using the mse template. How long do the council have to respond to this? They took 2 months to respond to my first claim. In the rejection letter they said the next step was the smc. But I want to show the court I've done everything I can and present the council with such overwhelming evidence (including the fact they didn't follow their own criteria, were late in an annual inspection and didn't pick up on any damage, witnesses who will provide statements in court if need be to corroborate my claims by speaking of their own damage etc ,video footage., That they will be forced to capitulate and just pay out the money. But willing to go to court now more than ever. So how long should I give them to respond to my rejection of their rejection before I inform them I will be starting the small claims process? 

DullGreyGuy

They have as long as you stated in your letter, if the court finds you were unreasonable they may refuse to award costs or in worst cases award costs against you (the later being very rare but in their power) even if you win.

PS. you dont start "small claims process", you start a claims process, which track of the court the case is assigned to is decided in the Directions process. Some low value but complex cases end up in Fast Track where lawyers fees start becoming payable by the losing party.

1990xrider

DullGreyGuy said:

They have as long as you stated in your letter, if the court finds you were unreasonable they may refuse to award costs or in worst cases award costs against you (the later being very rare but in their power) even if you win.

PS. you dont start "small claims process", you start a claims process, which track of the court the case is assigned to is decided in the Directions process. Some low value but complex cases end up in Fast Track where lawyers fees start becoming payable by the losing party.

Oh oops I didn't state a timeframe as none were mentioned in the time frame. 
I thought any timeframe I arbitrarily set would not be legally binding particularly if it was short a court might not look favourably upon it. Do I email them back ? I've asked for them to confirm receipt of the email 

DullGreyGuy

1990xrider said:

DullGreyGuy said:

They have as long as you stated in your letter, if the court finds you were unreasonable they may refuse to award costs or in worst cases award costs against you (the later being very rare but in their power) even if you win.

PS. you dont start "small claims process", you start a claims process, which track of the court the case is assigned to is decided in the Directions process. Some low value but complex cases end up in Fast Track where lawyers fees start becoming payable by the losing party.

Oh oops I didn't state a timeframe as none were mentioned in the time frame. 
I thought any timeframe I arbitrarily set would not be legally binding particularly if it was short a court might not look favourably upon it. Do I email them back ? I've asked for them to confirm receipt of the email 

The court is supposed to be the place of last resort, when all reasonable attempts to come to an agreement have failed. As such the CPR requires a letter before action to be sent, it should really contain a deadline and that deadline must be reasonable. If the council website says it responds to enquiries within 10 working days and you send an email saying you give them 2 hours to respond else you will issue then its fairly likely that a court would deem you weren't reasonable and whilst the claim may be genuine it shouldn't have come to court when it did and so doesn't award the court costs to you. 

Having already sent one message I'd wait a reasonable period and then send a final LBA with a reasonable timescale highlighting your next steps will be to submit a claim to the courts and that you will seek costs from them. 

1990xrider

How long do you reckon? They have 20 days to respond to an FOI. Maybe 10 days and then a final email saying they have another ten days to respond and then I will commence court action?. 7 days until I send the final reminder giving them another week? They took 2 months to respond to the initial claim

I am aware this is going to be a lengthy process. 

DullGreyGuy

Personally prefer using business days, especially with a bankholiday approaching. 

Make sure you are clear its X days from what... the date you send the email? the date they receive your letter? The date they open it? Obviously the earlier the trigger the longer the time you need to give them. Personally prefer from date of sending as it's an indisputable timepoint. 

MattMattMattUK

1990xrider said:

I am clearly right as the council have repaired the hole just yesterday which I find highly interesting. 

Just to be clear, them repairing a pothole does not mean that they were required to repair it earlier, neither does it make them liable for damage that occurred before it was repaired. 

Also somewhat of a warning, hitting a pothole can be deemed an at fault accident for insurance purposes, if you go to court you will be required to inform your insurance company. 

Car_54

1990xrider said:

How long do you reckon? They have 20 days to respond to an FOI. Maybe 10 days and then a final email saying they have another ten days to respond and then I will commence court action?. 7 days until I send the final reminder giving them another week? They took 2 months to respond to the initial claim

I am aware this is going to be a lengthy process. 

I think 10 days is reasonable).

AFAIK your final "Letter Before Action" must be exactly that - a letter, not an email.

1990xrider

MattMattMattUK said:

1990xrider said:

I am clearly right as the council have repaired the hole just yesterday which I find highly interesting. 

Just to be clear, them repairing a pothole does not mean that they were required to repair it earlier, neither does it make them liable for damage that occurred before it was repaired. 

Also somewhat of a warning, hitting a pothole can be deemed an at fault accident for insurance purposes, if you go to court you will be required to inform your insurance company. 

How is it "at fault"? Would I really ? What would be the point of theninsurance company knowing? 

If their sole criteria for repairing it is depth...

They gave me the measurements of the pothole when they inspected it in may. I have asked for the measurements when inspected in August. If there is a large discrepancy between the two I will argue it is improbable for a pothole to have increased by a significant size within three months etc. I will also argue the council had ample , a reasonable amount of time within the 18 months leading up to my accident to repair. 

The council's own criteria determined road users had a 61-80% chance of hitting the hole, more or less exonerating the driver from fault . Being filled with water would have also disguised the potholes true depth. The pothole was measured as a metre in width. The road is 3.4m in width. This means when you take the pothole from the equation the road was only 2.4m which is well below the 3.5m minimum width threshold outlined by the government in respect of country roads 

I have other road users who have experienced damage one just a few weeks ago and they will be making witness statements when the court asks if it gets that far. 

Ultimately the council deemed it to not be dangerous and believed the pothole would only cause a jarring to passengers. So their own assessment was flawed as video evidence shows the impact on the car and I have the quotes for repairs (they haven't accused me of fabricating anything either). In an ideal world I would have gone back after taking the first pictures and drained the hole and measured but am away and the council fixed it just yesterday . I wonder if they are monitoring these sorts of forums. A person who had their car damaged by the hole did manage to measure it (no pictures) and measured it as 280mm, a very stark contrast to the 70mm the council measured.   

I will give them ten working dags from the date the email was sent, then I will send them a letter (and email) informing them they will be facing claim action

Dave_5150

What was the amount of your claim that was rejected and what did it include? 

1990xrider

Dave_5150 said:

What was the amount of your claim that was rejected and what did it include? 

£366.01 
Included 

New front suspension links + labour cost 
New shock absorbers + labour cost

The video I have shown them quite clearly shows the front left of the car dip into the hole and I'm only going at walking pace (2mph)