Actions before small claims court with council

MattMattMattUK

1990xrider said:

MattMattMattUK said:

1990xrider said:

Car_54 said:

1990xrider said:

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? 

Insurance companies class claims as fault or non-fault: black or white, no grey area. Any claim where they are unable to recover their costs is "at fault".

You need to read your policy docs. You are almost certainly obliged do inform them.

Nothing I can see in my insurance policy doc  relating to potholes . 

It will not specifically mention potholes, it will state that you must inform them of all accidents, hitting a pothole is an accident. 

1990xrider said:

I'm not claiming on the insurance so why would I tell them in the same way some people who have minor accidents where they are "at fault" agree with the other party to settle the repair themselves 

They do, but they should still inform the insurer of the accident, as required by their policy. Now of course it happens, but then most people do not generally go to court and state on public record that they have had an accident but did not report it to their insurer...

1990xrider said:

MattMattMattUK said:

1990xrider said:

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? 

You hit a stationary object/obstruction. The point of the insurance company knowing is that you are required to tell them as per your insurance agreement. Once you go to court there is evidence that states that the incident occurred.

1990xrider said:

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. 

Potholes can increase significantly in depth, width and breadth very quickly, or very slowly, it depends on a range of factors, the very wet July being one that has made many worse.

1990xrider said:

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 

If you think that exonerates the driver then you have a flawed understanding of the law. 

1990xrider said:

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. 

That is not relevant to liability, which is strictly defined.

1990xrider said:

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.   

They do not monitor these kind of forums, they will almost certainly have a published maintenance schedule and an FOI would show when the repair was scheduled and then actioned. The repair could have been scheduled, it may have been actioned because an accelerated deterioration was noted etc. 

1990xrider said:

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

You need to make sure you actually have a case first and from what you have posted I am not sure you actually do. Now do not get me wrong, I know it is annoying, in March I had a tyre ripped off a wheel in a pot hole that was totally filled with was filled with water during heavy rain, I was only doing 16 MPH at the time according to my dashcam so it was not as if I was driving recklessly, but after going through it I did not have a valid claim due. So after having that happen, having to change a wheel at one in the morning in torrential rain and then get a new tyre I was not best pleased, but spending more time getting angry over it and ultimately getting nowhere was not going to benefit me. 

The road was repaired just a couple of days after someone else I spoke to reported it. A local councillor was also aware of the situation. So it is possible the council pre empted what I would do. 

Here are the summary of the facts as I have so far ascertained. I wasn't sure I had a case to start with even though common sense said other wise but after a few weeks of intensive investigation and research I believe I have crossed the threshold to prove the pothole was dangerous and the LA failed to maintain the road

ECC were aware of the pothole in October 2021 and did not act in those 18 months to take action to rectify the defect, despite there being the opportunity to do so 

ECC's assessment of the pothole in the post-accident inspection was incorrect, given that the "Consequence" Score of 1 assigned to the hole after my accident did not correspond to the damage and impact suffered by the car, which is available to see on video.

ECC removed evidence from the public domain which showed the pothole dates back to October 2021. GSV imagery shows the gradual degeneration of the road, with the most recent imagery from 2018 showing the first formed pothole. The evidence still exists through a screenshot, of which metadata will confirm the date the screenshot was taken 

ECC deemed the pothole eligible for urgent repair in August 2023, but not between then and October 2021. 

The most recent scheduled road inspection in November Was carried out over a month later than it was supposed to be, and on both occasions "no actionable defects" were found despite ECC having knowledge of the defect, and it would have also been visible to the public eye. 

Other road users have suffered accidents owing to this pothole; approximately 14 days before this claim was sent , after ECC deemed it to be non dangerous in their assessment following my accident. Another took place around the time of the November 2022 inspection, further suggesting that ECC failed to recognise the danger or the pothole as part of their duties to maintain the road 

To clarify, the repair they just performed was not a scheduled one. It was an urgent repair carried out in a couple of days which should have been done after my claim according to their own criteria. Now yes potholes can deteriorate you are absolutely right. Which is why it is wrong for ECC not to have repaired the road during those 18 months when they could have expected for it to deteriorate. Potholes can deteriorate in a shorter amount of time but usually in winter/spring when things get colder. 

I am still not sure that actually constitutes a valid legal argument and the reality is that I could certainly not be bothered with the hassle of going to court for a few hundred pounds, especially with what I would view as a low probability of success. I would also be worried about it being allocated to Fast Track not Small Claims Track (councils generally push for Fast Track). I can see that you are going to pursue this via the courts regardless though, so it would be interesting to read the court's judgement either way once the case has been heard, if you would be happy to share the judgement after it is issued? 

I will be happy to do. It might seem like a relatively small amount but it's also the principle. The roads in Essex are in a terrible state and as my research has concluded many others experienced issues especially around the time of the last routine inspection in November 2022, with a firefighter reporting cars have had to have been towed out of the hole. 

I get it, poor roads are frustrating. I live in Buckinghamshire, someone recently changed the tagline on dozens of  of the "Welcome to Buckinghamshire" road signs from "Birthplace of the Paralympics" to "Birthplace of the failed road surface". Roads have been underinvested in for decades, we do not pay enough tax to maintain them properly, things like this are ultimately the consequence of that.

1990xrider said:

How is it fraud when I am not attempting to claim anything from the insurance company? Same with the others. 

So what do I do then as surely telling them months after the event would look odd and potentially bad 

I've never had any intention of claiming from insurance so never thought I'd tell them 

If people told their insurers every time they went over a pothole their phones would never stop ringing. Based on what you're saying just going over a pothole and not sustaining damage would be a collision. 

I did not view the incident as an accident so was unaware I would need to contact my insurance, is it worth doing as it's months after it happened would it impact my Ncd even if I'm not making a claim etc.

You are required to tell them of any accident, failure to do so is deemed insurance fraud. When you renew your policy you are required to tell them if you have had any accidents in the last twelve months, failure to do so is insurance fraud. Now people very often do not report minor accidents, bumps and scrapes, that happens, in general, that is not an issue. Where it does become an issue is when someone does not tell an insurance company at the time, does not tell the insurance company upon renewal, then goes to court and states that they had an accident.

You can bet if this goes to Fast Track the council will be bringing that up in court, because all councils do. The fact that you did not view an accident as an accident does not change it's status as an accident. You would likely lose your NCD and if you have renewed since then you would also likely have your policy cancelled and the implications that has going forward. Councils know how to play the game, if you do not have all your ducks in a row they will make it as painful as possible for you, and kill the ducks.

1990xrider said:

I will set up a gofund me to fund any potential legal fees but I believe the council may concede they must reimburse me without admitting liability based on someone with similar experience, and call the money a "goodwill gesture". Also I'm a student and not in full time work so I believe I'll probably get some leeway with any fees though do have savings 

The fact the council attempted to manipulate and destroy  online evidence of the pothole dating back to 2021 (and did destroy it by removing it from the public domain) is very dubious and the timing of it after my claim was rejected is again suspect. I appreciate this is circumstantial (though I do have evidence of the existence of the image) I believe a judge witnessing the video of the collision and reviewing ECC's own criteria will find their own grading was incorrect not to mention they had the opportunity to repair the pothole , it wasn't like they knew about it for just a week . I've looked at s58 and can deconstruct most of their arguments 

I'm half bluffing because I don't have the picture of the full depth of the pothole and have requested information on how they measured the pothole and pictures of it (they've only given me measurements), because based on the measurement they have given, and the one a witness has given, there is a huge difference (70mm from the council Vs 280mm from the witness).  Assuming the law of averages I'd settle for somewhere in the middle and take into consideration the fact my car has a ground clearance of 150mm and conclude that the council underestimated the pothole and did not measure it etc etc. 

The success rate for pothole claims is extremely low and I suspect most don't even take it as far as I've done it 

The success rate is very low because in general claims lack legal merit. Most people try to claim on based on emotion, rather than evidence of a breach of statutory duty by the legal entity responsible for maintaining the road in question, which is where liability then occurs. 

1990xrider

MattMattMattUK said:

1990xrider said:

MattMattMattUK said:

1990xrider said:

Car_54 said:

1990xrider said:

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? 

Insurance companies class claims as fault or non-fault: black or white, no grey area. Any claim where they are unable to recover their costs is "at fault".

You need to read your policy docs. You are almost certainly obliged do inform them.

Nothing I can see in my insurance policy doc  relating to potholes . 

It will not specifically mention potholes, it will state that you must inform them of all accidents, hitting a pothole is an accident. 

1990xrider said:

I'm not claiming on the insurance so why would I tell them in the same way some people who have minor accidents where they are "at fault" agree with the other party to settle the repair themselves 

They do, but they should still inform the insurer of the accident, as required by their policy. Now of course it happens, but then most people do not generally go to court and state on public record that they have had an accident but did not report it to their insurer...

1990xrider said:

MattMattMattUK said:

1990xrider said:

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? 

You hit a stationary object/obstruction. The point of the insurance company knowing is that you are required to tell them as per your insurance agreement. Once you go to court there is evidence that states that the incident occurred.

1990xrider said:

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. 

Potholes can increase significantly in depth, width and breadth very quickly, or very slowly, it depends on a range of factors, the very wet July being one that has made many worse.

1990xrider said:

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 

If you think that exonerates the driver then you have a flawed understanding of the law. 

1990xrider said:

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. 

That is not relevant to liability, which is strictly defined.

1990xrider said:

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.   

They do not monitor these kind of forums, they will almost certainly have a published maintenance schedule and an FOI would show when the repair was scheduled and then actioned. The repair could have been scheduled, it may have been actioned because an accelerated deterioration was noted etc. 

1990xrider said:

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

You need to make sure you actually have a case first and from what you have posted I am not sure you actually do. Now do not get me wrong, I know it is annoying, in March I had a tyre ripped off a wheel in a pot hole that was totally filled with was filled with water during heavy rain, I was only doing 16 MPH at the time according to my dashcam so it was not as if I was driving recklessly, but after going through it I did not have a valid claim due. So after having that happen, having to change a wheel at one in the morning in torrential rain and then get a new tyre I was not best pleased, but spending more time getting angry over it and ultimately getting nowhere was not going to benefit me. 

The road was repaired just a couple of days after someone else I spoke to reported it. A local councillor was also aware of the situation. So it is possible the council pre empted what I would do. 

Here are the summary of the facts as I have so far ascertained. I wasn't sure I had a case to start with even though common sense said other wise but after a few weeks of intensive investigation and research I believe I have crossed the threshold to prove the pothole was dangerous and the LA failed to maintain the road

ECC were aware of the pothole in October 2021 and did not act in those 18 months to take action to rectify the defect, despite there being the opportunity to do so 

ECC's assessment of the pothole in the post-accident inspection was incorrect, given that the "Consequence" Score of 1 assigned to the hole after my accident did not correspond to the damage and impact suffered by the car, which is available to see on video.

ECC removed evidence from the public domain which showed the pothole dates back to October 2021. GSV imagery shows the gradual degeneration of the road, with the most recent imagery from 2018 showing the first formed pothole. The evidence still exists through a screenshot, of which metadata will confirm the date the screenshot was taken 

ECC deemed the pothole eligible for urgent repair in August 2023, but not between then and October 2021. 

The most recent scheduled road inspection in November Was carried out over a month later than it was supposed to be, and on both occasions "no actionable defects" were found despite ECC having knowledge of the defect, and it would have also been visible to the public eye. 

Other road users have suffered accidents owing to this pothole; approximately 14 days before this claim was sent , after ECC deemed it to be non dangerous in their assessment following my accident. Another took place around the time of the November 2022 inspection, further suggesting that ECC failed to recognise the danger or the pothole as part of their duties to maintain the road 

To clarify, the repair they just performed was not a scheduled one. It was an urgent repair carried out in a couple of days which should have been done after my claim according to their own criteria. Now yes potholes can deteriorate you are absolutely right. Which is why it is wrong for ECC not to have repaired the road during those 18 months when they could have expected for it to deteriorate. Potholes can deteriorate in a shorter amount of time but usually in winter/spring when things get colder. 

I am still not sure that actually constitutes a valid legal argument and the reality is that I could certainly not be bothered with the hassle of going to court for a few hundred pounds, especially with what I would view as a low probability of success. I would also be worried about it being allocated to Fast Track not Small Claims Track (councils generally push for Fast Track). I can see that you are going to pursue this via the courts regardless though, so it would be interesting to read the court's judgement either way once the case has been heard, if you would be happy to share the judgement after it is issued? 

I will be happy to do. It might seem like a relatively small amount but it's also the principle. The roads in Essex are in a terrible state and as my research has concluded many others experienced issues especially around the time of the last routine inspection in November 2022, with a firefighter reporting cars have had to have been towed out of the hole. 

I get it, poor roads are frustrating. I live in Buckinghamshire, someone recently changed the tagline on dozens of  of the "Welcome to Buckinghamshire" road signs from "Birthplace of the Paralympics" to "Birthplace of the failed road surface". Roads have been underinvested in for decades, we do not pay enough tax to maintain them properly, things like this are ultimately the consequence of that.

1990xrider said:

How is it fraud when I am not attempting to claim anything from the insurance company? Same with the others. 

So what do I do then as surely telling them months after the event would look odd and potentially bad 

I've never had any intention of claiming from insurance so never thought I'd tell them 

If people told their insurers every time they went over a pothole their phones would never stop ringing. Based on what you're saying just going over a pothole and not sustaining damage would be a collision. 

I did not view the incident as an accident so was unaware I would need to contact my insurance, is it worth doing as it's months after it happened would it impact my Ncd even if I'm not making a claim etc.

You are required to tell them of any accident, failure to do so is deemed insurance fraud. When you renew your policy you are required to tell them if you have had any accidents in the last twelve months, failure to do so is insurance fraud. Now people very often do not report minor accidents, bumps and scrapes, that happens, in general, that is not an issue. Where it does become an issue is when someone does not tell an insurance company at the time, does not tell the insurance company upon renewal, then goes to court and states that they had an accident.

You can bet if this goes to Fast Track the council will be bringing that up in court, because all councils do. The fact that you did not view an accident as an accident does not change it's status as an accident. You would likely lose your NCD and if you have renewed since then you would also likely have your policy cancelled and the implications that has going forward. Councils know how to play the game, if you do not have all your ducks in a row they will make it as painful as possible for you, and kill the ducks.

1990xrider said:

I will set up a gofund me to fund any potential legal fees but I believe the council may concede they must reimburse me without admitting liability based on someone with similar experience, and call the money a "goodwill gesture". Also I'm a student and not in full time work so I believe I'll probably get some leeway with any fees though do have savings 

The fact the council attempted to manipulate and destroy  online evidence of the pothole dating back to 2021 (and did destroy it by removing it from the public domain) is very dubious and the timing of it after my claim was rejected is again suspect. I appreciate this is circumstantial (though I do have evidence of the existence of the image) I believe a judge witnessing the video of the collision and reviewing ECC's own criteria will find their own grading was incorrect not to mention they had the opportunity to repair the pothole , it wasn't like they knew about it for just a week . I've looked at s58 and can deconstruct most of their arguments 

I'm half bluffing because I don't have the picture of the full depth of the pothole and have requested information on how they measured the pothole and pictures of it (they've only given me measurements), because based on the measurement they have given, and the one a witness has given, there is a huge difference (70mm from the council Vs 280mm from the witness).  Assuming the law of averages I'd settle for somewhere in the middle and take into consideration the fact my car has a ground clearance of 150mm and conclude that the council underestimated the pothole and did not measure it etc etc. 

The success rate for pothole claims is extremely low and I suspect most don't even take it as far as I've done it 

The success rate is very low because in general claims lack legal merit. Most people try to claim on based on emotion, rather than evidence of a breach of statutory duty by the legal entity responsible for maintaining the road in question, which is where liability then occurs. 

I would be happy to send a letter and documents to you or anyone else here if that would help but not sure if that's wise. 

Why would it go to fast track when it is well well well below the financial threshold for that? 

Do I tell my insurers now then? 
Would that then enable me to add the extra cost of next year's insurance to the claim 

I fail to see why a council would bring up what is a contract between me and my insurers , a contract they are not privy to. They can bring it up but Im under no obligation to prove I have reported it or not. I have looked on other insurers websites (nothing on Churchill my insurers about the process) and none of them mention reporting it to them (the insurers). 

My insurance policy was taken out like a month before the accident so renewal isn't the issue. 

The council can't use s58 as a valid defence in my case, because : 

1) they had ample time to repair the road and could reasonably expected it would deteriorate. 
2) the road maintenance policy wasn't followed as the most recent annual inspection was over 13 months to the previous one (they are supposed to be very 12 months) . Know it's not a massive difference but still a breach afaik unless there is good reason 
3) whilst the road was a country lane and a reasonable road user might expect some defects with the road surface, a reasonable road user would not expect their vehicle to incur hundreds of pounds worth of damage or sink into a hole just by using the road. 
4) on both inspections in the last two years "no actionable defects" were found. Now I don't have a definition on "actionable" but witness reports from around November-December 2022 suggest the.potholr was bad enough for cars to have been beached in it, again they will make witness statements for the court. 

Why would the council remove a report from October 2021 detailing the first report of the pothole? It only did so after my claim. 

MattMattMattUK

1990xrider said:

I would be happy to send a letter and documents to you or anyone else here if that would help but not sure if that's wise. 

I would advise against that.

1990xrider said:

Why would it go to fast track when it is well well well below the financial threshold for that?  

Fast track can be used for cases deemed complicated, pothole claims are often deemed complicated, so they end up on the Fast Trak regardless of the monetary value of the claim.

1990xrider said:

Do I tell my insurers now then? 
Would that then enable me to add the extra cost of next year's insurance to the claim 

You would not be able to add the cost to the claim, no. Only you can make that judgement, but you will loose your NCD, if you have renewed since they will probably cancel your policy as well, which has fairly large implications going forward. They may cancel your policy for failing to notify them in time.

1990xrider said:

I fail to see why a council would bring up what is a contract between me and my insurers , a contract they are not privy to. They can bring it up but Im under no obligation to prove I have reported it or not. I have looked on other insurers websites (nothing on Churchill my insurers about the process) and none of them mention reporting it to them (the insurers). 

They would bring it up because they can, they can also inform your insurer, an accident occurred, you are involving the council and your insurer is an interested party. Councils do this as a deterrent to claims. Again, they will not mention potholes specifically, in the same way that they do not mention hitting beer barrels, they will mention accidents, this is legally an accident.

1990xrider said:

The council can't use s58 as a valid defence in my case, because : 

1) they had ample time to repair the road and could reasonably expected it would deteriorate. 
2) the road maintenance policy wasn't followed as the most recent annual inspection was over 13 months to the previous one (they are supposed to be very 12 months) . Know it's not a massive difference but still a breach afaik unless there is good reason 
3) whilst the road was a country lane and a reasonable road user might expect some defects with the road surface, a reasonable road user would not expect their vehicle to incur hundreds of pounds worth of damage or sink into a hole just by using the road. 
4) on both inspections in the last two years "no actionable defects" were found. Now I don't have a definition on "actionable" but witness reports from around November-December 2022 suggest the.potholr was bad enough for cars to have been beached in it, again they will make witness statements for the court. 

In your opinion, you are someone emotionally invested in a particular outcome, for most people that will in some way clouds their judgement. There is no such thing as a slam dunk. 

1990xrider said:

Why would the council remove a report from October 2021 detailing the first report of the pothole? It only did so after my claim. 

For a multitude of reasons, none of them really relevant as if it went to court then they cannot withhold that evidence from the court and they would also be required to reveal the information in the report under a FOI request.

I wish you luck, but I am going to check out of this thread now. I would recommend you seek proper advice before you try and take this further. Speak to Citizen's Advice, give them all the information, including about not having reported to your insurers.

Car_54

1990xrider said:

How is it fraud when I am not attempting to claim anything from the insurance company? Same with the others. 

People generally don't tell their insurers because they believe - probably correctly - that their future premiums will be higher.

Withholding information in order to make a financial gain is fraud.

1990xrider

Car_54 said:

1990xrider said:

How is it fraud when I am not attempting to claim anything from the insurance company? Same with the others. 

People generally don't tell their insurers because they believe - probably correctly - that their future premiums will be higher.

Withholding information in order to make a financial gain is fraud.

what would be the point of anyone pursuing litigation against a council for pothole damage if it still meant they'd be liable for an increased premium or losing their ncd? Id also argue it's not a financial gain it's to avoid a financial loss. The only money I set to "gain" in this case is simply being reimbursed with the monies the council caused me to lose through a road defect they failed to repair. 

I have not seen this mentioned in the mse guide about telling an insurer you have been involved in an "accident" if you hit a pothole, unless you decide to claim for the damage that way. 

Someone I have spoken to online who successfully got reimbursed  from the same council I am claiming from, and water authority, managed to avoid court never once told the insurers anything. 

I can see why it might be a "complicated" case but if it did get fast tracked I could just pull out and I will have only lost £50. 

Car_54

1990xrider said:

Car_54 said:

1990xrider said:

How is it fraud when I am not attempting to claim anything from the insurance company? Same with the others. 

People generally don't tell their insurers because they believe - probably correctly - that their future premiums will be higher.

Withholding information in order to make a financial gain is fraud.

what would be the point of anyone pursuing litigation against a council for pothole damage if it still meant they'd be liable for an increased premium or losing their ncd? Id also argue it's not a financial gain it's to avoid a financial loss. 

I'm afraid Parliament got there before you -

'“Gain” includes a gain by keeping what one has ..." [Fraud Act 2006, s 5(3)]

1990xrider

Car_54 said:

1990xrider said:

Car_54 said:

1990xrider said:

How is it fraud when I am not attempting to claim anything from the insurance company? Same with the others. 

People generally don't tell their insurers because they believe - probably correctly - that their future premiums will be higher.

Withholding information in order to make a financial gain is fraud.

what would be the point of anyone pursuing litigation against a council for pothole damage if it still meant they'd be liable for an increased premium or losing their ncd? Id also argue it's not a financial gain it's to avoid a financial loss. 

I'm afraid Parliament got there before you -

'“Gain” includes a gain by keeping what one has ..." [Fraud Act 2006, s 5(3)]

Interesting. Not seen informing your insurance company of the damage as part of any claim unless it's rejected and the monies are recovered through the insurance . Also I'd argue a fundamental part of fraud is intent. I've only just become aware of this apparent requirement to inform, though I can't find anything in my insurance docs saying how and when an accident should be reported. If it looks like the case will go on fast stream etc I'd call it a day . 

MacPingu1986

1990xrider,

Theft and fraud legislation doesn't go into that level of detail. They set out broad principles which are then applied to various situations. Eg:  The gain that you make in this instance is the benefit against the higher premium you might be asked to pay at renewal if the accident had been notified. 

Your insurance contract will probably include a requirement to inform of any accident -  For example, my car insurance policy states that I have to notify straight away if "the insured vehicle is involved in an accident no matter how trivial". (If this statement is in the contract means you are deemed to be aware of the requirement)

Now you're absolutely right that most people will hardly ever notify about these kinds of "trivial" accidents, but people aren't usually looking to then bring court cases against other parties on the basis that an incident took place.

The point is that if you issue a formal legal claim against the council for c£300 whilst you *might* be successful (I genuinely don't know enough about the thresholds of expected council repairs to give a view here), there are risks, namely:

• The council's legal defence asks whether you reported the incident to your insurer (and to provide evidence of the same). If you didn't they will state this is because you must have concluded an accident had not taken place. This also might then result in the incident subsequently being notified to your insurer causing policy cancellation, increased premiums etc... 

• If the claim's allocated to the fast track and you don't succeed you could be liable for all of, or a portion of, the council's legal costs which you then have to pay.

Personally, even without any adverse costs orders the time and effort you will spend is likely to far outweigh c£300. By all means write another letter to the council but I would be careful and speak to citizens advice or others with real hard experience of these types of claims before proceeding any further.

1990xrider

MacPingu1986 said:

1990xrider,

Theft and fraud legislation doesn't go into that level of detail. They set out broad principles which are then applied to various situations. Eg:  The gain that you make in this instance is the benefit against the higher premium you might be asked to pay at renewal if the accident had been notified. 

Your insurance contract will probably include a requirement to inform of any accident -  For example, my car insurance policy states that I have to notify straight away if "the insured vehicle is involved in an accident no matter how trivial". (If this statement is in the contract means you are deemed to be aware of the requirement)

Now you're absolutely right that most people will hardly ever notify about these kinds of "trivial" accidents, but people aren't usually looking to then bring court cases against other parties on the basis that an incident took place.

The point is that if you issue a formal legal claim against the council for c£300 whilst you *might* be successful (I genuinely don't know enough about the thresholds of expected council repairs to give a view here), there are risks, namely:

• The council's legal defence asks whether you reported the incident to your insurer (and to provide evidence of the same). If you didn't they will state this is because you must have concluded an accident had not taken place. This also might then result in the incident subsequently being notified to your insurer causing policy cancellation, increased premiums etc... 

• If the claim's allocated to the fast track and you don't succeed you could be liable for all of, or a portion of, the council's legal costs which you then have to pay.

Personally, even without any adverse costs orders the time and effort you will spend is likely to far outweigh c£300. By all means write another letter to the council but I would be careful and speak to citizens advice or others with real hard experience of these types of claims before proceeding any further.

I think I will avoid it if it is fast track. As for reporting to insurance I will look into this further. I can't find anything in my insurance doc which gives a timeframe. 

Also I find the idea that the council would somehow tell my insurance company that I didn't report it a bit odd. Firstly the council would need to find out who my insurer is, and by all means there is no mechanism for them to do so other than asking me, and if I refuse I don't believe there is anything they could actually do. 

Secondly if I did lose there would be no benefit for the council in telling my insurer I did not report. 

I know you say it doesn't go into much detail but to establish intent the first thing they'd probably try and work out is how much money I would lose on next year's premium if I did report. In reality probably not a huge amount having reported a small accident to them the previous year where I hit a third party in a car park. If it was a small amount then hypothetically the question over intent would probably be settled in that it would be such a small amount there was no reason for me to actually decieve the insurance company. 

Honestly there are so few people I have read about anyone actually taking this to court but I want to. Just as a test case if nothing else. 

The council will have a few more working days to respond and then I will email /send them a letter saying if no response is recurved within another 5 working days I will start court action or something like that. 

If it looks like it will go to the fast track I'll lose £50 I'll cut my losses snd pull out 

MacPingu1986

The point around the insurance reporting requirement is that the council could tie you up in knots here. eg: The council could easily ask for insurance policy docs as part of pre-trial disclosure and to query why you didn't mitigate your loss by relying on your insurance to make the repairs & the reasons your insurer gave for refusing. If you didn't view it as an incident in terms of reporting obligations to your insurer, why it is now an incident in terms of a claim against the council? The council will argue it's either both or none. If you refuse to disclose any of your insurance arrangements it leaves you in a weak position.

As for cutting losses and withdrawing if it gets allocated to fast track - the problem here is that claims track allocation doesn't take place until after a defense has been filed by the council (and their costs have started to accrue), if you then withdraw or discontinue the claim and it was allocated to fast track, the default position for the costs order is that you are liable for the councils costs up to that point. For reference the baseline hourly rate that are used to calculate costs by the councils legal team here are about £120-200 per hour. The council could easily have racked up 5+ hours of time in pre-claim correspondence, writing the defence, filing the allocations questionnaire etc...