Actions before small claims court with council

1990xrider

MacPingu1986 said:

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...

Isnt there a provisional allocation though and based on that I could then pull out etc?
I'm aware if they did raise the insurance it would be in that context. 
Why is it called the fast track as I'm pretty sure it takes about 12 months whereas small claims takes 6 months right? 

I will speak to C.A.B but pretty sure they'll just tell me to claim through insurance . 

MacPingu1986

There's no provisional allocation prior to the defense being filed. 

The way it works is after your claim has been filed and you've sent to the council, the council then has 14 days to notify the court the claim is being defended and file a defense. At that point the court then sends out allocation questionnaires to both parties where they set out which track they want to claim to proceed on and reasons why. If there's disagreement then the next step is for a court hearing to determine the track allocation - that's the point at which you'll know.

As for why its call the fast track, you have to remember that the timescale of a fast track claim is relatively short in the context of litigation on the third track - the "multi track" where claims can take many years.

1990xrider

MacPingu1986 said:

There's no provisional allocation prior to the defense being filed. 

The way it works is after your claim has been filed and you've sent to the council, the council then has 14 days to notify the court the claim is being defended and file a defense. At that point the court then sends out allocation questionnaires to both parties where they set out which track they want to claim to proceed on and reasons why. If there's disagreement then the next step is for a court hearing to determine the track allocation - that's the point at which you'll know.

As for why its call the fast track, you have to remember that the timescale of a fast track claim is relatively short in the context of litigation on the third track - the "multi track" where claims can take many years.

Presumably I can contact the council directly to negotiate and is there also not a mediation service?

So the court sets out their preference for track allocation not the council etc. 

MacPingu1986

Negotiating with the council is what you're doing at the moment by corresponding with the council in advance of any potential issuing of a claim.

Once the council have filed their defence, allocation questionnaires are sent out to both you and council, these are then completed by each of you, and then filed with the court who then make the decision.

Mediation services do exist but I doubt the council would agree to mediation because the costs of you and the council paying a mediator would likely be far in excess of the claim value.

Of course there's none of the cost issues if this ends up on the small claims track (and I have no idea where pothole claims of this nature usually go) - but these are the risks if its fast track.

1990xrider

MacPingu1986 said:

Negotiating with the council is what you're doing at the moment by corresponding with the council in advance of any potential issuing of a claim.

Once the council have filed their defence, allocation questionnaires are sent out to both you and council, these are then completed by each of you, and then filed with the court who then make the decision.

Mediation services do exist but I doubt the council would agree to mediation because the costs of you and the council paying a mediator would likely be far in excess of the claim value.

Of course there's none of the cost issues if this ends up on the small claims track (and I have no idea where pothole claims of this nature usually go) - but these are the risks if its fast track.

The thing is I'm very doubtful the council will actually respond. They said in the rejection of my claim the next step if I wanted to take things further would be small court. We will see what (if) they say anything. I did ask for an email to confirm receipt but other than an automated reply there's been nothing of the sort.  

Ectophile

I have to say that this forum is plagued by naysayers who will tell you that you can never win against any big company or government organisation. Ever.  You will always lose and end up paying them huge fortunes in legal fees.

In reality, I don't know how a judge will rule in a specific case, and they don't know either.

The council's legal team may decide that they haven't followed their own rules, give in and pay you before it gets to court.  Or not.

The judge might blame you for hitting a stationary pothole.  Or blame the council for failings in their procedures.  The council's main defence against negligence claims is that they have procedures against damaging potholes, and that they followed them.  if they didn't follow them, their defence is much weaker.

tedted

are you claiming for two links and two shock absorbers?

Dave_5150

Telling your insurer is covered in "the need to knows" in the same pothole guide you obtained the letter template from: 

https://www.moneysavingexpert.com/reclaim/pothole-claims/

tl;dr "Insurers tell us drivers should notify them of pothole damage immediately, regardless of whether they intend to claim"

MacPingu1986

Ectophile said:

I have to say that this forum is plagued by naysayers who will tell you that you can never win against any big company or government organisation. Ever.  You will always lose and end up paying them huge fortunes in legal fees.

In reality, I don't know how a judge will rule in a specific case, and they don't know either.

The council's legal team may decide that they haven't followed their own rules, give in and pay you before it gets to court.  Or not.

The judge might blame you for hitting a stationary pothole.  Or blame the council for failings in their procedures.  The council's main defence against negligence claims is that they have procedures against damaging potholes, and that they followed them.  if they didn't follow them, their defence is much weaker.

No one is saying we know how a judge would rule in the OPs case ,nor that claimants will always lose and have to pay huge fortunes. 

The council might well decide they've completely messed up and pay out. What has been warned is that *most* pothole claims fail (c75% on average), and if the claim isn't allocated to the small claims track, there are cost implications. These aren't enormous, but risking a potential costs bill from an unsuccessful claim of even say £500-1500 needs to put into context of the overall low claim amount as to whether the claim is worth it.

1990xrider

tedted said:

are you claiming for two links and two shock absorbers?

Yes. I am