Actions before small claims court with council

15681011

Comments

  • tedted said:
    your claiming for both sides and that pothole is not steep its quite a small slope and at the speed you state ie 2 mph nothing should have broke and if it did it would be the n/s
    Another witness has come forward this one with a photo of a car in the hole around winter time. 
  • 1990xrider
    1990xrider Posts: 105
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    edited 13 September 2023 at 4:55PM
    Latest update:

    Council lawyers have responded. They seem to be arguing the following:

    they want the case struck out via Part 3.4 CPR, on the grounds that there is no case to answer for because:

    1) they appear to suggest i have no actual proof of the accident
    2)  they're arguing the defect was not considered dangerous, and as an alternative suggest driver error.


    I've spoken to a mechanic who did the suspension links - initally he said he would be reluctant to because hed have asusmed the alloys would be damaged first but hes watched the video and said the shock absorbers definitely went.



  • Ectophile
    Ectophile Posts: 7,214
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    The court gets to decide on the council's claim there, not the defendant. https://www.legislation.gov.uk/uksi/1998/3132/rule/3.4/made
    Do any of (a), (b) or (c) apply here?  If not, call their bluff.
    If it sticks, force it.
    If it breaks, well it wasn't working right anyway.
  • 1990xrider
    1990xrider Posts: 105
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    edited 13 September 2023 at 8:54PM
    Ectophile said:
    The court gets to decide on the council's claim there, not the defendant. https://www.legislation.gov.uk/uksi/1998/3132/rule/3.4/made
    Do any of (a), (b) or (c) apply here?  If not, call their bluff.
    No not at all. Theyre arguing 

     The Defendant contends that the Claimant does not have a cause of action to
    bring a claim against Essex County Council. The claim form fails to set out any
    cause of action or details of the circumstances of the accident and/or
    allegations of breach of duty against the Defendant. The Defendant therefore
    denies it is liable to the Claimant as alleged or at all and the Defendant invites
    the Court to strike out the claim pursuant to its powers set out at Part 3.4 CPR.
    2. Further or alternatively, and without prejudice to the above, the Defendant will
    say as follows:
    3. Save as set out below, the Particulars of Claim are denied.
    4. As for paragraph 3.1, no admissions are made as to the circumstances of the
    alleged accident. The Claimant is put to strict proof of the accident and the
    circumstances of the accident those being outside the direct knowledge of th

    Para 3.1 

    3.1. In May 2023 whilst travelling on an Essex County Council maintained road,
    my vehicle hit a pothole. After driving away I noticed a rattling noise from my
    car. I took my car to two different garages, where the front stabiliser links and
    shock absorbers were identified as broken, and replaced at a total cost of
    £363.01.



    The only thing I can think of is in that para I didn't specify which road (an oversight on my part) but it's mentioned elsewhere and in the timeline. I can't see why a court would throw out a case because of that 

    I've made it clear why I am making the claim throughout, though the lawyers seem to have misunderstood - they're arguing the pothole was not dangerous according to their records. I'm arguing it was originally not dangerous,  but still required non urgent repair but wasn't done in a reasonable amount of time. Im also arguing the post accident assessment was flawed as it failed to measure the hole accurately which would have no doubt given a different categorisation 

    I'm happy to sit it out - just don't want it to be put on fast or multi track. But then I heard fast track is always a the high court and cannot possibly see how a pothole case involving less than £400 worth of damage would ever be heard at the highest court in the land. 

    I was helping someone else out in a similar situation with the same council in the same area. It seems like Essex cc don't actually get out and inspect the potholes on foot when it's a member of the public who have reported it (ad hoc) - they just film from the inside of a van. In this gentleman's case they hadn't even provided a measurement of the hole. 

    I don't know what "proof" they require for causation, I will be getting a letter from the mechanic who did the first repair. The council required no "proof" of cause other than invoices for their own claim system so i fail to see why their lawyers would find the current evidence i have presented them unsatisfactory. 

    I'd like to think that the dashcam footage will settle it for the judge. I'll be open to mediation even if it does sweet fa. 
  • Ok was wondering whether @Ectophile or someone else could advise.

    So was sent the N180 form today.
    Is it better i bring a lot the witnesses or just get statements?
    I suppose bringing them along would be better but it complicates things and i don't want to deter them from giving evidence.

    Also confusingly the money claims portal updated to read

    "

    Essex County Council applied by post to change something about the claim

    We’ll post you a copy of their application. This will explain what you need to do next.

    Your online account won’t be updated - any further updates will be by post."


    Wonder what that means and why they couldn't do whatever it was online/

  • Ok hi everyone I need advice on this asap. 

    If I am right in thinking the council have made an application for a summary judgment or a strike off, can I discontinue without paying any costs other than losing the fee I paid at the start? 

    I don't want to and feel it is unjust but I don't want to pay out for their fees if they argue on some technicality the particulars of claim weren't valid or whatever. 

    I had the n180 form small claims track so presumably I am on small claims track? 


  • Judges get letters requesting striking the claim out all the time. They usually go in the bin.

    A summary judgment application still comes with a hearing in person where the judge will explain his reasoning for denying/allowing to both sides. 

    I'd be surprised if the judge didn't just go for a normal, vanilla small claims track hearing. It's exactly the kind of case the system is designed for.
  • Car1980 said:
    Judges get letters requesting striking the claim out all the time. They usually go in the bin.

    A summary judgment application still comes with a hearing in person where the judge will explain his reasoning for denying/allowing to both sides. 

    I'd be surprised if the judge didn't just go for a normal, vanilla small claims track hearing. It's exactly the kind of case the system is designed for.
    True I'm hoping if the judge does think the particulars are problematic I can just amend them. Everything was done by the book
  • I called up the court, they tell me the "application" in question is just the council adding their solicitor's address to the claim 
  • 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.
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