Small Claims Court (Pothole Claim Against Council, I'm A Small Business)

jemimavintage_2

Hi Group - I had almost £1000 damage to my car via a pothole in West Sussex. I followed the claims procedure *from* the council. A trainee denied my claim (I could see on the letter that her title was 'trainee'). I then spoke to their litigation department. They said they would look at the claim again. Looking back now? I don't believe they *did* look at the claim again but anyway, it was denied. I called the council again and spoke to a lovely customer service agent who told me that I should request data and documents relating to the pothole. I did this. It was all sent to me in a relatively unreadable format so I spent a whole day going through it with a fine toothcomb & I composed a report where it was clear that the litigation department had lied about certain aspects relating to the pothole. 

So it was the council themselves (via the customer service agent) who told me to read all freedom of information data. When I sent the report back to the council, I didn't get ANY response. I had to keep pushing and pushing for a response to my report (which had just taken absolute hours. I have autism and I does drive me insane if there is any data that I haven't seen or understood properly. The council know I have autism, diagnosed). I finally got a reply to my report saying words to the effect of:

'You have no right to re-review of your claim. Take us to court if you dare, lol'... which is the opposite of what I had been told prior to me putting the effort into the freedom of information data/documents. 

The reply also said I could contact the Ombudsman. I contacted the Ombudsman. More time and form filling (which is fine because it's my belief that my claim is legitimate). Lots of time passes again. We're now almost a YEAR into this claim. I get a reply from them saying they're not going to do anything about it (because? they found the council didn't 'break any rules'?? whatever it is they look for, who even knows) and my next step is small claims court. 

So I guess my next step *is* the small claims court. 

Small claims court is not a process I'm familiar with, especially as it will be a business taking the council to court. 

Is it possible someone could just bullet point what the process would be for a small business please? I'm struggling to find what the actual process *is*. I can see what the process is for an individual. 

If anyone has any other thoughts about how I should approach this, please let me know. 

thanks, 

J

GrumpyDil

I think the starting point if you are willing to do so would be to ask for this post to be moved to the motoring board where there are regular threads around pothole claims.

That said, in order to make a successful claim, you will need to demonstrate that the damage was caused by a pothole and that the council had been negligent in not filling the pothole in. 

To do that you would need to demonstrate that the council failed to maintain a check on their roads or were aware of the pothole but failed to repair it within a reasonable time. 

As I said ask to get this moved to the motoring boards and search that area of the site for threads around pot holes. 

pramsay13

A few thoughts
By saying I'm a small business, do you mean you're a sole trader? 
Why not claim on your car insurance?
What makes you think you have a claim, did the council know about the pothole?
Is it worth pursuing? It sounds as though you've already lost a lot of time when you could have been earning money instead. 

jemimavintage_2

No, it's a limited company. Yes, the council knew about the pothole. Their head litigator said (in writing) that once the pothole had been 'fixed' there's no way that it would have then degraded-over-time----when in fact, the FOI data/documents showed that not only did it subsequently degrade within days, but it had been failing/filled/failing/filled for years prior---the exact same pothole. 

The car is a company car so I'm reticent to claim on the insurance. 

The pothole still exists today and is still a huge danger. The FOI info had many details of near misses with cars, motorbikes, cyclists, school just metres away with kids crossing etc etc. 

jemimavintage_2

I have no choice now but to go to court to seek a judgement, so my question is less about the pothole etc and more about the process for businesses for small claims. 

lincroft1710

Small claims procedure is basically the same for a business as for a private individual. Follow the online guidance, which will usually start with you issuing a Letter Before Action

DullGreyGuy

lincroft1710 said:

Small claims procedure is basically the same for a business as for a private individual. Follow the online guidance, which will usually start with you issuing a Letter Before Action

Business is slightly different because a company cannot turn up in court itself it has to be represented. 

Unfortunately dont know the detailed rules in the UK having never had to do it but for example in Ireland, which has a similar but not identical legal system, other than in exceptional circumstances the company must be represented by a lawyer and cannot solely have lay representation in the form of a director. 

lincroft1710

DullGreyGuy said:

lincroft1710 said:

Small claims procedure is basically the same for a business as for a private individual. Follow the online guidance, which will usually start with you issuing a Letter Before Action

Business is slightly different because a company cannot turn up in court itself it has to be represented. 

Unfortunately dont know the detailed rules in the UK having never had to do it but for example in Ireland, which has a similar but not identical legal system, other than in exceptional circumstances the company must be represented by a lawyer and cannot solely have lay representation in the form of a director. 

To satisfy my curiosity can you please point out whereabouts this is on the Gov UK Money Claim website, as I couldn't find it (probably mea culpa)

DullGreyGuy

lincroft1710 said:

DullGreyGuy said:

lincroft1710 said:

Small claims procedure is basically the same for a business as for a private individual. Follow the online guidance, which will usually start with you issuing a Letter Before Action

Business is slightly different because a company cannot turn up in court itself it has to be represented. 

Unfortunately dont know the detailed rules in the UK having never had to do it but for example in Ireland, which has a similar but not identical legal system, other than in exceptional circumstances the company must be represented by a lawyer and cannot solely have lay representation in the form of a director. 

To satisfy my curiosity can you please point out whereabouts this is on the Gov UK Money Claim website, as I couldn't find it (probably mea culpa)

As I said, I dont know the rules in the UK/England, my business litigation has all been with corporations that naturally had a solicitor/barrister so it never has come up. 

It's logical that a Limited Company cannot turn up in court itself because is a non-natural person and so has no physical form. Googling had been unable to find the rules of who can represent the legal entity in court, as mentioned such searches throws up Irish law which says it has to be a lawyer but England & Ireland have similar but not identical rules so cannot assume that because its how it is there that its the same here. Many misquote the caselaw on UK forums thinking it is from the UK when its from the Republic of Ireland. 

Actually having done some future checking it appears we are divided in the UK, in England & Wales a company can have a lay representative since 1998 whereas in Scotland thanks to (Equity and Law Life !!!!!! Soc v Tritonia Ltd (1943)) only in exceptional circumstances can they, in normal circumstances they must have a legal professional representing it. This comes from a law newspaper rather than the government website but the England position is from the CPR so could be found if really important. 

lincroft1710

I think if a company was forced to employ a lawyer to represent them when making a claim, that could be financially burdensome, especially a very small operation

DullGreyGuy

lincroft1710 said:

I think if a company was forced to employ a lawyer to represent them when making a claim, that could be financially burdensome, especially a very small operation

Yes, and why many companies make a commercial decision on the viability of action rather than emotional/ethical ones. 

On the flip side, if you had a minor car accident and the third party insurer wasn't playing ball how would you feel on your day in court if your insurers sent Bob from the Postroom to represent the insurer on your behalf rather than a lawyer?

Once you move outside of the one man band companies you certainly can start asking questions of if the director that wants to litigate is acting in the best interests of the shareholders or principle and do they know the CPR not to mess it up and cost the company a lot. Its these reasons that some jurisdictions say that a lawyer must be involved