Small Claims County Court process: General Form of Judgment or Order

[R0b]

Re: Small Claims County Court process: General Form of Judgment or Order

What was the name of the case they were referring to? They won't get 125k damages as they have already issued the claim of what they would like from the matter. It's a shame you already put in your defence otherwise you could have put in a counterclaim for misrepresentation. If you did that now it would cost so might not be worth it.

Anyway a witness statement is similar to a defence and needs to be set out in a particular way. It's a statement of concise facts along with any evidence you wish to rely on. If this was all conducted orally then you say so.

If you want to have it looked over before you serve and file it then I'm sure one of us can give some comments if you post t up

[pampampam]

Re: Small Claims County Court process: General Form of Judgment or Order

One of the cases they referred to is Eaton Mansions (Westminster) Ltd v Singer Compania de Inversion SA see info below - however, I don't think this is in any way similar to our case. No damage was caused. The neighbours were not inconvenienced. We needed scaffolding to address an urgent damp problem which had we applied though Access to Neighbouring Land Act we would undoubtedly been granted access - we did not only because we were going through the party wall process and the neighbour and pw surveyor indicated the issue of scaffolding would be addressed at the same time. They lied, the pw award when delivered did not contain reference to scaffolding to address the separate damp issue [as an addendum]. Had they been honest up front we would have applied under ATNLA but by the time the award was delivered our property was already deteriorating fast and we needed to address it quickly so we went ahead with the planned works.
Actions in Trespass – Eaton Mansions (Westminster) Ltd v Stinger Compania De Inversion S.A. [2013] EWCA Civ 1308

NOVEMBER 27, 2013 BY BENCHMARK SOLICITORS
Actions in Trespass
The case of Eaton Mansions (Westminster) Ltd v Stinger Compania De Inversion S.A. [2013] EWCA Civ 1308 concerned the unlawful installation by the tenant of air conditioning units on the roof of a block of flats in Belgravia. The landlord commenced an action for an injunction to remove the units and damages for trespass. Following the summary determination of the claim in the landlord’s favour, damages were awarded in the sum of £6000 for a year’s trespass together with £1716 for removal of the air conditioning units. The landlord appealed seeking damages totalling around £300,000 upon the basis of previously established precedent which provided for damages to be assessed with reference to the potential gain the trespasser would have received from their trespass, citing an increase in value of the flat due to the air conditioning. The Court of Appeal dismissed the appeal stating that the basis for assessment of damages for trespass was not the potential gain of the trespasser rather the likely cost to the trespasser in obtaining permission or a licence for the period of the trespass. In the circumstances, the court considered that the licence to install the air conditioning units for 12 months would be appropriately set at £6000.
This case demonstrates the change in position of the courts in the assessment of damages for trespass.

[pampampam]

Re: Small Claims County Court process: General Form of Judgment or Order

The other claim where £125k was sought is below. They wrote that the damages their clients would seek include "buy out damages" being a sum based upon what reasonable [my italics!] people in the parties would, hypothetically have negotiated fro the right to have a licence to erect scaffolding. Their letter concluded 'We again reserve the right to refer to this letter on the issue of costs.' Looking at the text below I can see that the claimants sought damages of £125k but I'm not sighted whether they achieved this?

Temporary trespass

Sinclair v Gavaghan [2007] EWHC 2256 (Ch)

The defendants owned a piece of undeveloped land with no access to the public highway. They bought an adjacent property, which did have access and obtained planning permission for the undeveloped land with access to the highway over the property they had purchased. The claimants owned a triangular piece of land, which protruded several feet into the driveway of the purchased property. In the course of the development, the defendants’ vehicles regularly crossed this piece of land. The claimants obtained an injunction and claimed damages of £125,000, which they contended with what they would have charged for a license for the temporary use of their land.

[Amethyst]

Re: Small Claims County Court process: General Form of Judgment or Order

The court is required to assume a hypothetical negotiation between a willing and reasonable person in the position of the trespasser and a willing and reasonable person in the position of landowner. The appropriate measure of damages is the price which such persons would have negotiated as the reasonable price payable for the relevant right of user, or the sum of money which might reasonably have been demanded as a quid pro quo for permitting the trespass. The respective negotiating strengths and weaknesses of such parties, such as the fact that one party held a “trump card” and could have stopped the person in the position of the trespasser from obtaining any benefit, are relevant to that process; although the fact that one of the actual parties might have refused to agree is irrelevant.

useful article ( well interesting maybe not highly useful - http://www.ealaw.co.uk/articles/damages-in-trespass )

[pampampam]

Re: Small Claims County Court process: General Form of Judgment or Order

Thank you - I've had a read through. Our case is different inasmuch that we didn't trespass purely for commercial/monetary gain but through necessity and had we gone through Access to Neighbouring Land Act then we would have been granted access. We didn't because the neighbour [and later the PW surveyor] advised permission would be granted with/as an addendum to the party wall award which they succeeded in drawing out as long as possible ! Of course when the award arrived scaffolding for the alley to address the damp wasn't in - forcing us back into the hands of the same p.w. surveyor so he could draw up a ludicrously expensive license and the neighbour could claim £500 per week scaffold licensing fee. I can't seem to find anything on the internet with similar circumstances - perhaps that means that most other neighbours act in a more reasonable manner?

[R0b]

Re: Small Claims County Court process: General Form of Judgment or Order

Thank you - I've had a read through. Our case is different inasmuch that we didn't trespass purely for commercial/monetary gain but through necessity and had we gone through Access to Neighbouring Land Act then we would have been granted access. We didn't because the neighbour [and later the PW surveyor] advised permission would be granted with/as an addendum to the party wall award which they succeeded in drawing out as long as possible ! Of course when the award arrived scaffolding for the alley to address the damp wasn't in - forcing us back into the hands of the same p.w. surveyor so he could draw up a ludicrously expensive license and the neighbour could claim £500 per week scaffold licensing fee. I can't seem to find anything on the internet with similar circumstances - perhaps that means that most other neighbours act in a more reasonable manner?

Yes you are right, they all seem to be commercial cases which are for development of some kind which has gained a benefit. So the cases they have used can be distinguished from yours as you are only repairing your home. The Sinclair v Gavaghan case turns out that they only received £5,000 which was essentially what the court considered the parties would likely to have agreed to if a licence had been in place. They claimants claimed £125,000, contended a minimum of £103,000 and only got £5,000. They appealed and the appeal was dismissed.

From what i have read, 4 options you can come to your neighbour agreeing to using their land - 1. Party Wall agreement 2. Formal licence e.g. scaffolding licence 3. ANLA 1992 or 4. an informal agreement with your neighbour.

So yes, I think your main arguments here is they seem to be incurring unnecessary costs, causing delays and as a result of the delays have had no choice but to repair the damp otherwise it would have likely cost even more to repair? As they then decided they wanted a licence agreement instead and then start charging this also appears to have caused further delays.

And as you said that you stated earlier, you could have gone to court to gain an access order but relied on your neighbour and the surveyor to draft up the terms correctly.

By the way, I am assuming the reason you got a party wall surveyor was because the repairs were linked to a party wall? If so the Part Wall Act 1996 applies, and I did some reading on that which says there were certain steps to folllow and in addition to that you have the right to instruct your own party wall surveyor if you wish.

[pampampam]

Re: Small Claims County Court process: General Form of Judgment or Order

Thanks Rob, very interesting indeed to note that although the £125k was claimed they only got £5k!!! I couldn't find that out on the internet and was left only with the £125k figure presumably which was the solicitor's intention to frighten me into agreeing to their terms.

The repairs were a separate issue we just thought it made sense when we were having work done at the rear [extension] that when the scaffolding went up at the back we would also have it down the alleyway to address the damp at the same time. I met with the neighbour before the works and explained necessity for scaffolding and that we could apply to the court through the Access to neighbouring land act but as by then we were formalising the party wall act requirements we agreed this would be addressed at the same time. They wanted tower scaffolds which could be wheeled away and I said I would look into it but for Prior to our meeting I hadn't realised the 'etc' part of the Party Wall etc Act' covered associated works - I do now!] as we had done an informal party wall agreement between ourselves and our next door neighbour with whom we share an actual party wall, and they with their neighbours [we are in a row of terraces] - yet the neighbour who is causing the trouble we are separated by an alleyway over which we have the right of way and which leads to their door [they moved their front door to the side years ago!].
Although this was agreed in a face to face meeting the neighbour, when I served the pw notices nominating a local pw surveyor - she dissented and went for one
150 + miles away for some reason! When the site visit took place he told us the scaffolding down the side would be addressed in his award. almost 4 weeks later after a very wet period - award delivered - no scaffolding for the damp - [understand this could have been dealt with as an addendum or a separate note] so then we were in the situation where they demanded we enter into a scaffolding license etc. they said they would contact the same chap the following week - nothing happened - all delaying tactics so we went ahead. If neighbour had been honest at the outset we would have gone through the ATNLA process and it would have all been sorted. The building owner [BO] offers the adjoining owners [AO] the opportunity to use the BO's pw surveyor but the AO can dissent and in such cases the BO has to pay their own surveyor AND the AO's surveyor and although the BO's surveyor will give a set charge - the AO's pw surveyor does not! So we were open to our pw surveyor charges AND the AO's unknown costs. We scuppered this ploy by appointing the AO's pw surveyor to act as an agreed surveyor- the AO's could hardly object as they had chosen him. However, although the agreed pw surveyor should be neutral - clearly in this case he was not.

[R0b]

Re: Small Claims County Court process: General Form of Judgment or Order

Just to sum up all of what I have said so far, my view on your case is this.

1. It was informally agreed at a face to face meeting that access to their land would be given, the purpose of putting it into a written agreement was more of a formal thing than anything else. Therefore consent to access the land was given at the time of the meeting.

2. Again, at a later stage, the neighbour represented and agreed that consent to the land would be given and the PW surveyor would include this as part of the PW Agreement. You had already made the neighbour aware that if consent was not agreed you would seek an order from the court which although would delay things slightly, would nonetheless be granted. 4 weeks later the agreement came through and did not include the consent to repair the damp - neighbour was to contact the surveyor (to rectify this issue?) and after a week nothing heard back. So the court doesn't agree with 1. then you claim that the neighbour deliberately misrepresented the fact that consent would be given (no mention of cost or compensation at the time). But for the misrepresentation, you would have applied to court and gained an access order.

If the court disagrees with the above then you may have to reside yourself to the fact that you were trespassing on the land. The question would now be as to the measure of damages and whether there are any mitigating or aggravating factors by either parties.

Eaton Mansions v Westminster - The Court of Appeal dismissed the appeal stating that the basis for assessment of damages for trespass was not the potential gain of the trespasser rather the likely cost to the trespasser in obtaining permission or a licence for the period of the trespass. In the circumstances, the court considered that the licence to install the air conditioning units for 12 months would be appropriately set at £6000

Sinclair v Gavaghan - To assess the damages for G's unauthorised use of S's land the court had to determine the acts of trespass, what their purpose and effect were in relation to the development of G's land and what alternatives G had to using S's land to carry out those works

The above highlighted in red is particularly useful, you could argue that because the damp is considered to be repairs and not an extension to build or gain any benefit, one would normally go gain an access order under the ANLA 1992. Therefore on that basis it would be unlikely that the court would make an award for compensation given the length of time the scaffolding would be in place, or alternatively if they did, it would be a nominal sum.


There's a very interesting case which was in January last year that may be of some help to you Dawoodi v Zafrani 2015 in the Technology and Construction Court I have attached the transcript to this post (this court dealss with alot of these types of issues so judges have expert knowledge in this area). A few key points to note:

Paragraph 59: I have some regard to the £5,000 figure awarded by Patten J in Sinclair v Gavaghan although I a bound to say in the present context it does seem to me that £5,000 for a three-month licence is a rather high figure. This court deals with Party Wall appeals throughout London and such licence agreements and fees do regularly arise in such case. Given the court's general knowledge of such matters, and given the features which I have outlined, I consider that the appropriate figure for damages is to be assessed by reference to a licence fee of £750 per month, making a fee of £3,000 for the period August 2009 to December 2009

As you can see the judge has sort of disregarded the figure in Sinclair v Gavaghan as being too high for 3 months of scaffolding being in place. You will also note that he made an award of £750 per month, and in the Eaton Mansions v Westminster case, the Court of Appeal ordered £600 per month for a licence. So, their claims for a circa £2k is arguably considered too high. You could maybe persuade the judge to say subject to any mitigating/aggrevating factors, an award of £500-£600 for the 4 weeks that the scaffolding was in place.

And then you would argue any aggrevating factors from the neighbour was the fact that he sought to instruct a surveyor 150 miles away. Although the neighbour is entitled to select their PW surveyor how they so chose, this would incur further costs such as travelling expenses, with the neighbour knowing that those costs would be borne by you.

Again referring to my earlier paragraph that it was agreed that the consent was already given verbally,it would be formalised in the PW agreement but never came to fruition. You chase this up and the neighbour said they would but nothing came of it. These actions would suggest that the neighbour is being difficult and delaying the erection of the scaffolding despite being aware that the damp would need to be addressed as a matter of urgency (note I say suggest as you want the judge to infer that this was the reason as you can't prove that the neighbour deliberately did this).

Therefore you could argue that any damages the judge may award is to be deducted based on the conduct and behaviour of the neighbour.


Hope that helps

[pampampam]

Re: Small Claims County Court process: General Form of Judgment or Order

Wow Rob it certainly does help - thank you so much - I'm very grateful to you for spending so much time with me and providing such considered advice. I've started the chronology and will get it finished over the weekend. I'm a bit nervous about having to represent myself in court never having been in this situation before and I hope that the other side won't bring their solicitor to argue the case as that would be unfair methinks. I will keep you updated. Thanks again - really do appreciate your assistance.

[pampampam]

Re: Small Claims County Court process: General Form of Judgment or Order

Sorry - just have another quick question.
All parties have to send in witness statements [and of their witness] 14 days in advance.
The claimant already filed a witness statement some months ago and then again when the claim form was issued.
I sent in a 'defence'
So presumably all I need to do now is write my own witness statement and reference the earlier defence document [or copy and paste it in where relevant?] but is it possible for the claimant to also submit a further witness statement?

Thanks to anyone who can assist - displacement activity welcome as I plough through my witness statement - such fun.

[R0b]

Re: Small Claims County Court process: General Form of Judgment or Order

Sorry - just have another quick question.
All parties have to send in witness statements [and of their witness] 14 days in advance.
The claimant already filed a witness statement some months ago and then again when the claim form was issued.
I sent in a 'defence'
So presumably all I need to do now is write my own witness statement and reference the earlier defence document [or copy and paste it in where relevant?] but is it possible for the claimant to also submit a further witness statement?

Thanks to anyone who can assist - displacement activity welcome as I plough through my witness statement - such fun.

The witness statement must be in a particular format and is essentilly a factual account of the case - so it is different to a defence but I don't know how you have set your defence out.

This link gives you a short example of how to set out a Witness Statement -> https://www.justice.gov.uk/courts/pr...ess-statements

[pampampam]

Re: Small Claims County Court process: General Form of Judgment or Order

Thanks Rob, that's the format I've used. What I've done is set out my case in chronological order and then made reference to the claimant's witness statement and highlighted the paragraphs where I dispute what has been stated and also highlighted the paragraphs in the claimant's statement of claim document again where I dispute. This has made my witness statement rather long.

All the other examples of case studies I've looked at the defence and witness statements have been much more concise, usually to do with the facts of the case say in a consumer versus supplier of goods and/or services case - whereas our case is more convoluted given the neighbour's original statement of claim which contained a number of inaccuracies. The claimant's paperwork is also very long.....so although I have tried to be concise, I have had to respond to all the untruths in their account! All very over the top for a small claims court I would have thought which is why they sought to make it more complicated than it actually is and shove in lots of paperwork to support their proposal to switch to Fast Track which the Judge saw through and kept in SC track. Phew. Thanks again.

- - - Updated - - -

Oh and thank you for your early offer for me to post up my witness statement but as it's very long I don't think I should. It's all very petty and I can't believe we've come to this position - hopefully it will be all over soon, one way or the other.

[R0b]

Re: Small Claims County Court process: General Form of Judgment or Order

well if you want me to take a look and comment then I am happy to do so - a Witness Statement should not be too long and should only detail the key facts and timelines of a case. If the claimant has put in untruths in their WS then its not something you address in your WS you address it in court. In all honesty the case isn't complex at all, its a simple case of whether there has been a trespass, and if so are there any mitigating/aggrevating factors or anything else the court needs to consider!

[CLL1]

Re: Small Claims County Court process: General Form of Judgment or Order

This is covered in the Civil Procedure Rules.

Really, an order ought to include a date and time (CPR 2.9(1)(a)&(b) but in practice, but t rarely does.

COR 2.8(2) means days = clear days. So a deadline of 15th Feb being hearing date, last time and date to file is 4:00pm today.

[pampampam]

Re: Small Claims County Court process: General Form of Judgment or Order

Sorry tried to post in the middle of the thread without success to follow on from Rob's helpful summary - which is at the bottom of page 1.

I have an update and thought this was the most appropriate place in the thread to post as it includes Rob your very useful summary.
So the case was postponed and has been re-scheduled for next month.
In the meantime the claimant's son [named on the papers/listed as a witness] launched an unprovoked assault on my son [who has nothing to do with the case] when he was using the right of way. I went out due to all the commotion and the son towered over me and screamed obscenities in my face. The police were called and statements taken and he was arrested and taken to the local PS and interviewed under caution. Despite this including the police officers seeing evidence of [albeit slight] injuries to my son's hands [who was remarkably mature and didn't react to the provocation] the police decided No Further Action on the basis of no independent witnesses. Regarding the verbal assault on me - the chap admitted using foul language - hence he was served with a first instance non harassment notice - but that's it.
I intend to raise this at the court hearing as evidence but wonder if I should also submit it as late / updated evidence?
There was quite a gap - 4 months between the original court date and the new one - so is it usual for either side to provide an update? Is there a set protocol?

many thanks for any assistance.