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PLEASE IGNORE - I POSTED THIS IN THE WRONG PLACE - HAVE REPOSTED IN 'COURT CLAIM' THREAD INSTEAD. PLEASE COULD ADMINISTRATION DELETE THIS POST THANK YOU.
Update on the County Court Case Small Claims Track – re: scheduled to next month
Tried to post on original thread but not sure if this worked, so here’s a new post asking for information on how to alert the court to an assault by claimant.
Case postponed and re-scheduled for next month.
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 [alleyway between two properties].
I heard commotion/went out/saw my son’s injuries and asked what was going on and the claimant’s son towered over me and screamed obscenities in my face.
I called the police; statements taken. Claimant’s son later arrested [he disappeared on evening of assault] and taken to the local police station and interviewed under caution.
Despite this and attending 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. The claimant’s son stated he thought my son [considerably shorter and lighter] was going to assault him [but didn't elaborate as to why he thought that!] and admits injuring him but said he did so in trying to get away!! On what basis he thought my son [who has had nothing to do with the case] was going to attack him nobody knows as seemingly the police didn’t pursue this line of questioning.
Regarding the verbal assault on me - the chap also admitted using offensive language and 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 - 5 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 and below is helpful summary from R0b VIP member.
R0b’s summary of case from Jan 2016
Update on the County Court Case Small Claims Track – re: scheduled to next month
Tried to post on original thread but not sure if this worked, so here’s a new post asking for information on how to alert the court to an assault by claimant.
Case postponed and re-scheduled for next month.
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 [alleyway between two properties].
I heard commotion/went out/saw my son’s injuries and asked what was going on and the claimant’s son towered over me and screamed obscenities in my face.
I called the police; statements taken. Claimant’s son later arrested [he disappeared on evening of assault] and taken to the local police station and interviewed under caution.
Despite this and attending 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. The claimant’s son stated he thought my son [considerably shorter and lighter] was going to assault him [but didn't elaborate as to why he thought that!] and admits injuring him but said he did so in trying to get away!! On what basis he thought my son [who has had nothing to do with the case] was going to attack him nobody knows as seemingly the police didn’t pursue this line of questioning.
Regarding the verbal assault on me - the chap also admitted using offensive language and 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 - 5 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 and below is helpful summary from R0b VIP member.
R0b’s summary of case from Jan 2016
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
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
