Amended Particulars of Claim

[horleyox]

Ok, I've been through CPR 16 point-by-point and compared it along with the original court order direction on a paragraph-by-paragraph basis with my further amended PoC. It comes up lacking. I also remain a bit confused.

16.2 addresses contents of the claim form. In this instance, this took the form of the MCOL online form limited to little more than 1,000 characters for 1a (paras 1,2 in FAPoC draft), 1b (para 41 and needs to be more prominent) and 1c (para 40) that I took together formed the PoC, particularly given the number of LBAs and PAPLs previously sent to the parties on the matter.

16.3 addresses statement of value. Only 2a (para 40) and 2b (Y to recovering <£10k) appear to need a response.

16.4 addresses contents of the PoC: 1a (paras 5-26), 1b-1d N/A, 1e (only PD5A), Part 22 (Y to SoT). However, in response to 1a, I have wedged in to the relevant facts extracts from other documents previously filed with the court: Claimant's Response to the Defence of the Defendants (now understand it should have been entitled Reply to Defence, but at least I included a signed SoT), Response to Request for Further Information pursuant to CPR Part 18 (made by the defendants solicitor before the claim was allocated) and Response to Defendants' Solicitors' Letter on .... (trying to address what they stated was unsatisfactory about my response to the Part 18 request, issued on the same day the case was transferred to the local county court)

16.5 addresses contents of defence and therefore N/A; same for 16.6. 16.7 Reply to defence: I have already filed as described above.

Adding in the original court order direction on the reply expected (in addition to CPR 16): a) legal basis for the claim (paras 27-29 under heading Legal Framework), b) breach of duty (paras 30-31 under heading of Breaches of Statutory Duty; not sure about including 32-34), c) damages sustained as result of breach (para 39), d) cost to remedy/value of damages (para 40) both currently dealt with under heading of Damages and Costs, SoT (Y).

In addition, as per R0b's advice, I had added entries for Nuisance (paras 35-38), the Parties (paras 3-4)

My conclusion:

1. Need more emphasis/ change in order on remedy sought
2. Need much less content in Relevant Facts
3. Any other matters set out in PD that have been omitted (apart from PD5A)?

Any comments or opinions would be much appreciated.

horleyox

[horleyox]

Thanks PT,

I take your point. This began as an MCOL claim. Defended in full and DQ resulted in allocation to Small Claims Track. I was under the impression at this time that all I was liable for was the £410 MCOL fee. I read lots online that Small Claims Track should not require legal representation and that if represented, these costs would not be likely to be recovered. Now I understand that there is an additional £330 fee for the hearing and if the DJ strikes out my claim before it even reaches a hearing (the defendants best outcome) then I could be liable for their legal costs in their entirety. I have no doubt these will have been ramped up to tens of thousands of pounds by the firm in question. At an earlier PAD hearing, which I lost just because the firm and defendants both falsely stated they had not received sealed and dated copies of the hearing approval and date from the court. Solicitors tried to charge the equivalent of £1 per minute for 30 minute telephone hearing and got away with me being landed with paying half that.

My current claim is for £6k, of which £3k is for solicitors costs previously incurred and not therefore for damage caused. So very slim margins indeed.

I have approached individuals at two law firms this week to help with the PoC. Both say they are just too busy at the moment. Both would be charging around £225-250/hour to review copy correspondence and a 12-page draft PoC. I would guess a minimum of another £3k even if I could persuade them to get on board.

This dispute with my neighbours from hell has dragged on for so long now it's no longer about recovering my true costs (£16k) or even achieving a remedy. It's about sticking to my principles and holding them to account; not letting habitually dishonest people who fail to accept any responsibility for anything ever (the defendants) or the underhand tactics and an utter lack of integrity (their litigator) win or benefit financially.

horleyox

[pt2537]

If it doesn't, resorting to engaging a solicitor isn't a realistic economic option unless his/her fees can be recovered, given the amount being claimed

A word of caution here. Small claims or not, costs are in play, you lose you are likely to get a costs order against you, the courts order confirms costs are a live issue and are reserved. There appears to have been an application to strike out also, if the other side is represented you could easily be looking at wasted costs over £5k now if there has been an application to strike out, so can you afford not to instruct someone?

I think back to a small claims case t hat was for £3k, the consumer lost and ended up with a £30k costs order against them.

[horleyox]

Morning R0b,

Just wanted to point out that I have forgotten to make reference to the requirements of CPR Part 16 when drafting my response.

I shall do that now.

horleyox

[R0b]

I suggest you focus on getting the detail of your POC right, but if you want to ignore that and complicate things by covering the Part 18 questions as well which is not required by the court order, then it's your claim so ultimately it is your choice. You only have yourself to blame if your claim is struck out.

Part 18 questions do not apply to cases allocated to the small claims track, so whether it is a compliant response or not is irrelevant. The defendant's solicitor's have refused to comply with CPR 31.14 on the basis that the claim is likely going to be allocated to small claims track and CPR 31.14 doesn't apply to small claims. Kind of double standards how they expect you to comply with part of the CPR not applicable to small claims yet they aren't prepared to do the same themselves and that's something you can argue in court against a strike out.

If you haven't got a copy of the application, call the court and get a copy as you're entitled to it subject to a small fee of £10.

[horleyox]

R0b,

I haven't seen a copy of the strike out application (but have asked for a copy by way of service) but was aware from June onwards that the basis for making such an application was going to be a) not producing Amended PoC and b) the unsatisfactory response to the part 18 request. The latest court order gives them until 28 Sep to pursue these proceedings if my further amended PoC proves to be acceptable.

I have therefore tried to cover the part 18 issues in the latest PoC, as you will see.

horleyox

[R0b]

I don't see why this is relevant right now, the court order has considered the strike out application (in the most recent order) and you have until the end of August to file an amended particulars of claim otherwise your claim is struck out.

Am I missing something?

[horleyox]

R0b,

Hello R0b,

There is one other issue. The Defendants' litigator made a request for further information pursuant to CPR part 18. I obliged with what I considered to be a compliant response. He has since written to say the response to this request was not satisfactory and this would be part of his application to strike out my claim with costs. He won't state what is unsatisfactory about the response. I have uploaded a redacted copy of the request, my response and the subsequent response received from him and my further response.

Please can you take a look and see if you can spot what he deems unsatisfactory about my response(s)?

Thanks

horleyox

[horleyox]

Hello R0b,

My redacted draft is attached. Runs to 13 pages at present. Please feel free to criticise (and improve).

Thanks

horleyox

[R0b]

Not suggesting you need to start from scratch and it would make sense for you to use your amended POC as a starting point and fill in the gaps.

Whatever you use, it needs to be tailored specifically to the defendant. So if you were using my suggested headings, you might want to start with something like the following under the Breach of Statutory Duty heading:

The Defendant is and was at all material times under a statutory duty to ensure that any discharge must be directly connected to a drain, downpipe or the main sewer in accordance with Part H of the Building Regulations 2010.

The Defendant's failure to comply with this part of the Building Regulations 2010 constituted a breach of statutory duty, the result of which has given rise to the damage [and loss] suffered by the Claimant as described in paragraph XX and the statutory duty was the kind of harm intended to protect other property owners.

The same applies to the nuisance breach but I think you will need to describe how the nuisance has affected you or prevented you from enjoying your land i.e. the excess water flowing onto your land has caused your garden or parts of your property to be waterlogged such that you have been unable to enjoy or make use of that area of land until it dried or spent time and money rectifying the problem.

Does that make sense?

All I can say is just write what you think, and post up what you've done and to re-iterate, you do not need to include every detail or conversation around the relevant facts, only the key details. It is fine to say that both parties engaged in protracted communications from X date and year to Y date and year, if those comms are not significant.

[horleyox]

Thanks again R0b,

I had already made a stab at beefing up my amended PoC, but it was clear by adding a chronology, it would run to hundreds of pages.

If possible, I would like to still use the contents of my amended PoC as the basis, add to it and make it compliant for consistency's sake. Do you think that is sensible, rather than starting over?

Also, instead of just breach of duty in relation to Building Regs, I am minded to add the following to beef up the legal basis for my claim (sourced from UK Environmental Law Association):

The defendants are in breach of the law (common law) stating that you must use your property or land in a way that does not increase the risk of flooding or water discharging to a neighbouring property. If you carry out acts on your property that results in flooding or water discharging on to there people's property, you face a civil action.

In the knowledge that their property discharges water on to another property, the Defendants have an obligation to other property owners to remedy or maintain defences. If a failure to remedy or maintain these defences leads to drainage of water on to or damage to another property, you face a claim in nuisance (or negligence).

Any further thoughts?

Thanks again

horleyox

[R0b]

There is no hard and fast rule about how you set out your particulars of claim and I know what I've said differs from the court order but the judge is trying to get you to comply with CPR 16 and giving guidance on what they expect you to include. You need to provide sufficient detail in your POC for the court and the defendants to understand the case against them and how you structure that is generally up to you.

Breach of statutory duty and nuisance are a tort, so the ingredients for a tort are: duty of care, breach of that duty, the breach caused injury or loss and damages suffered or incurred as a result. In addition to providing a concise statement of facts and the remedy you are seeking (presumably damages), you need to formulate your claim for breach of statutory duty and nuisance around these ingredients.

You don't need to provide a chronology, that is one way of doing it and certainly you don't need to include every little detail, only the key facts surrounding the dispute. If the facts are not relevant to your claim, leave them out.

Just to be clear, your POC doesn't need to be running into 10, 20 or 30+ pages and if it does get into that higher bracket then perhaps you might be putting in too much detail. I reckon once you have complied with PD5A and even if you use 1.5 line spacing, based on your existing amended POC, they might only run closer to the 10 page mark, which is reasonable.

Feel free to post up your draft for comment

[horleyox]

I agree with PT and you should consider elisting the help of a solicitor to help you draft and formulate your claim.
However, if that is something you don't want to do then you really need to tidy up the particulars of claim and set it out properly as there are key missing ingredients. I cannot comment on the merits or success of your claim but if I was in your position I would consider the following points:

1. Read PD5A of the CPR (see below).



2. Use headings to separate each section you need to address, for example see below.

- Summary of claim. Not always necessary but it does allow you to give a snapshot to the defendant and the court what your claim is about.

- The Parties. This is self explanatory and give an introduction of who each party to the claim is. Given that your claim relates to property damage, it would also be helpful to explain where each party resides and their addresses. For example:



- Relevant facts. This is where you need to describe the facts of the issues leading up to the claim, including any material facts about the nuisance, what you have done to resolve the nuisance (if any) and the defendant's response (if any).

- Legal Framework. This section is optional but it is helpful to include if you are relying on any statutory provisions, which I believe in your case are relying on the building regulations. May be worthwhile setting out here the specific provisions you are relying on.

- Breach of Statutory Duty. This is where you set out how or why the defendants are in breach of statutory duty with reference to the statutory provisions.

- Nuisance. As above, explain why or how the defendant's have caused a nuisance.

- Loss and damage. Explain the loss and damage suffered or caused by the defendant's negligence/nuisance. In terms of remedies you may want to think about whether your property has been de-valued as a result, or the cost of repair or some other remedy you think appropriate.

The court's order about a statement of truth is also out of date. You need to use the following statement of truth.

I believe that the facts stated in these Particulars of Claim are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Thanks R0b,

What you outline is somewhat different from the DJ's original guidance in the first court order requiring amended PoC, Efpom's help with this matter and this I have since trawled for online:

How do I prepare a particulars claim?
Content of particulars of claim

1. each statement put into paragraph.
2. use chronology of your dispute.
3. give explanation of relationaship between claimant and defendant, for example, agreement, contract etc.
4. explain what legislation is involved and why.
5. state that you rely on the provision of this legislation.

https://guide2law.com › drafting-particulars-claim

I cannot feasibly use a chronology as the matter has been on-going for 4 years so there is just too much to include.

I'll have a bash at drafting something that conforms with PD5A and your framework and see how it holds together. If it doesn't, resorting to engaging a solicitor isn't a realistic economic option unless his/her fees can be recovered, given the amount being claimed

Thanks again.

horleyox

[R0b]

I agree with PT and you should consider elisting the help of a solicitor to help you draft and formulate your claim.
However, if that is something you don't want to do then you really need to tidy up the particulars of claim and set it out properly as there are key missing ingredients. I cannot comment on the merits or success of your claim but if I was in your position I would consider the following points:

1. Read PD5A of the CPR (see below).

Every document prepared by a party for filing or use at the Court must –
(1) Unless the nature of the document renders it impracticable, be on A4 paper of durable quality having a margin, not less than 3.5 centimetres wide,
(2) be fully legible and should normally be typed,
(3) where possible be bound securely in a manner which would not hamper filing or otherwise each page should be endorsed with the case number,
(4) have the pages numbered consecutively,
(5) be divided into numbered paragraphs,
(6) have all numbers, including dates, expressed as figures, and
(7) give in the margin the reference of every document mentioned that has already been filed.

2. Use headings to separate each section you need to address, for example see below.

- Summary of claim. Not always necessary but it does allow you to give a snapshot to the defendant and the court what your claim is about.

- The Parties. This is self explanatory and give an introduction of who each party to the claim is. Given that your claim relates to property damage, it would also be helpful to explain where each party resides and their addresses. For example:

1. The Claimants are the owners of the residential property [insert address] with the Land Registry title number XYZ.

2. The Defendants are neighbours adjacent to the Claimants who reside at [insert address] OR The Defendants are neighbours adjacent to the Claimants who are owners of the property [insert address] with the Land Registry title number XYZ.

- Relevant facts. This is where you need to describe the facts of the issues leading up to the claim, including any material facts about the nuisance, what you have done to resolve the nuisance (if any) and the defendant's response (if any).

- Legal Framework. This section is optional but it is helpful to include if you are relying on any statutory provisions, which I believe in your case are relying on the building regulations. May be worthwhile setting out here the specific provisions you are relying on.

- Breach of Statutory Duty. This is where you set out how or why the defendants are in breach of statutory duty with reference to the statutory provisions.

- Nuisance. As above, explain why or how the defendant's have caused a nuisance.

- Loss and damage. Explain the loss and damage suffered or caused by the defendant's negligence/nuisance. In terms of remedies you may want to think about whether your property has been de-valued as a result, or the cost of repair or some other remedy you think appropriate.

The court's order about a statement of truth is also out of date. You need to use the following statement of truth.

I believe that the facts stated in these Particulars of Claim are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

[pt2537]

...and stand to lose money if the Defendants' legal costs are granted by the court, rather than recover my costs as a result of the valid claim!

horleyox

Okay

1) You are in real difficulty if you dont sort this claim out.
2 it is an abuse of the court process to try and shoe horn your case into small claims
3 in any event small claims doesnt protect you on costs so you may as well sue for the whole bloody lot anyway.
4 my advice would be get a solicitor on board - i dont deal with this type of claim but i think you would benefit from some legal advice.