Amended Particulars of Claim

[R0b]

Sorry I didn't see that post.

Do you have a word version we can use as it is easier to add comments than type them all out in a long list on here

[horleyox]

Sorry R0b,
in order to redact, I have to scan each page as an image file, redact with Fireworks, copy to a Word document and then when complete convert to a PDF. Pretty laborious.

I could send the unredacted Word document to your LB private mail box provided you agree not to circulate or post.

horleyox

[R0b]

It would be easier to just remove them in the word document or put XXXX in replacement of personal info. Anyway, I managed to convert to word so I've just marked up my comments on the attached document.

In short, I still think there's a fair bit of work to do and if you leave it as it stands, there's no guarantee it will pass (personally if I was a judge I would seriously consider striking out). In addition to my comments in the document I'll add a few more here:

- Quite a few of your paragraphs don't read as full sentences and look paraphrased. Get them into full sentences.

- Paras 35-38 need a complete overhaul in my eyes. I'll give you a starting point below but you will have to decide how much info you put in.

"As already described above, the discharge of rain and surface water has affected the Claimant's property which the Claimant considers to be a nuisance. The impact of the nuisance has caused [annoyance, discomfort, distress and anxiety] because:[List reasons why the discharge has caused a nuisance e.g. loss of use of land, remedial action had to be taken whether permanently or temporary. Also think about whether the nuisance has prevent you form enjoying your garden/land during summer months, doing your gardening or whatever]."

- I still think the relevant facts look like a bit of a mish mash because you talk about the background, jump into points around mediation and attempts to resolve then back to surveyor's comments. Even though I mentioned breaking down into headings which is a good starting point, it might be further helpful to break the relevant facts into sub-headings so it's clear what it is you are talking about rather than jumping back and forth and to distinguish you have the sub-headings underlined (see below).

The Properties
It might be helpful to give a description of the properties. Are they flats, terraced houses, semi detached etc. How is the draingae currently set up, I think you briefly mentioned it but can you expand and be more clear?

The drainpipe and discharge of rain and surface water
This is where you describe the actual problem, how you mentioned it to the neighbour and what their initial response was.

Surveyor's reports
Here you can describe all of the reports and surveys carried out

Attempts to mediate and remedy the issue
Self explanatory. All the points you made about failed mediation, defendant's attempts to fix (but failed to resolve) the problem can go in here.


Clearly this dispute has history and drafting your POC is not as straight forward as a simple breach of contract for buying/selling goods. You need to make sure there's sufficient detail the clarity is there so that the reader can follow what you're saying. Like I said before, it is entirely up to you how you want to structure your POC or determine how much time you spend but the risk is an adverse costs order against you. So if I were in your shoes, I would not want to give the other side any opportunity to argue your POC are poor, don't make sense, lack the necessary detail etc.

I'm afraid I don't have the time to re-do all of your work (I like to enjoy my weekends!) as I reckon it's a good full day's work if not two. Maybe once it's tidied up I can suggest some language but you definitely need to get the structure right first.

[horleyox]

Thanks R0b,

That's disappointing. I'll give it another go over the weekend and let you know how I get on.

One question - are the paragraphs you highlighted and gave new paragraph references those you would recommend keeping and ditch the rest?

Enjoy the rest of your weekend.

horleyox

[R0b]

You need to treat your claim like you're telling a story. The courts will not accept bare allegations or statements without explanations.

I didn't comment on everything because it would have taken forever and a day so I only commented on what I thought at the time was worth changing to see what it looks like after that. I would suggest you consider amending the paragraphs I commented on, keep the rest for now and then we can see how it flows. IF you ditch the ones I didn't comment on then you're just back to square one with a mish mash of paragraphs and gaps missing.

[horleyox]

Spent 8 hours on it yesterday and today and have finally realised that the key section is what I have suffered constitutes private nuisance.

horleyox

[horleyox]

R0b,

I've now been through all your comments. Thanks for the detail. You clearly had to put a lot of time and effort into it. Much appreciated.

I'm out of my depth on two key aspects:

1. Legal Framework: CO1 stated I needed to include a) the legal basis for the claim as well as b) details of any alleged breaches of duty. The reference to a law (common law) and related obligation in this section came from the UK Environmental Law Association but I have no references for these laws

2. Nuisance: I read that characteristic examples of cases of this kind are those concerned with noise, vibrations, noxious smells, pollution, smoke, excessive light, etc - not physical damage.

I made a long list, but not sure which would constitute harassment rather than nuisance:

a. As described above, the discharge of rain and surface water has affected the Claimant's property and personal life which the Claimant considers to be nuisance.

b. The nature of the Defendants interference has been negligent and intentional; the extent of their interference has been persistent and substantial; and the Defendants' conduct has been unreasonable throughout the duration of the dispute.

c. The impact of the nuisance has caused annoyance, distress, anxiety and considerable expense, in terms of the Claimant's time, money and efforts to maintain his home to a high standard because of:

o Impact on and interference with the enjoyment of his home and its amenities (garden, balcony, patio terrace);

o Physical damage and premature deterioration of his property resulting from flooding and water damage;

o Assault, threats of violence and acts of violence by the First Defendant; general abusive behave of both Defendants;

o Incitement of another to threaten violence against the Claimant, resulting in alarm and distress for the Claimant, the Claimant then being unwilling to answer his front door, fearful of going outside in case of being assaulted and harm to his health (e.g. inability to sleep) for a period of 8 months until the person in question was investigated by the police, charged and sentenced;

o Frequent encroachment on the Claimant's part of the first floor flat roof where events take place and consequential damage to plants and property;

o The temporary preventative measures that have had to be put in place by the Claimant at his expense(up stand) and repeatedly repaired because of the actions and defiance of the Defendants;

o Constant lying, bad-mouthing, poisonous gossiping and attempts to intimidate by the Defendants

e.g. Pledge to "Play mind games. Make him go mad. Get rid of him."

Staring/scowling, name-calling, denying the Claimant's privacy

Making false accusations and derogatory remarks to neighbours resulting in being ostracised and socially excluded

Verbal and physical abuse: 'git', 'scumbag', 'monster', 'liar', 'screw loose'

Being called a narcissist
Being accused of coming from a broken home
Being told to 'f*** off' without provocation while watering the plants on my balcony

o Responsible for house buyer aborting purchase of the Claimant's property as a result of both giving a different account of events relating to the first floor flat roof/water discharging issue and making disparaging remarks to the buyer about the Claimant. The buyer arranged a discussion with my neighbours after his privacy concerns were raised when he spotted the Second Defendant lurking and listening to his conversation without saying a word while he was viewing the Claimant's property with his partner and estate agent.

o The Defendants' actions and behaviour towards the Claimant since the dispute began have resulted in the police recording their crimes and incidents of anti-social behaviour, harassment, incitement of a Section 4(a) Public Order offence, common assault (First Defendant), ABH (Second Defendant).

I shall therefore try and engage the services of a qualified solicitor this week to act on my behalf. Anyone interested on here or able to refer me to someone they would recommend for this sort of case who has time available?

horleyox

[R0b]

Private nuisance is what we call a tort against the land, in that it encompasses both physical and non-physical damage and it is wide in its scope as to what kind of claim you can make. I suspect your nuisance claim would fall into the Rylands v Fletcher nuisance which was a case where certain gases escaped onto the Claimant's land. In a nutshell your argument is that the defendants have allowed rain and surface water to escape onto your land which is a nuisance in itself but the result has also caused physical damage for which you want to be compensate for.

The list you've given probably describes a mix of harassment and nuisance but that also depends on the frequency of that amongst other factors and that would need to be proven at the hearing.

As for the legal framework, any law that calls itself regulations are secondary/child legislation i.e. they sit underneath the primary/parent legislation. Primary legislation will have somewhere in it the ability for certain government ministers or departments to make regulations or sub-rules. My comment in the document refers to section 1 of the Building Act 1984 which is the primary legislation and allows the Secretary of State to make certain regulations, known as building regulations. Thus, the Building Regulations 2010 were introduced.

Section 6 of the BA also says that the SoS may approve certain documents that gives guidance on the Building Regs, and that document you referred to in your amended POC was an approved document (Part H) from here Approved Documents - GOV.UK (www.gov.uk).

Essentially that's what you're inserting into the legal framework section and then if you're referring to something specific in the Part H approved document, then you can also include it in there. The section is just a strict factual section of your POC that allows the defendants/judge understand what the relevant law is. Every judge will have a background for a specific subject area of law so you cannot expect them to know the law you are relying on. It might sound silly but you almost have to treat the judge as a child who knows nothing.

It would definitely be sensible to look at getting a solicitor to assist but you are cutting it fine with a week to go. Most lawyers are busy at the moment and even if they are free, it's possible you will get charged a premium because you asking them to turn around something that has extensive history within a week.

If you're still struggling by the end of the week I will see what I can add to your POC but you will need to do most of the legwork and perhaps follow some of my suggestions.

[horleyox]

Hello R0b,

Thanks for the clarification. Much more positive than I thought.

I suppose the nub of it all is:

A. On the basis of the information/story supplied, your responses and in your opinion, do you think I have a valid claim for nuisance?

B. If so, care to put an estimate on the probability of success?

C. Am I (or you) citing the correct legal basis?

D. Have I correctly identified the breach(es) of duty?

I appreciate that, given the very specific requirements of the order, this is far from a straight forward case.

I suppose I should also therefore ask what I would be setting myself up for - not least in terms of the defendants legal costs - if I was to withdraw my claim at this stage?

horleyox

[R0b]

I think based on what I've read, there are grounds to argue that there has been a nuisance caused by your neighbour but I can't predict your chance of success as these types of claims are not always one and the same and need to be assessed on their individual merits. It ultimately comes down to which evidence the judge prefers on the day.

I honestly don't know if you have grounds for statutory breach of duty as I'm not a construction lawyer but it makes sense that if you do not comply with the Building Regulations which are intended to protect owners and those around you, which results in damage then you should be compensated. However there may be something already decided such that you can't claim a breach of duty under Building Regulations, I don't know. However, you will no doubt be aware once the revised defence is filed because they will state that you have no right to bring a claim.

As for nuisance, there are two types:

1. Private nuisance. I already mentioned that this is where something is done by a person or business that causes an interference to your land. There's 3 elements to it:

a. There has been an interference with your land. The interference must be considered substantial and not trivial. There seems to be some case law that suggest flooding has been regarded as a nuisance.

b. Whether the nuisance was as a result of the person being deliberate, reckless or negligent.

c. The reasonableness of that person's conduct. This one can be difficult to decide and why it is important to decide each case on their own facts. A court will have to decide the knowledge at the time, whether something was done to remedy the nuisance, or if not, why not. Were there any of the steps taken to mitigate the problem despite the problem persisting. Conduct is based objectively of a reasonable person at the time and a court will not hold the person responsible for mere annoyance.

This is where you need to have your evidence and prove that it is more of an annoyance but a real and substantial interference. The survey's will help to assist in that, particularly if you have had 3 independent people come out and give relatively the same opinion.

2. The Rylands v Fletcher rule. I mentioned before is a strict liability offence and so long as the criteria is satisfied, then the person will be liable irrespective. This is a narrow approach and is more related to exceptional cases, but it might be worth arguing here if you so wish.

a. Was the interference a normal natural use of the land or is there a defence that the person should not be liable e.g. act of god, supply of water or gas etc.

b. was the interference foreseeable that it would cause interference or damage to the land? If you've shared the reports with your neighbour you could argue there was foreseeability.

c. The interference must have escaped from that person's land.

d. Whether the damage is considered too remote to hold the person responsible.

There is no reason why you can't argue private nuisance as your primary claim and then Rylands v Fletcher as the alternative. If you fail on private nuisance you still have a chance of holding them responsible under the strict liability rule. However, what you plead the choice is yours.

Obviously if you decide to withdraw, then you could be on the hook for costs and fairly substantial costs to say the least for wasting everyone's time. however, if you continue this and submit something half decent, it would be difficult for your neighbours to argue non-compliance. Asusming the court accepts your new POC then your next argument would be no costs to be awarded or if there is, limited to the cost of preparing the application. There may be mitigating factors too such as if they issued it on a without notice application i.e. the application was made without you being informed.

Rather than run around like a headless chicken trying to do everything at once, you just need to take one step at a time which is to file a decent POC. Alternatively, you withdraw your claim and accept the cost consequences.

[horleyox]

Thanks again R0b.

More useful stuff.

I have just secured 4 hours of time of the head of property litigation at top a Legal500 firm at as you can imagine considerable expense and at a premium on her normal fee rate. She is going to do all that is necessary and submit a compliant PoC that meets the specific requirements of the court order(s). I have asked her to consider including your idea of primary and alternative lines of attack. Thank you for that advice too. I like the idea and hope she does too.

So I can breathe and sleep more easily again I hope! Shall I keep you posted or have you had enough of my amateur LiPing?

horleyox

[R0b]

That's good, at the very least you'll get an assessment on the merits of your claim and whether arguing the strict liability rule is feasible or the breach of statutory duty for building regs.

Might be worth asking her a ballpark figure for damages of this kind, might help you consider whether you amend your claim to increase costs but maybe under the £10,000 mark if you aren't there already.

Would be helpful to us and others if you can let us know how you get on.

[horleyox]

Hello R0b,

I've asked her for opinion on probability of success. More important than receiving additional monies claimed!

Also received copy today of strike out application. Not yet submitted as it turns out but adds dramatically to thinking on their defence. Solicitors have also reported ME to the police for harassment of their clients since 2018.

You couldn't make it up.

horleyox

[horleyox]

Filed Re-Amended PoC by yesterday's deadline with 28 minutes to spare.

A choice with 90 minutes left between 8 pages or 12, given the requirement of CPR 16 for conciseness. I opted for 12 pages as the 'story' couldn't fit or flow in only 8.

Lucky I retained a solicitor to prepare the final draft. Turned out I couldn't claim breach of statutory duty as that is for the council to rectify, not me.

Went for private nuisance, actionable in Tort and duty of care as was established in Leakey Ors v National Trust (1981) QB 485 which determined that an occupier of land owes a general duty of care to a neighbouring occupier in relation to a hazard occurring on their land, whether natural or man-made.

So I have now submitted what is legally considered compliant PoC, with the reservation on conciseness. Plus I have been advised that I will probably not be successful in claiming past or present legal costs, so that is likely to half the amount of my claim.

Had added a sum of £1k for nuisance, but removed from final draft as had not previously been claimed and might need another application. Not worth the bother.

So now it is just about principle, not money, plus avoiding costly strike-out proceedings.

The solicitor's closing remark was "Keep everything crossed (i.e. finger and toes). Litigation ought not to be like that, but it frequently is!"

horleyox

[R0b]

Thanks for the update, good to know you got something in on time - hopefully the judge will accept that the POC are compliant.

Just for the benefit of others who might be in a similar position (and if you have time), would you be willing to share a redacted version of the POC?