Small claims case - defendant seeking case to be struck out

[R0b]

Thanks for the update and good luck.

Statistically speaking, unless you have exceptional writing and persuasive skills, agreeing to have your case determined on the papers is less favourable than an in-person hearing. It is easier to attend in person because questions that the judge may have can be answered on the spot and resolve any concerns a judge may have regarding your claim. A judge deciding on the papers is only able to look at what you have put on paper and if I were a betting person, the council are likely to have better qualified lawyers to know what they're talking about with the requisite case law to back up and support their defence.

That's not to say you are going to be unsuccessful going down this route, but you are likely to have an uphill struggle. I would never advocate having a claim heard on the papers unless you are physically unable or impossible to attend an in-person hearing.

[1990rider]

Good point, will I get an option closer to the time ? My only intention there was to have it on record that I'm willing to do everything possible to minimise the courts time and money.

Without blowing my own trumpet writing is something I excel at I practically do it for a living so I can come across well there. I have already got a document detailing everything but it's 40 pages long so I suspect I'll need to condense into something smaller or the judge won't bother.

Have tried to get a statement or letter from one of the mechanics but he is not replying to me despite agreeing in principle to do it

[1990rider]

I have dsshcam footage of the incident - how would this be available to the judge to view ? Will the judge/court have a computer to view any digital evidence?

[R0b]

Good point, will I get an option closer to the time ? My only intention there was to have it on record that I'm willing to do everything possible to minimise the courts time and money.

Without blowing my own trumpet writing is something I excel at I practically do it for a living so I can come across well there. I have already got a document detailing everything but it's 40 pages long so I suspect I'll need to condense into something smaller or the judge won't bother.

Have tried to get a statement or letter from one of the mechanics but he is not replying to me despite agreeing in principle to do it

A judge will only decide the claim on the papers if both parties agree to that which is the case here. If you want to alter that position you will need to make an application at your cost of £275 and explain why it should no longer be heard on the papers - that is no easy task and I wouldn't recommend that given the sums involved because if you lost then there could be costs you pay from the other side.

I'm glad you are confident of your writing skills and I don't want to take anything away from that, but there is usually a particular knack to drafting legal arguments which is why it is a specialist matter because you need to be able to understand the legal concepts and principles based on the case law and then apply that to your current dispute.

As for the dashcam footage, the usualy practice is to put it in a particular format on a USB drive and deliver that USB drive to the court so they can review the footage. It has been a while since I looked at the rules on video media but that is the process used to be.

I would suggest you wait until the court gives directions on the next steps but I suspect you will be required to put together a witness statement with your evidence and a judge might ask for a trial bundle to be prepared and agreed between the parties. That duty usually falls on the party who has legal representation or if neither part is represented then the court usually prepares a bundle. If you can't agree the bundle then you should submit your own version so best to do that alongside just in case as it is very time consuming and don't want to be leaving it to the last minute. It would also be sensible to prepare a skeleton argument which is a document containing your legal submissions and references to case law you are relying on to support your case.

We can help guide you through that but you do need to put some time and effort into it and definitely do not think you can do this in a single day and leave it to the last minute. This is a couple weeks of preparation at least.

[MIKE770]

cost cost cost the Plaque of the non UK Justice system

[1990rider]

Thank you, I will make enquiries re the usb when I get the next update

[conrik]

Your last post was sept. How did you get on? Am in similar situation where essex cc refusing to admit an obvious liability but on stock road. Seems they were playing hard ball with you re small claims court, so wondering if it’s even worth my while trying? My damage was £1000 cracked alloy though!

[1990rider]

Ok update for you all, today the court sent me a letter confirming it is on the small claims track and have allocated the 5th june as court hearing. So seems like it was an empty threat.

[Pezza54]

Did you read the detailed article at http://www.moneysavingexpert.com/rec...othole-claims?
Making a claim for pothole damage can be more complex than you think.
For a full claim, which yours is, the article recommends a claimant makes a Freedom of Information request to obtain the council's road repair policy and inspection history. The article tells you how to do this and also how to interpret the info received.
Hopefully you took measurements, or managed to show the position, size and depth of the pothole at the time, with photos or video.
This info should be included in your witness statement which should end with a signed statement of truth.
Make sure you meet the date set by the court to file your witness statement and send a copy to the defendant.

[1990rider]

Did you read the detailed article at http://www.moneysavingexpert.com/rec...othole-claims?
Making a claim for pothole damage can be more complex than you think.
For a full claim, which yours is, the article recommends a claimant makes a Freedom of Information request to obtain the council's road repair policy and inspection history. The article tells you how to do this and also how to interpret the info received.
Hopefully you took measurements, or managed to show the position, size and depth of the pothole at the time, with photos or video.
This info should be included in your witness statement which should end with a signed statement of truth.
Make sure you meet the date set by the court to file your witness statement and send a copy to the defendant.

Yes lol, I have tons of FOI data which is what made me be confident enough to make the claim in the first place. Don't have measurements of the pothole at the time of acciden tbut have measurements (of it actually drained of water) couple months later. The council's measurement of 70mm (which was not actually measured by their own admission), does not correspond with the impact shown in the dashcam video and also would be implausible as when i measured the hole a couple months later it was 200mm, and obviously on the balance of probabilities it is practically impossible for such a massive increase in two months alone. I have dashcam video of me hitting the hole, how will i show the court this etc?

I do have a couple people who i lined up to make witness statements testifying what they know about the hole and their own experiences of hitting it but not sure if they will go through

[1990rider]

Council lawyers responded today raising the potential of making an offer and stopping their continued defence of the claim, i've responded with my offer as requested, which is the total value of the claim, plus the £50 court fee, but minus the interests and not insisting on the council admitting liability.

[Pezza54]

The council have probably realised they are at fault for not repairing the pothole quickly after you reported it had damaged your car's suspension. A 200mm deep pothole may damage a car but it could cause serious injury to a motor cyclist . Once a road surface becomes old and crumbly a shallow pothole can soon turn into a deep one.
If you can settle your claim without going to court you will save yourself time and stress

[1990rider]

Council lawyers responded today raising the potential of making an offer and stopping their continued defence of the claim, i've responded with my offer as requested, which is the total value of the claim, plus the £50 court fee, but minus the interests and not insisting on the council admitting liability.

It's more the fact their inspection was so incompetent/negligent I actually don't believe they measured the hole at all, when I made a FOI request for the data on how the hole was measured, they said they did not have this information, suggesting it was never created because they just guestimated the hole. And moreover it was left for over 4 years without being repaired.

[1990rider]

A query I have though - as it was my off side absorbers damaged and not the near side, and it was the near side of the car that entered the hole...and £185 of the £363 total is for replacement OSF shocks...I feel like the council in any offer or in court would refuse to pay for that and argue that the hole didn't cause that. What should my response be?

I'm thinking that damage might have been done to it as i drove out of the hole, i'm not a mechanic. But surely i could also argue on the balance of probabilities, given the issue arose weeks after hitting a very deep pothole, and the car had been MOTed 2 months to the day of the incident with no faults whatsoever found, that it's almost certain to be from the pothole etc?

[Pezza54]

The first para of your initial thread states that the council maintains you have failed to show causality, which is the relationship between cause and effect.
The first para of your last post emphasises the council's defence regarding insufficient causality.
I am also not a mechanic but I believe the damage caused by the pothole would be to the wheel's suspension that hit the pothole.