Small claims case - defendant seeking case to be struck out

[1990rider]

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.

There are no expert witnesses to be used in this case so I guess it will ultimately come down to the judge. But it would have to be one hell of a coincidence for that part to break because of something unrelated in the context.

[1990rider]

Ok so update from the legal team, they are going to continue defending the claim.

[1990rider]

Update - advice needed

So I've made a claim against my local council for damage to pothole. My case seemed to be pretty solid having collected evidence during the process before I made the claim. I have a court date.

But it's come to my attention that it may be the case that the pothole I am saying hit my vehicle, that the council may no have been aware of it. When reporting it, I looked on the council website to track the defects, and there appeared to be one at the location I had hit, so I , as I'm sure basically anyone would assume, assumed the council knew about it before and made the claim. They rejected it, but not on the grounds they didn't know about it, only it wasn't dangerous. I have evidence to dispute this, they measured it as 70mm when I measured it as 200mm, and i have dashcam footage which would contradict the former measure.

However this new information I came into possession of recently seems to suggest that the defect I hit was actually not the one which was known about before, and now I don't know what to do. As a large part of my case (not all of it, far from it) rests on the assumption the council knew about the pothole for 4 years. I have an inclination that this may actually refer to another pothole, a mere few metres away from the one I hit. I have no way of proving this. The coordinates given for that pothole match the same one as I hit. In their filing of defence, the council claimed there were no dangerous defects before inspection, but their main attack was I had supposedly not proven causation.

So what do I do now? Do I keep my witness statement a more detailed version of the particulars of claim? Do I tear it up, write a new one, claiming I am now not sure of the facts of the case? Do I keep it the same, but add that new information I am now privy to has caused doubt about some parts of the case, information i did not have at the time?

I am worreid about either lying, seen as having lied, or continuing with the case, and the court decides that as there is no fundamental basis to the case, I am now liable for thousands of pounds in legal fees. I fear the same outcome if I withdraw.

Any advice?

[R0b]

If the council defence is not based on the fact they didn't know but instead that the pothole was not as deep as you are claiming, then the court is confined to the issues in the particulars of claim/defence. It would be an ambush for the council to then raise that sort of defence at the hearing without amending their defence.

If you are cross examined and are lie about your response, then you might find yourself in trouble if discovered so it depends on what you want to do. You could put in a lower settlement offer than before to make the claim go away, but that could equally arouse suspicion from the council lawyers, not always though.

You could discontinue the claim if already allocated to the small claims track, but it also means that the council has the opportunity to set aside that discontinuation and seek costs for unreasonable conduct. I think you would be on safe ground based on your discovery if that were the case because the evidence has only just come to your attention.

At the end of the day, I'm not a pothole expert but just because it hasn't been reported doesn't necessarily mean that you have no claim. they would be required to inspect roads on a periodic basis as part of their duty to maintain roads. Of course if there is case law that says you only have a claim if the pothole is reported then thats a different story, but again would be unusual given a council's obligations to maintain roads.

Personally, I would push on and continue as is since there is no obligation under the small claims track that you have to disclose documents that both support your claim and go against it - unless the court has specifically made an order to that effect because that would be unusual as those rules don't apply on small claims track. You are only usually required to disclose documents you are relying on.

[1990rider]

If the council defence is not based on the fact they didn't know but instead that the pothole was not as deep as you are claiming, then the court is confined to the issues in the particulars of claim/defence. It would be an ambush for the council to then raise that sort of defence at the hearing without amending their defence.

If you are cross examined and are lie about your response, then you might find yourself in trouble if discovered so it depends on what you want to do. You could put in a lower settlement offer than before to make the claim go away, but that could equally arouse suspicion from the council lawyers, not always though.

You could discontinue the claim if already allocated to the small claims track, but it also means that the council has the opportunity to set aside that discontinuation and seek costs for unreasonable conduct. I think you would be on safe ground based on your discovery if that were the case because the evidence has only just come to your attention.

At the end of the day, I'm not a pothole expert but just because it hasn't been reported doesn't necessarily mean that you have no claim. they would be required to inspect roads on a periodic basis as part of their duty to maintain roads. Of course if there is case law that says you only have a claim if the pothole is reported then thats a different story, but again would be unusual given a council's obligations to maintain roads.

Personally, I would push on and continue as is since there is no obligation under the small claims track that you have to disclose documents that both support your claim and go against it - unless the court has specifically made an order to that effect because that would be unusual as those rules don't apply on small claims track. You are only usually required to disclose documents you are relying on.

Well, firstly, the first response from the council via their own system was that the pothole wasn't classed as dangerous and explained the depth etc.

The second response via their solicitors was largely that I hadn't proved "causation", and furthermore the council were unaware of any actionable defects at the last inspection. So its one of many things in their particulars of claim, as well as possibly driver error, basically an exhaustive list of possibilities.

The thing is that some of the documents i am relying on to support the fact the council had "adequate time" to repair the pothole and were aware of it may pertain to a different pothole. I've only realised this now having looked at the FOI and seen a better description.

The way I see it it doesn't matter about lower settlement if the council think they don't owe me anything they won't pay anything. Unless a lower settlement is like, i'll drop the claim and you won't take things any further.

Would it be unreasonable conduct to discontinue the claim? As far as i know, there is no requirement to state a reason and it could literally be anything, it doesn't have to be related to the case.


My claim is basically that the pothole was deeper than the council deemed it to be (proven by my own measurements and video footage), however I know because that is nearly indisputable the council will argue it was not dangerous at the last inspection. Indeed, the last inspection before the accident found "no actionable defects". But this does not mean that there were no defects at all, only that they hadn't reached the stage where action would be required. And as I don't believe there is any obligation to record a defect that doesn't require action, there likely isn't a record of this.

I could use the fact that the 140mm deep pothole recorded in 2019, which I assumed was the one i hit based on the dimensions and description, but wasn't recorded in 2022, as evidence that the council did not make consistent recordings of defects etc.

I don't want to pull out, it will be embarassing and also I don't want to risk any costs. It is on the small claims track.

That said I also don't want to face any costs in court.

I'm just concerned because if I now have these doubts about what i put in my particulars of claim, then my witness statement will look different to the particulars of claim.

Unfortunately, I can't prove either way because the council's system for describing and logging potholes is so poor, and there are multiple ones on a single small section of road, it would be difficult to tell.

[R0b]

I'm afraid the decision of whether to discontinue falls to you based on what you have seen or have in your possession to date. Councils these days have tight budgets so they may not want to pursue it all the way to court if it's going to cost them 3 or 4 more times the amount being claimed. That said some councils defend anything no matter what the cost is and how irrational it may be based on the amount being claimed.

Sounds to me you may have doubts but it's not 100 per cent conclusive in which case I think there are reasonable grounds to continue and let the council argue otherwise.

In the context of discontinuing, whether conduct is considered to be unreasonable will be based on the court decision in Ridehalgh v Horsefield and another which the court posed this question: does the conduct permit of a reasonable explanation? If there is no reasonable explanation then you may be found to have acted unreasonably. The court gave further guidance by saying that conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. To be absolutely clear, recovery of legal costs is forbidden in small claims track cases except for a small amount that may be recoverable like up to £90 per witness or thereabouts.

As for your witness statement, you base it on your claim. If you now want to start deviating and adding other things in that weaken your claim then go right ahead you will be eaten alive by the other side. Like I said, you only need to focus on your allegations put to them and the evidence you wish to rely on to support your case, not harm it.

Going back to my point regarding the council being unaware of the pothole, that is not an automatic defeat. The Money Saving Expert website has a good guide on potholes and there's a section explaining what you can potentially argue if the council were unaware if you claim it was not properly maintained. The link to that article is here in case you haven't seen it (the sub-heading titled Rejected (or unable to fast claim)? How to make a full claim for pothole damages): https://www.moneysavingexpert.com/re...ims/#fullclaim

Councils have a habit of throwing the kitchen sink at things and what you describe suggests they may have done in your case which the very idea is intended to put people off thinking they have no claim. All you need to do is poke enough holes in their defence to persuade the judge and it sounds like there may be enough holes here for you to be successful in your claim.

If you still continue and lose, well you lose but trying to hold someone accountable such that they are deemed to have acted unreasonably in small claims cases, is typically very difficult to achieve unless it is obvious. The party that is accused of acting unreasonably is usually award some leeway.

[1990rider]

I'm afraid the decision of whether to discontinue falls to you based on what you have seen or have in your possession to date. Councils these days have tight budgets so they may not want to pursue it all the way to court if it's going to cost them 3 or 4 more times the amount being claimed. That said some councils defend anything no matter what the cost is and how irrational it may be based on the amount being claimed.

Sounds to me you may have doubts but it's not 100 per cent conclusive in which case I think there are reasonable grounds to continue and let the council argue otherwise.

In the context of discontinuing, whether conduct is considered to be unreasonable will be based on the court decision in Ridehalgh v Horsefield and another which the court posed this question: does the conduct permit of a reasonable explanation? If there is no reasonable explanation then you may be found to have acted unreasonably. The court gave further guidance by saying that conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. To be absolutely clear, recovery of legal costs is forbidden in small claims track cases except for a small amount that may be recoverable like up to £90 per witness or thereabouts.

Going back to my point regarding the council being unaware of the pothole, that is not an automatic defeat. The Money Saving Expert website has a good guide on potholes and there's a section explaining what you can potentially argue if the council were unaware if you claim it was not properly maintained. The link to that article is here in case you haven't seen it (the sub-heading titled Rejected (or unable to fast claim)? How to make a full claim for pothole damages): https://www.moneysavingexpert.com/re...ims/#fullclaim

Councils have a habit of throwing the kitchen sink at things and what you describe suggests they may have done in your case which the very idea is intended to put people off thinking they have no claim. All you need to do is poke enough holes in their defence to persuade the judge and it sounds like there may be enough holes here for you to be successful in your claim.

If you still continue and lose, well you lose but trying to hold someone accountable such that they are deemed to have acted unreasonably in small claims cases, is typically very difficult to achieve unless it is obvious. The party that is accused of acting unreasonably is usually award some leeway.

Look, I have no issue with losing. I'll forefit the £50 and I won't get the money back.

My issue is, is that if I make a witness statement now having doubts about what is in there, is that not lying?

So my particulars of claim allege that the council knew about the defect for over 4 years, since march 2019, thus they had an adequate time to repair it.

I also argue that the inspection result cannot be valid as no measurements were taken, the photographs were from a moving vehicle etc etc.

So my question is, is it legitimate for my witness statement to be different to my statement of case/particulars?

Are you sure its max £90? i read here this - https://www.reddit.com/r/LegalAdvice..._claiming_25k/ . Though this was before allocation and struck out.

My fear is the council will argue if i discontinue or if i lose that the case had no real chance of success anyway, etc etc, as they did threaten to have the case struck out.

[R0b]

My issue is, is that if I make a witness statement now having doubts about what is in there, is that not lying?

Knowing that something isn't true with a certain degree of confidence and being unsure as to whether it is or not are two entirely different concepts, so no I would not consider that to be lying or dishonest. If you want to write your witness statement different to your particulars of claim in a certain way and potentially open yourself up to allegations of dishonesty then that is your choice and risk. If you are really having doubts and not sure what to do, then maybe discontinuing now is the better option and see what happens in the aftermath.

Are you sure its max £90? i read here this - https://www.reddit.com/r/LegalAdvice..._claiming_25k/ . Though this was before allocation and struck out.

Very certain, read CPR 27.14 for further information. As that Reddit thread indicates, claims that have yet to be allocated are not usually subject to any particular track rules and therefore costs would normally be in play. However, there is case law and also CPR 46.13(3) that says a court may award costs based on a particular track if it was likely that the claim would have been allocated to that track. In other words, if the claim based on the value and complexity was likely to be allocated to the small claims track, a court may award costs based on that track notwithstanding the fact the claim is yet to be allocated.

My fear is the council will argue if i discontinue or if i lose that the case had no real chance of success anyway, etc etc, as they did threaten to have the case struck out.

Whilst nobody can predict what the other party might do, I genuinely do not think there would be reason to claim unreasonable conduct costs based on what you are describing. The bar is high and I refer you back to the Ridehalgh case in terms of what I mentioned.

[1990rider]

I was pretty confident I was truthful in my particulars but now I am not entirely sure.

I KNOW for certain that the pothole they say I hit (in terms of it's depth) is not the one I hit.

I am fairly certain now that the initial pothole I believed , the one which had existed for four years, was not the one I hit , and had not been reported. But I know that the pothole did exist as I have Google street view to evidence that. I just can't prove that the council knew about it , not for certain, whereas before I could.

[atticus]

I am butting in to say that the question is whether you had an honest belief in the truth of your statement at the time you made it.

[1990rider]

I am butting in to say that the question is whether you had an honest belief in the truth of your statement at the time you made it.

But I haven't sent off my witness statement yet? Even though it is complete

[atticus]

The principle applies to any document signed off with a "statement of truth".

Your witness statement gives you an opportunity, should you wish, to correct earlier inaccuracies.

[1990rider]

Ok, thank you.

Im not going to remove the reference to the potholes reported earlier as I still can't be certain. What I will do is emphasise the point that the council must have known about the defect as Gsv shows it existing as early as August 2018. And that the crux of the case is that it was dangerous, and if the council did not measure it properly, that's negligent, and thus if they can't even measure a hole properly reported AFTER an accident, how can they possibly measure one properly before?

[R0b]

The alternative option would be to inform the other side that in light of further information recently received, you will not be pursuing allegation X but will continue to pursue allegation Y and adjust your witness statement accordingly. You then narrow down the issues and minimise concerns around unreasonable conduct.

[1990rider]

Hmm. It's a tricky one. It's not the main part of my claim but the council will probably argue it is. I doubt they can prove the pothole wasn't dangerous given the overwhelming evidence I have in the forms of videos, pictures and measurements, but they could say well they didn't know about it etc, and if I say I won't pursue this they could say well there is no longer a case to answer for, apply to have it thrown out, etc etc

How far in advance should I send them the statement, I know it's at least 2 weeks before court, j just wonder if there's any benefit in sending it earlier or just leave it til as late as I can , I'm still intending to gather more evidence if I can.