Small claims case - defendant seeking case to be struck out

[1990rider]

So I've made a small claim against my local council for pothole damage. They filed their defence earlier this week and said they would invite the court to strike out the case under CPR 3.4 . They're arguing that there is no evidence of "causality" that the pothole caused damage to my vehicle, and that I didn't essentially go into enough detail about the "circumstances" of the accident.

Yesterday I got emailed the n180 small claims form and filled it in sent it off. However I can see on the small claims portal that the council have now "made an application to change the case" by post. Any idea what this could be? If they're seeking to strike out the case, what is the likely course of action, particularly if for some reason the court agrees - what kind of costs could I be looking at. I believe this may be some kind of diversion tactic on the part of the council because they know their defence is very weak.

[des8]

I suspect that the council have applied to the court to amend their defence.

You did send a copy of your N180 to the council as well as the court?

[1990rider]

Yes I have - what would they want to amend in their defence having literally just submitted it?

The n180 was sent to the ccbc and council, but there was a mention of an n149a form. I haven't been sent one of these .

If the council do ask for it to be struck out would I have to pay their defence costs etc? And surely I'd also get the opportunity to amend my statement of claim if it was that problematic for them.

[R0b]

Hi
I've not seen that statement before on the Money Claims Online portal but it sounds about right, that the council have submitted an application of some kind, which may be strike out or summary judgment or something else. The standard practice is for applications to be made on notice e.g. notifying all other parties to the claim and a copy of the claim will be sent to you, but it may be that the council have tried to be sneaky and made a without notice application in which case no copy is sent (this should only be used in exceptional and rare circumstances).

You will need to call the court next week to find out the exact details. Whether or not they have a case to strike out or obtain summary judgment will be depending on how well you drafted your claim. There needs to be enough detail for the council to be able to understand the case against them so it doesn't always need to go into every minute detail.

If they are successful, then you might be liable for their costs and how much depends but for something like this you might expect somewhere between £1,000-£2,000. Striking out a claim is a draconian step and the courts are reluctant to do so without allowing you an opportunity to rectify the mistake. If strike out is not granted then you argue for your costs since they were not successful.

If they apply to amend their defence, then they should pay your costs of having to file an amended defence.

[1990rider]

Even on the smc would I have to pay that? I'm only a student and that would be a huge amount of money .

[1990rider]

Would the court tell me that information etc
this is a huge implication for me if true

[1990rider]

Could I discontinue?

[R0b]

Why would you discontinue if, as you say, the council has a very weak case? You can discontinue but because the claim is yet to be allocated (presumably it it will go to the small claims track) you would still be liable for their costs.

You need to contact the court next week and find out what the update means.

[1990rider]

Hasn't it already provisionally been allocated via the n180s?

How does the strike out process work then, if this application is a strike out one etc.

I'd want to discontinue if I knew I'd be getting the application to say it had been struck off etc.

I just don't want a spiral of costs for a case only worth £400.

[1990rider]

Also - is it proper conduct to call the court and ask them etc

[R0b]

N180 is the form used by the court to propose the case being allocated to the small claims track, but it is not yet allocated at that stage and that is why you have question C1 on the form which asks whether you believe the claim should be allocated to the small claims track and if not, explain why.

Of course it is proper conduct to call the court and question the latest status, you would be foolish not to. I would suggest you find out what the application is for, get a copy of the application from the court and then let us know what it relates to. There's no point explaining the strike out process if the application is not for strike out. If you do want to know the process then I suggest you do some research as there are plenty of legal articles out there that can explain the process much better than me.

[1990rider]

Ok thanks. I've spoken to a friend who is a solicitor, though not in litigation. He tells me he understands there aren't any costs involved in the small claims track unless the claimant/defendant has been found to have abused the process, a fraudulent claim etc etc. He also tells me in regards to causality it is on the balance of probabilities and there is little to no reason for anyone to believe that the defect in question wasn't responsible etc. He's going to ask around and find some more out for me

[R0b]

Your friend is almost correct about costs. Claims which are allocated to the small claims track have limited costs recovery which are set out in CPR 27.14, so things like application fees and capped attendance costs are recoverable. Legal costs are not recoverable unless one party has behaved unreasonably in which case the court can disapply the limited costs rule and award additional costs. The bar is generally a high one to try and claim costs for unreasonable behaviour and most judges are reluctant to agree unless there is substantial evidence to show the conduct or behaviour was unreasonable.

Causation and balance of probabilities are not the same thing. Civil claims are determined on a balance of probabilities, which essentially means you have to persuade the judge that your evidence should be preferred over the council's evidence. Unlike criminal cases which require a burden of proof beyond reasonable doubt, you only need to tip the scales 51% in your favour, so it is not necessary to have concrete, fool-proof evidence to be successful, you just need sufficient evidence and arguments better than the other side.

Causation is the link between the council's responsibility and the damage to your car. In almost all cases, you would apply what is known as a the 'but-for test'. So in your case, the test would be, if the council complied with its duties to maintain the highways it is responsible for, would the damage to your car have occurred. If the damage to your car would have occurred in any event regardless of the council's failure to maintain the highways, then causation would not be established and the council would not be responsible. Of course, even if causation is established, the council may rely on other reasons or arguments why it cannot be liable such authoritative court cases which might dictate how long the council has to fix the pothole depending on the size and how dangerous the pothole is.

[1990rider]

Ok so I called up the court this morning.
basically, up until this point the council have been using "paralegal" services but have now transferred or added their own solicitors into the claim.

[1990rider]

Further update council have completed their n180; they agree it is suitable for the small claims track, and do not intend to call an expert witness, only two witnesses including themselves. They have refused mediation and agree with me that the case could be decided without the need for a hearing