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.

[Vick2024]

Hi, I wondered how you are getting on and if you decided to discontinue? I'm in a very similar situation right now with Council. thank you .

[R0b]

Personally I think you are overthinking this way too much. You have reasonable grounds to bring a claim, and despite your uncovering of further information you still have grounds to pursue the claim or at least part of it. I do not believe you are being vexatious and again I repeat (for the final time) the bar for meeting that criteria or conduct amounting to being unreasonable is high and not easy to achieve. Just because the outcome may be that your claim fails does not automatically equate to you being unreasonable or vexatious. If that were the case, the council would have put you on notice by now that they think your claim is hopeless and nothing more than an attempt to annoy or harass them in return for money.

I simply have nothing further to add on to this thread so I'm going to bow out of this thread because I feel like we are going round in circles and you appear to be nitpicking to the nth degree and several of us have suggested you discontinue if you are feeling uncomfortable or press ahead and give it a shot in court or somehow come to a financial settlement.

I see zero merit in you making the offer as outlined above when you can serve a notice of discontinuance but it's your choice. That letter could be used against you to seek costs for unreasonable conduct if the council so wished to pursue that line of argument.

[1990rider]

That last sentence was for here.
the thing is is that if I bring that up that almosr sounds like I've admitted I've been vexatious etc , even though I haven't been

[Pezza54]

I would shorten the last sentence to say only that you are a student without any income.

You should ask for a reply asap

[1990rider]

You don't need permission from the judge unless there is a court order in place which requires permission from the court to discontinue - see CPR 38.2

I mean if the judge agrees.

Or is it better making it an offer.

I'm thinking of something like this:

"I as the Claimant in the case have always been confident that your client was ultimately responsible for neglect of duties in relation to the highway where my vehicle suffered damage owing to a pothole.

I am aware your client was not willing to mediate previously. However, I have a new offer and I wish for you to consider it.

I am happy to drop the case against your client, and agree to not make any future claims relating to the defect in question, on the condition that my discontinuance of the case does not incur any fees from your client.

My circumstances have changed, and I no longer believe it is in my best interests to bring court action against your client.

If you are happy with this offer, please inform me at the earliest available opportunity, otherwise I will continue to assume I am continuing with my claim.

In summary - my offer.

1) I will discontinue the case, dropping my claim against your client.
2) I agree to make no further claims about the defect which is the subject of this claim, and will be willing to sign a document to this effect."

I am unemployed, so have no income (I'm a student) but I do have savings, so I think that would rule out any chance of me being able to not have to pay fees if they were imposed.

[R0b]

Would an n279 not do the same thing so long as the judge agrees etc

You don't need permission from the judge unless there is a court order in place which requires permission from the court to discontinue - see CPR 38.2

[1990rider]

Would an n279 not do the same thing so long as the judge agrees etc

[Pezza54]

Not worth the stress for £400 Your health is more important
You should speak to the defendant's solicitor and see if you can reach an amicable agreement

[1990rider]

The stress (maybe I shouldn't be stressed but I am) this is causing me makes me think I should just discontinue but I know I have a strong case and can see it through, I'm just terrified either way of getting lumbered with costs.

[Pezza54]

CPR 44.2 states that costs are at the discretion of the Court
CPR 27.2 does not exclude 44.2 from the small claims track

[1990rider]

Yeah exactly my thoughts but what if the court or council then say because my witness statement is different I will have to amend the particulars?

[Pezza54]

Best avoided if you can. You would have to make an application and pay a £275 fee. The defendant may want to amend their Defence and you could end up liable for their legal costs for doing this

[1990rider]

Would I need to change my particulars of case?

[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.