Legal Help Needed (taking LA to court?)
Discussion
anonymous said:
[redacted]
Sorry for being thick here - are you saying that the OP has to take the entire case up with the contractor? If so, why has the council not named the contractor thus far?I'm interested as a friend of mine has a situation of a similar nature that i have advised him to persue - to court if necessary to recover costs for damage to his car caused by an breakdown recovery company who were contracted by his insurers nominated garage to recover his car to their garage to fix an electrical fault (long story!)
zcacogp said:
Expensive Shark, thanks. As a fellow resident of LBTH, I suspect you already know the quality of the staff they employ; regular reminders to breathe are broadcast on the office PA system, I believe. I shall indeed proceed with the case, encouraged by the comments on here.
Swilly, Interesting comments, thanks. Out of interest, what would you suggest I should do? I don't know who the contractors are, and the council has spent the last 4 months failing to suggest I should do anything other than pursue the claim with them - indeed, their response to the moneyclaim would have been an ideal opportunity for them to do so, and again they failed.
You are correct in that I do not have a formal written contract with the council, hence my use of inverted commas. However, I pay council tax, and in turn they are responsible for maintaining the street and the trees within it; this is what I meant by 'contract'. As a part of this, they paid for the planting of the new tree, which was the process in which my car was damaged. I expect them to exercise due care and attention when performing their work, and to ensure that due care and attention is exercised by their contractors when they subcontract work. If I claim from them, they can further claim from their subcontractor, if they so wish (and indeed as a council tax payer, I would encourage them to do so.)
I'm not knocking your point of view, I'm keen to hear what you would suggest. (Your profile says you are a Civil Engineer; you probably know a whole load more about this than I do.)
Oli.
You need to find out who the contractor is, possibly ring up and try to speak to the individual responsible for the works.Swilly, Interesting comments, thanks. Out of interest, what would you suggest I should do? I don't know who the contractors are, and the council has spent the last 4 months failing to suggest I should do anything other than pursue the claim with them - indeed, their response to the moneyclaim would have been an ideal opportunity for them to do so, and again they failed.
You are correct in that I do not have a formal written contract with the council, hence my use of inverted commas. However, I pay council tax, and in turn they are responsible for maintaining the street and the trees within it; this is what I meant by 'contract'. As a part of this, they paid for the planting of the new tree, which was the process in which my car was damaged. I expect them to exercise due care and attention when performing their work, and to ensure that due care and attention is exercised by their contractors when they subcontract work. If I claim from them, they can further claim from their subcontractor, if they so wish (and indeed as a council tax payer, I would encourage them to do so.)
I'm not knocking your point of view, I'm keen to hear what you would suggest. (Your profile says you are a Civil Engineer; you probably know a whole load more about this than I do.)
Oli.
The council have probably sat on it for 4 months because they are s
te. Having ascertained liability is with another, it has probably sat in some secretaries low importance in-tray leading to the response you subsequently received.If they arent liable for anything, then timescales mean nothing to them.
You pay council tax because it is a statutory requirement (i think). They maintain the street because it is a statutory requirement also (i think). These things are not done in exchange one for the other though.
Effectively, by employing a 'competent' contractor (i.e. being able to show the process by which they adjudged them competent) they have met their duty. If that contractor then destroys your house and car and half the street, liability is with the contractor (generally)
anonymous said:
[redacted]
The council cannot delegate their statutory duties i.e. to maintain the street.If they failed to maintain the street and a tree fell on your car as a result, you could sue them. But if their contractor, in the course of maintaining the street, damages your car it is the contractor who is liable.
Swilly,
I see the logic in what you are saying, but I don't see it as being terribly watertight - not helped by comments such as "liability is with the contractor (generally)". I also have to say that my thoughts are that the council is liable, hence my pursuing them - something that has been reinforced by every comment and turn thus far, with the sole exception of yours and jamoors. (Incidentally, while I was disconsolately admiring the scratches on my car on the evening the damage occured, my local councillor happened to walk past, and stopped for a chat. I filled him in on the situation, and his immediate response was to pursue the council as well.)
(Having said this, my nagging fear is that you may be correct and hence I am barking up the wrong tree, due to some legal technicality!)
Oli.
I see the logic in what you are saying, but I don't see it as being terribly watertight - not helped by comments such as "liability is with the contractor (generally)". I also have to say that my thoughts are that the council is liable, hence my pursuing them - something that has been reinforced by every comment and turn thus far, with the sole exception of yours and jamoors. (Incidentally, while I was disconsolately admiring the scratches on my car on the evening the damage occured, my local councillor happened to walk past, and stopped for a chat. I filled him in on the situation, and his immediate response was to pursue the council as well.)
(Having said this, my nagging fear is that you may be correct and hence I am barking up the wrong tree, due to some legal technicality!)
Oli.
I'm not a civil litigator but how about asking the court for summary judgment as, on the basis of what they've filed as a defence, they have no prospect of successfully defending the action? At the very least the court should give them a deadline to file a proper defence or have their current defence struck out.
zcacogp said:
Swilly,
I see the logic in what you are saying, but I don't see it as being terribly watertight - not helped by comments such as "liability is with the contractor (generally)". I also have to say that my thoughts are that the council is liable, hence my pursuing them - something that has been reinforced by every comment and turn thus far, with the sole exception of yours and jamoors. (Incidentally, while I was disconsolately admiring the scratches on my car on the evening the damage occured, my local councillor happened to walk past, and stopped for a chat. I filled him in on the situation, and his immediate response was to pursue the council as well.)
(Having said this, my nagging fear is that you may be correct and hence I am barking up the wrong tree, due to some legal technicality!)
Oli.
Another way to look at this is..... the individual (you) very rarely has the need to pursue a council in matters such as these and consequently is not sure of the legal position.I see the logic in what you are saying, but I don't see it as being terribly watertight - not helped by comments such as "liability is with the contractor (generally)". I also have to say that my thoughts are that the council is liable, hence my pursuing them - something that has been reinforced by every comment and turn thus far, with the sole exception of yours and jamoors. (Incidentally, while I was disconsolately admiring the scratches on my car on the evening the damage occured, my local councillor happened to walk past, and stopped for a chat. I filled him in on the situation, and his immediate response was to pursue the council as well.)
(Having said this, my nagging fear is that you may be correct and hence I am barking up the wrong tree, due to some legal technicality!)
Oli.
A council on the otherhand will be regularly dealing with such matters and will know (generally
) what they are liable for and what they are not.Nevertheless good luck with it.
having myself threatened to issue proceedings against a council they will probably do all they can to wriggle out of it. However you actually have issued proceedings so as said, they will probably stump up.
If you received anything from them before you went legal, I don't know if the enclosures were anything like mine from from Guildford Council.
One little booklet which they send me under cover of a letter basically saying "fluck off", said that (and this is not verbatim as it's from memory but it is 100% accurate) "the council's block insurance policy has a very high excess, so potential litigants should think about first claiming on their own insurance if any is available".
This sent my pi$$ boiler into overdrive - once I read this there was no way I was going to let the bds wriggle out of it.
If you received anything from them before you went legal, I don't know if the enclosures were anything like mine from from Guildford Council.
One little booklet which they send me under cover of a letter basically saying "fluck off", said that (and this is not verbatim as it's from memory but it is 100% accurate) "the council's block insurance policy has a very high excess, so potential litigants should think about first claiming on their own insurance if any is available".
This sent my pi$$ boiler into overdrive - once I read this there was no way I was going to let the b
ds wriggle out of it. UPDATE
Council have written to me today, letter dated 22nd September. Looks like this (some bits chipped out/edited.)
Do I continue as it currently is, and take the council to court? Do I cancel the current case and instead raise a case against Blah Tree Company? Do I start a new case against Blah Tree Company and keep the case against the council running? Should I contact either the council or Blah Tree Company?
I'll await more informed guidance from the PH masses, but my gut instinct is to carry on with the council claim. My letter to them gave them 3 weeks to respond or I would issue against them in court. They didn't respond in this timeframe (in fact, it has taken them almost exactly 5 months to simply tell me who they use to plant trees), therefore I am inclined to continue against them.
All advice welcomed. Thanks.
Oli.
Council have written to me today, letter dated 22nd September. Looks like this (some bits chipped out/edited.)
letter said:
22nd September 2008
Dear Mr zcacogp,
RE: Alleged incident: XYZ Road
Date: 22nd April 2008
I write with reference to your claim concerning the above incident.
My invesitgation has revealed that responsibility for the incident rests with the following Councils Contractor:
[i]Blah Tree Company
Blah Tree Address
Blah Tree Telephone Number[/i]
who was carrying out works to the location at that time.
The claim was referred to the contractor on 19 September 2008, and they have been requested to either forward the claim to their own Public Liability Insurers or deal with you direct. If you do not hear from the contractor within the next 21 days I would suggest that you contact them yourself.
Should any difficulties be experienced in the pursuit of your claim with the contractor, please do not hesitate to contact above (sic)named officer for further assistance.
Yours sincerely,
XYZ Claims handler.
So, what to do? I sent back the thingummie to the Small Claims Court, asking to pursue the council in court about 3 days after this thread was started; so over a month ago now (although I don't have a court date yet.) Dear Mr zcacogp,
RE: Alleged incident: XYZ Road
Date: 22nd April 2008
I write with reference to your claim concerning the above incident.
My invesitgation has revealed that responsibility for the incident rests with the following Councils Contractor:
[i]Blah Tree Company
Blah Tree Address
Blah Tree Telephone Number[/i]
who was carrying out works to the location at that time.
The claim was referred to the contractor on 19 September 2008, and they have been requested to either forward the claim to their own Public Liability Insurers or deal with you direct. If you do not hear from the contractor within the next 21 days I would suggest that you contact them yourself.
Should any difficulties be experienced in the pursuit of your claim with the contractor, please do not hesitate to contact above (sic)named officer for further assistance.
Yours sincerely,
XYZ Claims handler.
Do I continue as it currently is, and take the council to court? Do I cancel the current case and instead raise a case against Blah Tree Company? Do I start a new case against Blah Tree Company and keep the case against the council running? Should I contact either the council or Blah Tree Company?
I'll await more informed guidance from the PH masses, but my gut instinct is to carry on with the council claim. My letter to them gave them 3 weeks to respond or I would issue against them in court. They didn't respond in this timeframe (in fact, it has taken them almost exactly 5 months to simply tell me who they use to plant trees), therefore I am inclined to continue against them.
All advice welcomed. Thanks.
Oli.
) The Black Duke said:
Continue persuing the council.
Agreed.We've had work done on the house for 4 months earlier this year.
Pavement was already damaged but the LA is chasing me for, I quote, 'damage caused by deliveries to my house by various companies'.
The pavement was already damaged but thats beside the point, if they can chase me for damage casued by a 2rd party, surely thats the same as you chasing them for damage caused by someone acting on their behalf.
Keep on at the council.
It is liable for the acts of its agents. If it wants to seek a contribution or indemnity from the contractor in these proceedings, it needs to issue a Part 20 claim and formally join the contractor. Doesn't sound like they've done that. The longer they leave it, the less chance the court will give them permission to do so if/when they apply.
It doesn't matter to you who actually caused the loss. If it was done at the council's behest, your claim is against them and it's for them to take steps to pass it on.
Full steam ahead and enjoy seeing them getting short shrift from the District Judge at the small claims hearing.....
It is liable for the acts of its agents. If it wants to seek a contribution or indemnity from the contractor in these proceedings, it needs to issue a Part 20 claim and formally join the contractor. Doesn't sound like they've done that. The longer they leave it, the less chance the court will give them permission to do so if/when they apply.
It doesn't matter to you who actually caused the loss. If it was done at the council's behest, your claim is against them and it's for them to take steps to pass it on.
Full steam ahead and enjoy seeing them getting short shrift from the District Judge at the small claims hearing.....
UPDATE AGAIN
Sorry to be thick, but what does this mean?
I am guessing that it means that the council's defence has been considered to be insufficient, and they get an opportunity to try again. It does NOT mean that the case has been decided in my favour.
Is this correct? If so, what can I expect to have happen now? If not, what does it mean? (I am on the 'phone to the court as I type this, but they have spent the last 15 minutes failing to answer the 'phone and PH may well be quicker ... and will certainly be more helpful!)
Thanks, again.
Oli.
Racylady said:
... have their current defence struck out.
Racylady's comment above proved particularly prescient ... I wrote back to the Small Claims people asking that this case should go to court, and have just received a letter back from the court saying that ... Bow County Court said:
Before DISTRICT JUDGE **** sitting at Bow County Court, <address>.
Upon the Courts own motion. The Court has made this order of its own initiative without a hearing. If you object to the order, you must make an application to have it set aside, varied or stayed within 7 days of receiving it and
Upon the Court considering the papers filed and the Court noting that the defence filed does not disclose any defence to the claim and that the defence is not signed
IT IS ORDERED THAT
The Defence is struck out.
Dated 15 September 2008
<Court Stamp>
(Bolds, line breaks, punctuation etc all as per the original letter.)Upon the Courts own motion. The Court has made this order of its own initiative without a hearing. If you object to the order, you must make an application to have it set aside, varied or stayed within 7 days of receiving it and
Upon the Court considering the papers filed and the Court noting that the defence filed does not disclose any defence to the claim and that the defence is not signed
IT IS ORDERED THAT
The Defence is struck out.
Dated 15 September 2008
<Court Stamp>
Sorry to be thick, but what does this mean?
I am guessing that it means that the council's defence has been considered to be insufficient, and they get an opportunity to try again. It does NOT mean that the case has been decided in my favour.
Is this correct? If so, what can I expect to have happen now? If not, what does it mean? (I am on the 'phone to the court as I type this, but they have spent the last 15 minutes failing to answer the 'phone and PH may well be quicker ... and will certainly be more helpful!)
Thanks, again.
Oli.
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