Legal help needed please!

[slow_poke]

Do they own or rent that property?

[paintman]

Your hope is that their insurers are forced to deal with the matter given the actual circumstances.
If they do manage to wriggle out of it & you're left with the firestarters & they really don't have any money then even if you did win at court you may not get much.
Bear in mind any legal costs you may incur.
The term 'pyrhhic victory' springs to mind...

Edited by paintman on Tuesday 18th February 12:44

[CanAm]

paintman said:

Your hope is that their insurers are forced to deal with the matter given the actual circumstances.
If they do manage to wriggle out of it & you're left with the firestarters & they really don't have any money then even if you did win at court you may not get much.
Bear in mind any legal costs you may incur.
The term 'pyrhhic victory' springs to mind...

If the neighbour is held to be legally liable for this accidental damage, then his Insurers will pay. It looks like on the basis of the facts given to them (eg neighbour telling porkies) they dont believe he is legally liable.

[tinnitusjosh]

Cannot understand why everyone is suggesting OP goes after the neighbour's insurers, and not the neighbour himself. The neighbour is the party at fault (to the extent he is at fault - no comment) so I'd be going after him. It's for neighbour and his insurers to settle behind the scenes, and the extent to which it is or is not covered by neighbour's insurance is not OP's concern (except to the extent that neighbour may not have deep enough pockets on his own)

[Fastpedeller]

tinnitusjosh said:

Cannot understand why everyone is suggesting OP goes after the neighbour's insurers, and not the neighbour himself. The neighbour is the party at fault (to the extent he is at fault - no comment) so I'd be going after him. It's for neighbour and his insurers to settle behind the scenes, and the extent to which it is or is not covered by neighbour's insurance is not OP's concern (except to the extent that neighbour may not have deep enough pockets on his own)

What you've said, plus the neighbour isn't interested in tackling his insurers about it, he'd prefer it to just all go away. The OP is probably the only person who wants this sorted, so his best route to resolution (financially) is to go for the insurance co (the ones with the money) Good luck OP - I hope you can get them to pay up. I'd be seriously p##### o### if this happened to me.

[martinbiz]

Lighting a large fire in your garden on a tinder dry summer day is the other side of stupid, and clearly negligent.OP For a fairly small cost you could get your Solictor to write a short letter to the neighbour and their ins co, and that may well be enough, it is in their remit to try and deny liability initially

Another avenue to explore is to check the laws that apply in your area, a lot of councils have banned garden fires over the years re air quality issues, so you may find he is in breach of a byelaw, finding this out could well waterproof your case

[Chris32345]

Chrisgr31 said:

I have experience of this although 14 years ago.

We were planning a BBQ in the garden and had it looking lovely. The weekend before I looked out of an upstairs window and admired how good the garden looked. However I noticed it appeared a neighbour was having a bonfire, which seemed odd as t had been very dry etc. So I popped down the garden to investigate further. Shouted over the fence but no answer. Whilst the gardens met the house wasnt next door but round the corner in a different street. So I called 999. The Fire Brigade arrived within 8 minutes. By that time the fence was alight, trees both sides of my garden were alight the fence was alight as was my shed and that of my neighbour.

The fire brigade put out the fire and the following weekend we had a BBQ in a fire ravaged open plan garden!

My insurance company, which was a well known brand but I cant recall which, covered my shed but would not cover plants and trees. Neighbours covered absolutely everything and he got a new pond, shed, patio etc.

It transpired the fire had been caused by the electric on the pond overheating due to a lack of water. My Insurance company said that they couldnt claim off him as he was not negligent so I had to pay the excess. I said hang on the fire was caused by the electrics over heating and he must of been negligent because he hadnt checked them and the pond. The water level in the pond had dropped causing them to overheat. I got my excess back but still didnt get plants replaced.

Having said that most of the plants recovered over time.

Personally I think that a spark from a bonfire may not be negligent, unless it was a very dry period.

Hardly call that negligence pump should have dryrunning/overheating protection

[Red Devil]

Mildredthedog said:

Thanks for that everyone.
The reason for the fire was to clear up a lot of household waste (as ordered from the council) and instead of getting a skip they decided to burn it. Very stupid idea in September after a dry summer.

Depending on exactly what it was, burning it may have been illegal (release of toxic particles/smoke: see below)pursuing - https://www.gov.uk/garden-bonfires-rules

martinbiz said:

Lighting a large fire in your garden on a tinder dry summer day is the other side of stupid, and clearly negligent.OP For a fairly small cost you could get your Solictor to write a short letter to the neighbour and their ins co, and that may well be enough, it is in their remit to try and deny liability initially

Another avenue to explore is to check the laws that apply in your area, a lot of councils have banned garden fires over the years re air quality issues, so you may find he is in breach of a byelaw, finding this out could well waterproof your case

Could you point to any local authority which has a byelaw specifically banning bonfires? I have yet to find one.
The applicable legislation is national: the Environmental Protection Act 1990.Certainly worth
Section 79(1)(b) smoke emitted from premises so as to be prejudicial to health or a nuisance
Section 79(1)(c) fumes or gases emitted from premises so as to be prejudicial to health or a nuisance

Definitely worth pursuing. Particularly given there was a council order for its disposal (see above).

[Snails]

Chrisgr31 said:

I have experience of this although 14 years ago.
...
My insurance company, which was a well known brand but I cant recall which, covered my shed but would not cover plants and trees. Neighbours covered absolutely everything and he got a new pond, shed, patio etc.
...

The reason for that is down to how household insurance policies define buildings and contents.

These definitions set out what items the insurance broadly covers. Ponds, outbuildings, patios, paths etc will normally be considered part of the buildings cover and therefore your neighbour's insurer would have covered these as part of a buildings insurance claim. The definition of buildings does not usually include plants or trees and therefore you might think to look to the contents section of the policy.

The contents will be defined something like this:

Household goods, personal belongings and
business equipment owned by you or for
which you are legally responsible including:
i) bicycles
ii) money;
iii) tenants’ fixtures and fittings; and
iv) software, data, files and downloads
stored on any computer, entertainment,
audio or video equipment;
in your home.

but excluding:
• Contents in any communal part of the home.
• Vehicles and other means of transport that are
mechanically propelled or assisted, whether
licensed for road use or not, or their parts
(other than domestic gardening equipment,
mobility carriages, electric wheelchairs and
electrically assisted bicycles that are not
required to be licensed if used on a public road).
• Caravans, trailers, aircraft, drones, hovercraft,
boats or their parts.
• Livestock or pets.
• Landlord’s fixtures and fittings.
• Property held or used for business purposes
other than business equipment.
• Any part of the buildings.
• Property insured under any other policy.

With the in 'your home' bit being key. It would be reasonable to suggest that according to the above definition that plants and trees might be included within the above definition as they aren't in the exclusions, however 'Your Home' will be a defined term that will be along the times of:

"The house or flat at the address shown on your schedule, its
garages, greenhouses and outbuildings, all used for domestic
and clerical business purposes only.

By this they mean the physical buildings themselves. As the definition of contents only includes those in 'your home' and the garden is not 'your home', items not within buildings are not considered contents for the purpose of the policies and therefore trees are not covered.

Some insurers will provide additional cover usually called "contents in the open" or "plants and trees" and will insure them against certain perils such as fire.

Edited by Snails on Tuesday 18th February 14:41

[nikaiyo2]

tinnitusjosh said:

Cannot understand why everyone is suggesting OP goes after the neighbour's insurers, and not the neighbour himself. The neighbour is the party at fault (to the extent he is at fault - no comment) so I'd be going after him. It's for neighbour and his insurers to settle behind the scenes, and the extent to which it is or is not covered by neighbour's insurance is not OP's concern (except to the extent that neighbour may not have deep enough pockets on his own)

The problem is you have to prove negligence, NOT just that the neighbours actions caused your loss.

The fact he started the fire and it resulted in damage to the neighbours property does NOT necessarily mean the neighbour was negligent.

Starting a small fire that rapidly gets out of hand would likely not be negligent, unfortunate, not negligent.

Stupidity does not equate to negligence.

Really, proving negligence is VERY difficult, those saying "he is negligent" are perhaps giving the OP a level of false hope.
There is a reason insurance companies very rarely pursue the other party in disputes like this, over £8k... they would never do it.

[martinbiz]

Red Devil said:

Could you point to any local authority which has a byelaw specifically banning bonfires? I have yet to find one.
The applicable legislation is national: the Environmental Protection Act 1990.Certainly worth
Section 79(1)(b) smoke emitted from premises so as to be prejudicial to health or a nuisance
Section 79(1)(c) fumes or gases emitted from premises so as to be prejudicial to health or a nuisance

Definitely worth pursuing. Particularly given there was a council order for izts disposal (see above).

Semantics really mate, whether it’s a bye law or not doesn’t really matter, my point was that if it transpires that the neighbour was breaking the law by having a fire at all, it pretty much gives him a slam dunk claim against the ins co

[meatballs]

nikaiyo2 said:

The problem is you have to prove negligence, NOT just that the neighbours actions caused your loss.

The fact he started the fire and it resulted in damage to the neighbours property does NOT necessarily mean the neighbour was negligent.

Starting a small fire that rapidly gets out of hand would likely not be negligent, unfortunate, not negligent.

Stupidity does not equate to negligence.

I would say stupidity is very closely linked to negligence.

Could the neighbour have reasonably foreseen starting a fire in the conditions could cause secondary fires? Yes/no

If yes, did the neighbour put appropriate controls in place to prevent/reduce the risk of this? Yes/no

If no, then negligent.

[slow_poke]

nikaiyo2 said:

The problem is you have to prove negligence, NOT just that the neighbours actions caused your loss.

The fact he started the fire and it resulted in damage to the neighbours property does NOT necessarily mean the neighbour was negligent.

Starting a small fire that rapidly gets out of hand would likely not be negligent, unfortunate, not negligent.

Stupidity does not equate to negligence.

Really, proving negligence is VERY difficult, those saying "he is negligent" are perhaps giving the OP a level of false hope.
There is a reason insurance companies very rarely pursue the other party in disputes like this, over £8k... they would never do it.

Starting a small fire under circumstances previously described (summer, dry, near fence etc) and then not minding it to the extent that it was our OP who discovered it out of control and had to raise the alarm - sounds pretty negligent-y to me. Enough to put it before a judge anyhoo.

[martinbiz]

nikaiyo2 said:

The problem is you have to prove negligence, NOT just that the neighbours actions caused your loss.

The fact he started the fire and it resulted in damage to the neighbours property does NOT necessarily mean the neighbour was negligent.

Starting a small fire that rapidly gets out of hand would likely not be negligent, unfortunate, not negligent.

Stupidity does not equate to negligence.

Really, proving negligence is VERY difficult, those saying "he is negligent" are perhaps giving the OP a level of false hope.
There is a reason insurance companies very rarely pursue the other party in disputes like this, over £8k... they would never do it.

Tosh does not apply in the slightest in this case

[martinbiz]

slow_poke said:

Starting a small fire under circumstances previously described (summer, dry, near fence etc) and then not minding it to the extent that it was our OP who discovered it out of control and had to raise the alarm - sounds pretty negligent-y to me. Enough to put it before a judge anyhoo.

This plus the fact that they may also have been breaking the law.
As I said earlier at this juncture I would be going back to the neighbours ins co

[anonymous-user]

IANAL. Would the Rylands v. Fletcher principle apply here, if the items being burned were non-natural use of the land?

If so, negligence would not need to proven.

[s2bounce]

Your neighbor may potentially be liable if he left the fire unattended, was not in control of the fire at all times and if he did not have the facility to put the fire out if it spread. Ask the neighbor;s insurer for reasons as to why they don't accept liability for the fire as your neighbor would have filled in a claim form for his insurer with his version of events.

[Durzel]

Maybe the neighbour’s insurers also did not insure the garden, like the OP.

I would personally claim against the neighbour. If they want to make their insurer a party to the claim then that’s on them. You don’t know if the insurers are liable as you have no idea to the scope of their liability, but you can certainly explore the negligence aspect on the part of the neighbour. The fact they’ve batted it back would suggest that they don’t believe they are liable, but of course that’s the first bite of the cherry.

There’s no reason the OP can’t run it through the courts as a litigant in person. There are templates online for letters before action, etc.

If the neighbour just thinks it’s a big fuss over nothing and their insurers rightly or wrongly are washing their hands of it I can’t see what other choice the OP has beyond sucking it up.

[anonymous-user]

Adding some pragmatism; if the neighbours are not insured and have no cash/readily available assets, it might be a folly to spend too much on legal advice and action over which the costs are going to be irrecoverable.

It might be worth discussing some more and coming to an arrangement with the neighbour over an acceptable level of reparation or plan around it.

[Peter911]

I cannot believe some of the tosh on here.

The neighbours are insured.

They are negligent.

Lighting a bonfire and allowing it to get out of control is negligent.

Issue proceedings. They will lose the case and then the neighbours insurers have to pay.

The end.