County Court Pothole Claim Struck Out before Hearing
Discussion
In January 2022 I drove through a large pothole which I couldn't avoid due to a vehicle coming in the opposite direction. This wrecked the two nearside tyres which were almost new.
I submitted a claim to the council whom defended their position based on the usual claim that they had carried out the necessary inspections. I found on Google earth that the pothole was present for a number of months prior to the incident, and getting worse. The last Google image was in the October prior to the incident. The Council still refused to pay, so I issued proceedings via the Small Claims Court.
Whilst going through this process and waiting for a hearing date, I obtained further evidence via a freedom of information act request. I now have evidence that the last inspection was done in December 2021, the pothole in question was not even noted, (it's clearly visible in October). I also know that the inspection was done by one person, and was driven, not walked. The weather on the day was wet.
So whilst they are basing their defence on the fact that they have followed the required procedure, I am arguing that the inspection was not sufficient or fit for purpose. How can you accurately asses a pothole from the driving seat of a van when the hole is full of water?
Whilst gathering this info, the Judge struck out my claim, therefore not giving me the opportunity to present my evidence. I have been told I can request to have that judgement set aside via a N244 Application Form and paying the appropriate fee. My question is, If go down this route, do the same County Court rules apply in that If I were to lose, I would not be responsible for the Council's costs?
Any other advice would be much appreciated.
Thanks R
I submitted a claim to the council whom defended their position based on the usual claim that they had carried out the necessary inspections. I found on Google earth that the pothole was present for a number of months prior to the incident, and getting worse. The last Google image was in the October prior to the incident. The Council still refused to pay, so I issued proceedings via the Small Claims Court.
Whilst going through this process and waiting for a hearing date, I obtained further evidence via a freedom of information act request. I now have evidence that the last inspection was done in December 2021, the pothole in question was not even noted, (it's clearly visible in October). I also know that the inspection was done by one person, and was driven, not walked. The weather on the day was wet.
So whilst they are basing their defence on the fact that they have followed the required procedure, I am arguing that the inspection was not sufficient or fit for purpose. How can you accurately asses a pothole from the driving seat of a van when the hole is full of water?
Whilst gathering this info, the Judge struck out my claim, therefore not giving me the opportunity to present my evidence. I have been told I can request to have that judgement set aside via a N244 Application Form and paying the appropriate fee. My question is, If go down this route, do the same County Court rules apply in that If I were to lose, I would not be responsible for the Council's costs?
Any other advice would be much appreciated.
Thanks R
My own feeling on this
A) it's very annoying the current state of the roads, a mixed of insufficient funding, and then having to use what funding there is on firefighting and low cost repairs, so replacement is even longer.
B) i don't know the legal obligations of the council or others, obviously to an extent you have to rely somewhat on the road condition being acceptable especially in the dark and rain, but you should also drive within the limits of the conditions etc.
C) for the sake of two tyres, even at £120 a corner, you have already done more work than I could justify the time for on the cost alone, at which point if I was doing it it would be on the principal of it not the financial gain. With time, as life has got busier, I've had to become less principled!
Good luck either. Glad the damage wasn't worse.
A) it's very annoying the current state of the roads, a mixed of insufficient funding, and then having to use what funding there is on firefighting and low cost repairs, so replacement is even longer.
B) i don't know the legal obligations of the council or others, obviously to an extent you have to rely somewhat on the road condition being acceptable especially in the dark and rain, but you should also drive within the limits of the conditions etc.
C) for the sake of two tyres, even at £120 a corner, you have already done more work than I could justify the time for on the cost alone, at which point if I was doing it it would be on the principal of it not the financial gain. With time, as life has got busier, I've had to become less principled!
Good luck either. Glad the damage wasn't worse.
It was struck out "as disclosing no proper cause of action and/or failing to claim with sufficient particularity"
I had gathered evidence to present at the hearing, but then wasn't given the opportunity.
I hear what you say re the Council using the defence that it didn't meet the size criteria to be registered in their inspection, but my point is, how can they tell that from the driving seat of a moving vehicle when the hole was full of water. The size of it is clearly visible on google images just prior to the inspection. It's a minor country road with just room for two vehicles to pass each other hence not being able to avoid it.
I had gathered evidence to present at the hearing, but then wasn't given the opportunity.
I hear what you say re the Council using the defence that it didn't meet the size criteria to be registered in their inspection, but my point is, how can they tell that from the driving seat of a moving vehicle when the hole was full of water. The size of it is clearly visible on google images just prior to the inspection. It's a minor country road with just room for two vehicles to pass each other hence not being able to avoid it.
r.g. said:
It was struck out "as disclosing no proper cause of action and/or failing to claim with sufficient particularity"
I had gathered evidence to present at the hearing, but then wasn't given the opportunity.
I hear what you say re the Council using the defence that it didn't meet the size criteria to be registered in their inspection, but my point is, how can they tell that from the driving seat of a moving vehicle when the hole was full of water. The size of it is clearly visible on google images just prior to the inspection. It's a minor country road with just room for two vehicles to pass each other hence not being able to avoid it.
Ok interesting, I've been involved with a SCC before where my "cause of action" was queried, although ultimately the helpful judge allowed me to amend it, no fee. A quick google suggests re potholes:I had gathered evidence to present at the hearing, but then wasn't given the opportunity.
I hear what you say re the Council using the defence that it didn't meet the size criteria to be registered in their inspection, but my point is, how can they tell that from the driving seat of a moving vehicle when the hole was full of water. The size of it is clearly visible on google images just prior to the inspection. It's a minor country road with just room for two vehicles to pass each other hence not being able to avoid it.
"cause of action against the relevant highway authority in negligence, public nuisance or for breach of the highway authority’s statutory duty to maintain the highway"
Paying the fee is intensely annoying, think it's £270 ?
Which I don't think you will get back if you win.
Might have to chalk this one up to experience.
Certainly the claims I make now I am very careful to research the "cause of action" beforehand.
This looks like biggish numbers, but note the timescale is 4 years:
https://www.fleetnews.co.uk/news/car-industry-news...
...at least some people are getting paid out.
https://www.fleetnews.co.uk/news/car-industry-news...
...at least some people are getting paid out.
r.g. said:
OutInTheShed said:
Perhaps you were going too fast for the conditions?
Ok, I'll bite.Perhaps? But no.
Thanks for the useful input. Glad I could help getting your post count up
OutInTheShed said:
Perhaps you were going too fast for the conditions?
How does that response answer this question?r.g said:
My question is, If go down this route, do the same County Court rules apply in that If I were to lose, I would not be responsible for the Council's costs?
...or did you just want to wave your willy?r.g. said:
I also know that the inspection was done by one person, and was driven, not walked. The weather on the day was wet.
So whilst they are basing their defence on the fact that they have followed the required procedure, I am arguing that the inspection was not sufficient or fit for purpose. How can you accurately asses a pothole from the driving seat of a van when the hole is full of water?
Unfortunately an alternative question is how can you cover the milage to do necessary inspections within budget on foot?So whilst they are basing their defence on the fact that they have followed the required procedure, I am arguing that the inspection was not sufficient or fit for purpose. How can you accurately asses a pothole from the driving seat of a van when the hole is full of water?
Personally I think poorer inspections more frequently by driving through at 20-30 mph is better than having someone try to do the inspections on foot and probably fail to inspect 90+% of the network at all... (Of course best solution is automation - see areas that were experimenting with camera based detection on bin lorries - Doesn't need to be particularly reliable when you cover most roads at least fortnightly).
This is also why you should take full advantage of the tooling developed (fix my street/fill that hole) to report to the council;
I was going to say, if you really wanted to know, you would strap some LiDAR on the car and it would 3D map both carriages in one at whatever speed you wanted, but if low grade post processing and it would compaire it to the last scan, extrapolated and estimated time to non compliance, and write it all up in a short report for you.
Grumps. said:
Good point, but it does seem like a huge amount of effort to go through for a couple of tyres.
There's absolutely no reason why people should accept damage from a council that rakes in cash and then fails to maintain the roads.OP simply needs to show there is a case to answer. It's no good sitting on evidence and hoping you can whip it out of your pocket at a hearing. All you need to do is get out with a camera and a ruler/tape measure to show the size and especially depth of the pot-hole, then set out those facts in your written application and attach the photos. Probably if that had been done with a letter to the council they'd have paid up without the need to get into court proceedings at all. That's what I did.
Have you requested the reason for it being struck out?
I think I posted on here, I cycled through a puddle covering 90% of the junction and the deep pothole catapulted me causing a fractured elbow socket. Law firms said that particularly council only accepts liability in 15% of cases and if they said 'take us to court' they'd back out at that point.
So I gathered my own evidence. Like you I found they've contractor hadn't followed the regime. It had been like that for two years prior.
Thankfully I won mine. 8months later they repaired the road.
I don't understand how they work. Throw tons of salt down. Wait years then repair.
I think I posted on here, I cycled through a puddle covering 90% of the junction and the deep pothole catapulted me causing a fractured elbow socket. Law firms said that particularly council only accepts liability in 15% of cases and if they said 'take us to court' they'd back out at that point.
So I gathered my own evidence. Like you I found they've contractor hadn't followed the regime. It had been like that for two years prior.
Thankfully I won mine. 8months later they repaired the road.
I don't understand how they work. Throw tons of salt down. Wait years then repair.
I'd be pissed, however I think you've had it.
Under your own FOI they produced evidence to say they'd recently inspected the road and not found the pothole.
Either it wasn't bad enough to cause your damage, or it didn't exist at the time of their recent inspection.
If part of the road fails, I'd expect any driver to be paying enough attention to notice it and take corrective action, or if they were to unable to, to learn from their own mistake.
What if it had been a load of bricks?
What else do you expect them to do?
Again, not trying to bait you OP, just seeing it as I see it.
Under your own FOI they produced evidence to say they'd recently inspected the road and not found the pothole.
Either it wasn't bad enough to cause your damage, or it didn't exist at the time of their recent inspection.
If part of the road fails, I'd expect any driver to be paying enough attention to notice it and take corrective action, or if they were to unable to, to learn from their own mistake.
What if it had been a load of bricks?
What else do you expect them to do?
Again, not trying to bait you OP, just seeing it as I see it.
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