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Small claims court help., Taking my council to court for pothole damage
nnettler
post Thu, 29 Feb 2024 - 18:51
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So I've made a claim against my local council for damage to pothole. My case seemed to be pretty solid having collected evidence during the process before I made the claim. I have a court date.

But it's come to my attention that it may be the case that the pothole I am saying hit my vehicle, that the council may no have been aware of it. When reporting it, I looked on the council website to track the defects, and there appeared to be one at the location I had hit, so I , as I'm sure basically anyone would assume, assumed the council knew about it before and made the claim. They rejected it, but not on the grounds they didn't know about it, only it wasn't dangerous. I have evidence to dispute this, they measured it as 70mm when I measured it as 200mm, and i have dashcam footage which would contradict the former measure.

However this new information I came into possession of recently seems to suggest that the defect I hit was actually not the one which was known about before, and now I don't know what to do. As a large part of my case (not all of it, far from it) rests on the assumption the council knew about the pothole for 4 years. I have an inclination that this may actually refer to another pothole, a mere few metres away from the one I hit. I have no way of proving this. The coordinates given for that pothole match the same one as I hit. In their filing of defence, the council claimed there were no dangerous defects before inspection, but their main attack was I had supposedly not proven causation.

So what do I do now? Do I keep my witness statement a more detailed version of the particulars of claim? Do I tear it up, write a new one, claiming I am now not sure of the facts of the case? Do I keep it the same, but add that new information I am now privy to has caused doubt about some parts of the case, information i did not have at the time?

I am worried about either lying, seen as having lied, or continuing with the case, and the court decides that as there is no fundamental basis to the case, I am now liable for thousands of pounds in legal fees. I fear the same outcome if I withdraw.

Any advice?

I'm thinking of just discontinuing but don't want to get charged fees.

Anyone have any experience with this or the small claims court
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post Thu, 29 Feb 2024 - 18:51
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southpaw82
post Thu, 29 Feb 2024 - 19:00
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Well, rule no 1 is don’t lie.

If you’re in small claims, I’m not sure why you’re concerned about costs, unless you act unreasonably. I don’t do highways claims in England but off the top of my head the council has a defence of it didn’t know about the defect and had a reasonable schedule of inspection in place.

If your case is fatally holed you could just withdraw it (which, IIRC, doesn’t trigger costs on the small claims track). Or, you can press on and see what happens, probably safe from being ordered to pay much in the way of costs.


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nnettler
post Thu, 29 Feb 2024 - 19:33
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QUOTE (southpaw82 @ Thu, 29 Feb 2024 - 19:00) *
Well, rule no 1 is don’t lie.

If you’re in small claims, I’m not sure why you’re concerned about costs, unless you act unreasonably. I don’t do highways claims in England but off the top of my head the council has a defence of it didn’t know about the defect and had a reasonable schedule of inspection in place.

If your case is fatally holed you could just withdraw it (which, IIRC, doesn’t trigger costs on the small claims track). Or, you can press on and see what happens, probably safe from being ordered to pay much in the way of costs.


Yes, but could the council argue i was unreasonable in bringing the case? Their reply at first was that they would seek to get it struck out as there was "no causation" in their words. Obviously this did not happen.

Withdrawing it won't trigger costs UNLESS the council believes my withdrawal was unreasonable and i had no real chance of success etc. I think this isn't true.


The pothole I hit was measured by the council after the accident at 70mm, when i measured it it was 200mm. i have dashcam footage.

The issue is like I said with what to write in my witness statement as when I did the particulars of case i honestly believed they knew but now I'm not so sure. so i don't know where that leaves me.
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southpaw82
post Thu, 29 Feb 2024 - 21:41
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The first issue is whether to withdraw your claim or not. Based on what you’ve said, it doesn’t sound like unreasonable behaviour (“conduct that permits if no reasonable explanation”).

The witness statement only becomes an issue if you continue. I’m not really sure what the problem is - your witness statement is about facts relevant to your claim, not why you brought it or anything else. All you can do is give evidence as to where the pothole you hit was; if this is the one the council didn’t know about then so be it.


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nnettler
post Fri, 1 Mar 2024 - 00:14
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QUOTE (southpaw82 @ Thu, 29 Feb 2024 - 21:41) *
The first issue is whether to withdraw your claim or not. Based on what you’ve said, it doesn’t sound like unreasonable behaviour (“conduct that permits if no reasonable explanation”).

The witness statement only becomes an issue if you continue. I’m not really sure what the problem is - your witness statement is about facts relevant to your claim, not why you brought it or anything else. All you can do is give evidence as to where the pothole you hit was; if this is the one the council didn’t know about then so be it.


The problem is if I say X pothole was known about since 2019 and was the one I hit, but if it actually turns out I hit Y pothole which was not known about then it looks like I've lied in my particulars of claim, and my witness statement will omit it and i'll be discredited etc.

If I lose the case i lose the case, but if i lose money that's something else (as in i have to pay fees to the other side etc).

I'm tempted to email the solicitors and confirm if i agree to discontinue the case, they will not seek to impose any costs on me /.
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bill w
post Fri, 1 Mar 2024 - 01:02
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One possibility would be to check FixMyStreet to see if anyone else has reported the pothole via a different gateway
It's quite good as you can submit a photo, and the report is emailed to the council.
How it all works if the pothole is on a road maintained by highways England, rather than the local council, I'm not sure.

Also check local social media to see if anyone else has reported it; where I live, there is now a specific Facebook group collating and reporting potholes.
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Slapdash
post Fri, 1 Mar 2024 - 07:46
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A pothole at location x was measured by the council at a size of h w d. Have the provided any photograph ?

Do you have a photograph of the pothole you hit with you measuring it ? Either of these could be useful.

It could simply be that:-

- the pothole has become larget over time and the council have relied upon a previous inspection.

- you are using a different measuring methodology to the council.

- It's a different pothole.

How precise is the location ? GPS coordinates or a textual description?


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nnettler
post Fri, 1 Mar 2024 - 09:10
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QUOTE (Slapdash @ Fri, 1 Mar 2024 - 07:46) *
A pothole at location x was measured by the council at a size of h w d. Have the provided any photograph ?

Do you have a photograph of the pothole you hit with you measuring it ? Either of these could be useful.

It could simply be that:-

- the pothole has become larget over time and the council have relied upon a previous inspection.

- you are using a different measuring methodology to the council.

- It's a different pothole.

How precise is the location ? GPS coordinates or a textual description?


Well the information I got the other day which made me realise it was a different pothole gave a better description, it was wider in width than the one I hit but the coordinates given were exactly the same as the one I hit.


Yes I do have photos of me measuring it. It's huge, like 200mm. I don't believe the council actually measured it. They didn't drain it off water which it was filled up with. When I asked for pictures of their measurements all they did was show me photos taken from a moving van.
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Slapdash
post Fri, 1 Mar 2024 - 12:03
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Some of those mobile surveying vans will produce very detailed measurements with fairly sophisticated imagery.
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nnettler
post Fri, 1 Mar 2024 - 13:18
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QUOTE (Slapdash @ Fri, 1 Mar 2024 - 12:03) *
Some of those mobile surveying vans will produce very detailed measurements with fairly sophisticated imagery.


Well there's no way it was 70mm. The front near side of my car actually went into the hole, like tilted into it. When I measured it it was deep enough to put a traffic cone in it.

https://drive.google.com/file/d/1_Y35J-k_8w...iew?usp=sharing

https://drive.google.com/file/d/1OEcdJlw6BO...iew?usp=sharing
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The Rookie
post Fri, 1 Mar 2024 - 16:46
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QUOTE (nnettler @ Fri, 1 Mar 2024 - 09:10) *
Well the information I got the other day which made me realise it was a different pothole gave a better description, it was wider in width than the one I hit but the coordinates given were exactly the same as the one I hit.

If the Judge decides that on balance of probabilities that it was the same pothole that had simply got bigger (they do that, afte all potholes don’t just appear as a fixed size) then you have a good case.

If it’s at the same coordinates and there isn’t another there then logically it’s the same one that has got bigger.

The Judge may decide the original size was such that there was no negligence in not repairing it and that it wasn’t negligent to not reasonable for see it could get bigger, but I’d say the odds were good.


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nnettler
post Fri, 1 Mar 2024 - 18:18
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QUOTE (The Rookie @ Fri, 1 Mar 2024 - 16:46) *
QUOTE (nnettler @ Fri, 1 Mar 2024 - 09:10) *
Well the information I got the other day which made me realise it was a different pothole gave a better description, it was wider in width than the one I hit but the coordinates given were exactly the same as the one I hit.

If the Judge decides that on balance of probabilities that it was the same pothole that had simply got bigger (they do that, afte all potholes don’t just appear as a fixed size) then you have a good case.

If it’s at the same coordinates and there isn’t another there then logically it’s the same one that has got bigger.

The Judge may decide the original size was such that there was no negligence in not repairing it and that it wasn’t negligent to not reasonable for see it could get bigger, but I’d say the odds were good.


I ended up speaking to the solicitors and they agreed if I discontinued they wouldn't charge me a penny. It's one of those things where I know I'm in the right but I don't see it being successful. The council will just argue they inspected the road regularly etc etc.

The whole experience has been a learning process, it's taken months of investigation. But I'm no longer as confident as I was in believing my case was solid
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mickR
post Fri, 1 Mar 2024 - 19:57
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QUOTE (nnettler @ Fri, 1 Mar 2024 - 13:18) *


that doesn't look like it's in the tarmac to me it looks more like its in the verge where people have driven on to it.

This post has been edited by mickR: Fri, 1 Mar 2024 - 19:59
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roythebus
post Fri, 1 Mar 2024 - 22:50
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There's no real need to consult solicitors with a small claims court, they only add to your costs. A lot of councils give in and pass the matter to their insurers to deal with.

It's down to the council to provide evidence for their case, not for you to o it for them. You provide your evidence to prove your case. If it differs to that of the council, then that's for the judge to decide. You won't be lying if it turns out to be a different pot hole to the one the council say they know about. That verge looks like a lot of them where I live in rural Kent.
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