My TAXI nudged a fence - court papers ***Settled by ADR***

[maybelate]

thank you aretnap, this is what I intend to do but it's easy to get distracted and carried away sometimes

[AndyOrch]

" Do I fill in N9B and the acknowledgement of service Andy, and can I ask for 28 days to prepare the defence or do I only have 14? "

 

No not the N9B Maybelate thats the defence and counterclaim...just the acknowledgment of service for now......you have 33 days in total from and including the date on the claim if defending in full.

 

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n009-eng.pdf

 

Regards

 

Andy

[maybelate]

oops, thanks Andy. I will acknowledge as advised, but I'm confused about which other form to complete because I've been advised that I don't have any legal defence against this claim and I can only dispute the amount of the claim. The N9B is the only defence form I have received with the pack Andy? Will they send me something else after they receive my acknowledgement?

[Ganymede]

There is no Defence form.

 

You need to draft your own.

[maybelate]

Hi Ganymede, in the pack that I have received there is:

 

an acknowledgement of service form (N9)

an admission form (N9A) and

a defence and counterclaim form (N9B)

 

Andy has adviced me to acknowledge, which I will do, but I am not sure whether to tick that:

 

a) I intend to defend all of this claim or

b) that I intend to defend part of this claim

 

is it a) Andy, that I intend to defend all of the claim?

 

I know that I will have to write my own defence, but at the moment I need to understand what to tick in the first instance.

 

Sorry to sound thick I just don't want to get it wrong.

[Ganymede]

Yes. At this stage tick Defend All.

[AndyOrch]

You will then attach your defence to form N9b.

[maybelate]

Thanks Andy and Ganymede, I understand now

[maybelate]

Would anyone be able to help me to prepare a defence please? Andy, would you mind looking at the pm I sent you to see what you think please?

[Ganymede]

What have you got so far?

 

Post up your draft Defence so others can comment and provide feedback.

[maybelate]

Thanks for the reply Ganymede, I was a bit unsure about posting the defence as you never know who's reading, but here goes:

 

I dispute the amount that is being claimed and put the Claimant to strict proof of the amount for the following reasons:

 

 

1) I informed the property owner about the incident. The damage to the fence was inspected by both parties (myself and the Claimant's wife)| and it was agreed that the damage was minimal to what she labelled as a “rotten fence” and a verbal agreement was reached that I would have the fence repaired. The Claimant was not present at the time of the incident.

 

 

 

2) The Claimant would not allow the damage to the fence to be properly assessed by an independent professional, and refused to allow both myself and/or a professional craftsman access to his property for the purpose of assessing the damage caused by the incident and producing an itemised quotation for the work that was required to carry out the repair (please refer to document a). Therefore I would like to question how I can be ordered to pay an amount without the production of a legitimate quotation from a reputable company with no connection to the Claimant.

 

 

 

3) The Claimant refused my offer to have the fence repaired by a professional craftsman which I offered to arrange at my expense (please refer to document b).

 

 

 

4) The Claimant has exaggerated the amount of damage that was caused to his fence. The Claimant produced only one quotation for the repair, which quoted for work to be carried out which was not caused by the incident i.e. to remove and replace 2 fence posts and to replace an unknown amount of fence panels. However, I have photographic evidence which shows that the damage caused by the incident in question did not impact on any fence posts and only affected part of one wooden fence pane. The Claimant also produced a photograph of his fence which claims to show that a fence pane next to the one that was damaged in the incident was dislodged by the incident (please refer to document c), however, I also have a photograph of the same area of the fence (please refer to document d), which clearly shows that the fence pane was still in place after the incident. This proves that the fence pane was deliberately pulled away from the fence for the purpose of exaggerating the amount of damage that was caused to the Claimant's fence.

 

 

5) The Claimant's aim was not to have his fence repaired as if this was the case he would have accepted my offers to have the fence repaired and this matter would have been resolved in a manner which would have been fair to both parties, and without requiring the Court's intervention. It can only be concluded that the Claimant's intention was to put the claim through his insurance company for the purpose of insurance betterment and/or financial gain, and the Claimant has had his fence repair paid for in full by his insurance company (please refer to document e).

 

I haven't attached the supporting evidence because it contains too much personal information, which if removed wouldn't leave much (if anything at all to read) and I know that I probably need to make some changes, additions, deletions etc. because I am a litigent and don't really understand what is required for this, but any help would be really greatfully received.

 

Thank you

Maybelate

[AndyOrch]

With you shortly Maybelate

[lookinforinfo]

I would just add a couple of points. The first is that Insurance companies and Building Societies[ if there is a mortgage] expect that the property

will be well maintained [not to mention the taking of pride in the appearance of it] and the fence was in a very bad state and had been for some time.I know you have said that it was rotten but it just remind s the Court that they guy does not take care of his property and it is unfair to

expect you to have to pay extra for his neglect.

 

The second thing and the more important is not to accuse the owner of deliberately making his fence worse. You may feel he did ii but unless you

saw him do it, you have no proof whatever. Judges tend to believe the goodness in their fellow man so it would be better to say that the fence

post was not like that when you took the first photographs. You can surmise that it may have been further damaged by persons unknown but

you cannot blame the owner. It may have fallen apart for instance when the guy came to assess the damage and perhaps picked up that fence post or the local yobboes might have kicked it on their way past.

[AndyOrch]

Valid points raised by lookinforinfo ...and just to add I think your opening paragraph should explain the incident which happened in a little more detail...that you are a taxi and why you was there and the speed that you caught it.......dont forget they are trying to claim negligence (amount to be decided by the court) so you must counter it that there was no negligence and put them to strict proof.

 

Back later

 

Andy

[SabreSheep]

Im confused.

 

Fence was damaged.

Claiment got it repaired under insurance.

Now claiment is doing a small claims action for the value of the repairs.

 

I would of thought all he could claim for is any excess he may have to have paid.

 

Am i missing something?

[Aretnap]

Im confused.

 

Fence was damaged.

Claiment got it repaired under insurance.

Now claiment is doing a small claims action for the value of the repairs.

 

I would of thought all he could claim for is any excess he may have to have paid.

 

Am i missing something?

The claimant is claiming for his excess, and the insurance company are claiming for the balance of the repair costs under their rights of subrogation, and the two claims are bundled together (much easier all round that way).

 

The fact that the homeowner's insurance company stepped in doesn't absolve the OP from paying for the damage he caused (whatever that damage was) - it just means that he owes some of that money to the insurance company rather then to the homeowner.

[maybelate]

Thank you for the replies. I take your points Andy and lookinforinfo, I will have a re-jig and post again

[lookinforinfo]

As the Law does not allow Betterment, then all the Insurance company can charge the OP for is the damage he caused. The rest of the cost of the fence and installation are between the Insurance company and their client.

 

The house owner has been unreasonable all along on this. And with the right Judge that should be taken into account on assessing whether the OP

is liable to pay the excess, and indeed the Court costs in this instance.

 

The owner could have accepted the offer from the OP to fix what he damaged when it first happened. The driver did not run away, he knocked on the door and explained what happened and made the offer to repair.

To go to Court is unnecessary as the OP has not refused to pay for the damage , he is just understandably unwilling to pay for a whole new fence.

[maybelate]

Here is the amended defence which I have re-worded and now hopefully includes what Andy and lookinforinfo suggested that I add.

 

 

 

 

I dispute that I have been negligent, the amount of damage that was caused to the Claimant’s fence and the amount that is being claimed to repair it, and put the Claimant to strict proof of the aforementioned, as follows:

 

 

1) I am a Taxi Driver, and on 29 October 2013 after dropping a client at her home address I was reversing my vehicle to turn around to leave the property when the sun reflected in my mirror and I was temporarily blinded, thereby causing me to reverse slightly too far and my vehicle to make contact with the Claimant’s fence. This was a very slow speed incident and I stopped as soon as I realised what had happened. This was an accident, I was not driving too fast, I was not distracted in any way and I was exercising ordinary care as would any other reasonably careful person, therefore I dispute the accusation that I was negligent.

 

 

I knocked on the Client’s door and informed the property owner about the incident. The damage to the fence was inspected by both parties (myself and the Claimant's wife), the fence had been neglected and was in a very poor state of repair and it was agreed that the damage was minimal to what she labelled as “a rotten fence” and a verbal agreement was reached that I would have the fence repaired. The Claimant was not present at the time of the incident, and I left after giving the Claimant’s wife my contact details.

 

 

2) Some time later I was contacted by the Claimant who was drastically exaggerating the amount of damage that had been caused to his fence, stating that his fence had received significant damage caused by the incident. The Claimant refused to allow both myself and/or a professional craftsman access to his property for the purpose of assessing the damage caused by the incident and producing an itemised quotation for the work that was required to carry out the repair (please refer to document a). The Claimant produced a single invoice for the repair, which was provided by an acquaintance of his (as advised by the Claimant’s wife), which charged for work to be carried out which was not caused by the incident i.e. to remove and replace 2 fence posts and to replace an unknown amount of fence panels. I have photographic evidence which shows that the damage caused by the incident in question did not impact on any fence posts and only affected part of one wooden fence pane. The Claimant also produced a photograph of his fence which he claims shows that a fence pane next to the one that was damaged in the incident was also dislodged by the incident (please refer to document b), however, I also have a photograph of the same area of the fence (please refer to document c), which clearly shows that the fence pane was still in place after the incident. This proves that this fence pane was damaged at a later date and not by the incident, and therefore it is not my responsibility to have it repaired.

The Claimant is being unreasonable by expecting me to pay an amount without the production of a legitimate quotation from a reputable company with no connection to himself. I therefore put the Claimant to strict proof of the damage that was caused to his fence by the incident, in the form of photographic evidence taken before and after the repair was carried out, thereby providing evidence of the work having been done and by providing a witness statement from the contractor who carried out the repair detailing the work that was done, with supporting information regarding how the impact of the incident on 29 October 2013 caused the damage and invoices providing proof of materials purchased in order to carry out the repair.

 

3) I offered to send a professional to have the fence repaired at my expense but the Claimant refused my offer (please refer to document d), and although I am prepared to pay to have the damage that I caused to the Claimant’s fence repaired the Claimant's aim was not to have his fence repaired, as if this was the case he would have been less uncooperative and he would have accepted my offers and this matter would have been resolved in a manner which would have been fair to both parties, and without requiring the Court's intervention. It can only be concluded that the Claimant's intention was to put the claim through his insurance company for the purpose of insurance betterment and/or financial gain. The Claimant has had his fence repair paid for in full by his insurance company (please refer to document e).

Again any advice would be great

Thanks

Maybelate

[f16]

Fence pane ??

[Ganymede]

Paragraph one is nonsense I'm afraid. You were negligent by driving your car into his fence. You cannot deny that. What you should deny is the level of damage caused.

 

Paragraph two should not accuse him "drastically exaggerating his claim in my opinion. I also think you're putting too much emphasis on his carpenter being an acquaintance and including the statement about the Claimant's wife saying this is mere hearsay.

 

Paragraph three just comes across as you trying to blame the Claimant for everything when you were the one who did the damage (albeit small) so you need to accept that. The Claimant doesn't have to accept your "professional craftsman" to fix the fence and the Court won't think him unreasonable for preferring to go through his insurance company instead.

 

It's understandable that you're upset by this claim. No offence intended but but you are coming across a little bitter and belligerent.

[maybelate]

I have been advised that it's up to me to put my case to the judge and to tell him what actually happened on the day of the incident, which is what I have tried to do, I'm sorry if this is nonsence. If it's ok for someone to say that you caused xxx amount of damage, whatever figure they choose, and get away with it regardless of the actual truth then there's no justice. I am not being bitter and belligerent, I admit that I hit his fence and I am and always have been prepared to pay for the damage I caused but why should I be expected to pay for him to have a new one? He is committing the offence, I am prepared to pay for the damage I caused, but no more.

[AndyOrch]

Hi maybe

 

I think that the above is rather like a witness statement rather than a defence....a little too in depth for this stage of the claim.I think it should be approached in the same way as I draft a defence in Financial Legal Issues.

 

Your responses at this stage should be tailored to the particulars only and then put the claimant to strict proof.You are then testing the claimant if they are willing to go the whole process of the claim and in effect turning the claim on them to prove its case.

 

Remember that most claimant do not expect a defence to be submitted and expect the easy route of default judgment...once you start questioning their claim in great detail and signify how much work is going to be involved in getting this trial...they may just then decide that is simply not worth the effort.

 

Start here by typing in the particulars of claim...number them...and then respond to just those points for now.You will be able to go into great detail once they have received this short defence and decide if they wish to proceed.

 

Bare bones and rather vague for starters...no account and no emotion.

 

Just my opinion

 

Andy

[Ganymede]

I totally agree and have been saying that all along, I just think your Defence needs a little work.

 

For example the Defence should mirror the format of and refer to the numbered paragraphs of the Particulars of Claim and read something like:

 

1) Paragraphs 1-3 are admitted.

 

2) Paragraph 4 is denied.

 

Etc

 

It is denied that I caused the level of damage to the Claimant's fence and the Claimant is put to strict proof. Etc etc.

 

Photographs of the damage are attached showing...

 

Etc

 

 

 

Don't forget you'll have a chance to expand on your arguments later down the line in your witness statement.

[Ganymede]

Hi maybe

 

I think that the above is rather like a witness statement rather than a defence....a little too in depth for this stage of the claim.I think it should be approached in the same way as I draft a defence in Financial Legal Issues.

 

Your responses at this stage should be tailored to the particulars only and then put the claimant to strict proof.You are then testing the claimant if they are willing to go the whole process of the claim and in effect turning the claim on them to prove its case.

 

Remember that most claimant do not expect a defence to be submitted and expect the easy route of default judgment...once you start questioning their claim in great detail and signify how much work is going to be involved in getting this trial...they may just then decide that is simply not worth the effort.

 

Start here by typing in the particulars of claim...number them...and then respond to just those points for now.You will be able to go into great detail once they have received this short defence and decide if they wish to proceed.

 

Bare bones and rather vague for starters...no account and no emotion.

 

Just my opinion

 

Andy

 

Maybe this is good advice, you should take note.