Which court do I need to use to take action against my local council?

[wonky100]

Hello

 

Hopefully the title sums up what I want to know.  

 

I'm considering taking legal action against my local council for injury sustained due to a pothole.

 

The council have not disputed that there was a pothole and that it caused my injury but I'm told that I will have an uphill battle to prove that the pothole was sufficient enough to warrant repair (although it has subsequently been repaired) and that the pothole was missed during inspections.

 

I know for a fact (in writing) that they were aware of the pothole in May 2018 and that it warranted repair.  But I do not know if it was repaired.  I had my accident in February 2019.  If the pothole was repaired, I need to prove that it wasn't repaired sufficiently.

 

I can prove that the council have not repaired other potholes reported to them effectively but need to do more digging to get to the bottom of the pothole in question.

 

But what I'd like to know in the first instance is what court system I need to use?  Can I use the small claims court? Or is that just for commercial claims?

 

Of course if anyone wants to add any other comments that would be appreciated.

 

Thanks in advance.

 

 

[Andyorch]

You have submitted an official complaint first ?

 

https://www.gov.uk/complain-about-your-council

 

Andy

[wonky100]

Thanks Andy

 

The council are already aware.  I did have a no win no fee solicitor but he won't proceed on this basis.

[Andyorch]

So how did they respond to your official complaint ?

[wonky100]

I'm waiting on copy correspondence but they've denied liability, as you would expect.

 

I'm told that they've not disputed that there was a pothole which caused my injury (& which they have subsequently repaired) but they are maintaining a section 58 defence.

 

I know from their inspection report that they were aware of the pothole in May 2018 and that it should have been repaired.  They say it was but I haven't been provided with any evidence.  Maybe the solicitor has it but hasn't provided it yet.

 

However, I do know from the inspection report that there are other potholes which they were aware of which weren't repaired.

 

My solicitor said it'll be difficult to prove the size of the hole at the time of the accident however I have photos and they have confirmed in writing that it was large enough to warrant repair and have subsequently repaired it.  I'm also told that it'll be difficult to prove that they were negligent but I'm coming at this from the view that they were aware of it in May 18 & I had my accident in Feb 19.  I want them to show that a) they fixed it and b) it was fixed adequately.  If it was fixed adequately why had it reappeared in Feb 19?

 

Thanks 

[Andyorch]

14 hours ago, wonky100 said:

Thanks Andy

 

The council are already aware.  I did have a no win no fee solicitor but he won't proceed on this basis.

 

Any particular reason ?

[wonky100]

"In order to question the validity of their pre-accident inspection we would need to be able to prove that the defect was in situ at that time, would have been deep enough to require intervention and that it was missed. 

  

Whilst I take on board your comments, I consider it likely that a Judge at trial would prefer to rely on the inspection records and dismiss your claim."

 

We know from the inspection report that the pothole was present in May 18 and was scheduled to be fixed, ie it was deep enough to require intervention in accordance with the Council's own rules / guidelines.  What we don't know is whether it was fixed and if so whether the repairs were reasonable.

 

I would want to know this prior to pursing any action.

[Andyorch]

But surely its the evidence that you can disclose as the claimant to validate a claim ....not the defendants.You have a Doctors report you photographs etc etc ?

[wonky100]

I have photographic evidence of the pothole, witnesses to the accident and medical evidence re the injuries sustained. 

 

However I need to prove that the council were negligent. 

 

They inspected the road in May 18 and identified that the hole was big enough to warrant repair.  So they can prove that they have a schedule for inspection.  That's in the Council's favour.

 

They need to show that they have an adequate system in place for the reporting of potholes.  This, in my opinion, is debatable but I'd need to get a judge to agree with me.

 

They need to show that they have an adequate system in place to repair potholes which are large enough to warrant repair.  I need to get to the bottom of this.  They identified that the pothole was large enough to warrant fixing but did they fix it?  They haven't advised.  If they didn't fix it, they could be held liable.  However if they did fix it following their inspection in May 18 was the repair reasonable?  If it was repaired why were the potholes present in Feb 19? Although to add confusion, they state there were no potholes in November 18 when the road was inspected.

 

So I need to get to the bottom of the repairs.

 

It doesn't matter that they accept that a pothole caused the accident and injury, I need to prove negligence.

 

I'm not in a position to issue proceedings but just wanted to know whether this type of claim could be made in the small claims court.

[Andyorch]

And they must prove they were not....of course it can be made in the Small Claims Court..but it would be placed in either Fast Track or Possibly Multi track if over £25 K was awarded

[wonky100]

That's my worry.  As each party is usually liable for their own costs in the small claim court but not at Fast Track or Multi Track.

 

I've been to through the small claims and fast track processes previously and was hoping to keep it to the small claims due to it being more informal and the cost implications.

 

I was going to keep the claim amount lowish.  It's not about the money, it's the principal and the council being accountable.

 

Almost 7 months after my accident I am still having ongoing tests to establish the extent of my injuries and have been told that I will never have full movement in my left arm following the injuries

[farmlama]

If your solicitor doesn’t see the claim as having a good chance of success then I would see that as a bad sign.

 

is there a chance that you have misread the inspection reports and gotten confused to convince yourself that you should push this?

 

councils will record minor defects to monitor them even when they aren’t requiring repair right then. Also are you sure that the defect recorded in may 2018 was the same and not a different one that was repaired?

 

your accident happened in February when it’s not uncommon for potholes to open up or get larger because of freezing weather and if this had happened after their last inspection (I assume that may was the last making this a minor road with annual inspections so not hard to believe that it may have deteriorated since theme) and there were no outstanding reports from people, then the council will have a defence to rely on.

 

if you issue in the court, you will need to prove your claim and evidence that the council knew about this hazard (if a minor defect is recorded on their indpection, this will not evidence they knew about a hazard, but go in their favour as it will show they are monitoring small defects).