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Ask Alice H Your Own Question

Alice H
Alice H, Solicitor/Partner
Category: Law
Satisfied Customers: 2847
Experience:  Partner in national law firm
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Hi, I am a director of a UK company, which is a residents

Customer Question

Hi,

I am a director of a UK company, which is a residents association, which has received a summons from our local council in respect of a debt (for £700) for which the company has consistently denied liability and the council has refused to discuss the relevant legal arguments. The council has sought to have the matter brought before a magistrates court rather than a small claims court. The questions I have are around process. As an unfunded entity where our work as directors is pro bono we are representing ourselves:

- at what point do we submit our written defence arguments to court
- how does court procedure function on the day of the hearing
- although we believe we have strong legal argument in support of our defence, in the event we lose, it would appear the council can claim for its (unspecified) legal expenses. How can these be capped/mitigated
- if we win, how and when can we claim for our costs and expenses (which although we work on a pro basis, are considerable in terms of our time)

- If you are also able to give us a view, the case is in respect of establishing liability for a tree branch which fell on to a public highway from the garden owned by the residents association during a storm, which the council deemed to remove at our expense. Their claim is under S149 of the Highways Act, which by our reading relates to a "person" depositing an item, not something which did not arise through human agency

Many thanks

Tim
Submitted: 2 years ago.
Category: Law
Expert:  Alice H replied 2 years ago.
My name is Alex Hughes and I'm happy to help with your question today.

Is this a claim in the County Court? And is the summons directed to the company as opposed to a named director?
Customer: replied 2 years ago.

The claim is in a Magistrates Court and to the Company

Expert:  Alice H replied 2 years ago.
What is the debt for?
Customer: replied 2 years ago.

A claim the council is making against us under S149 of the Highways Act in respect of the cost they incurred in removing a branch which fell, during a storm, on the Highway from a tree on a small piece of land which the Company owns

Expert:  Alice H replied 2 years ago.
Thanks. Unfortunately I am unable to see the original question in full, so please bear with me. I am just going to have a look at the law.
Customer: replied 2 years ago.

This was the question


 


Hi,

I am a director of a UK company, which is a residents association, which has received a summons from our local council in respect of a debt (for £700) for which the company has consistently denied liability and the council has refused to discuss the relevant legal arguments. The council has sought to have the matter brought before a magistrates court rather than a small claims court. The questions I have are around process. As an unfunded entity where our work as directors is pro bono we are representing ourselves:

- at what point do we submit our written defence arguments to court
- how does court procedure function on the day of the hearing
- although we believe we have strong legal argument in support of our defence, in the event we lose, it would appear the council can claim for its (unspecified) legal expenses. How can these be capped/mitigated
- if we win, how and when can we claim for our costs and expenses (which although we work on a pro basis, are considerable in terms of our time)

- If you are also able to give us a view, the case is in respect of establishing liability for a tree branch which fell on to a public highway from the garden owned by the residents association during a storm, which the council deemed to remove at our expense. Their claim is under S149 of the Highways Act, which by our reading relates to a "person" depositing an item, not something which did not arise through human agency

Many thanks

Tim


 

Expert:  Alice H replied 2 years ago.
Thanks. I've looked at both the legislation and some case law on the topic. Please bear with me for about 15 minutes as I will need to type an answer.
Customer: replied 2 years ago.

Ok, I need to go out for a bit so I will review the response when I am back in a couple for hours, Could you please also cover the 4 points around the court process I raised as well as the case law re liability itself.


 


Thanks

Expert:  Alice H replied 2 years ago.
Thanks for your patience. Dealing with each of the points raised:

A. Submission of defence to the Court.

This is a quasi-civil matter in the Magistrates Court. The first hearing is the enter a plea. If the matter is to be contested the case will usually be adjourned to a new date for the Court to consider an legal arguments and evidence. You need to alert the Court to your legal arguments at the first hearing so that sufficient time can be allocated to the matter on the next occasion.

B. On the day of the hearing

The first hearing is normally very short. The Court will ask you whether the matter is contested or not. If so, what the issues are. At the enxt hearing the Council will present their case, you will raise your legal argument and the Court will adjudicate on the law. If the Court upholds your argument the complaint will be dismissed; if not, the Court will hear any defence that you wish to advance and then decide whether the company is liable or not.

C. Costs

If the matter proceeds to a full blown hearing the Council will apply for their legal costs in addition to the original cost they are claiming. In my experience a straihtforward matter will attract costs of at least £1,000. But where there is an issue of law etc the costs can be upward of £2,000. The only real way to mitigate your loss is to pay the debt and limit your expsoure to £700 plus the costs of the first hearing.

D. Yours Costs

If you are successful you can claim your costs. The court will make an order for costs and you will then have to probide a breakdown - usually the claim is processed by the National Taxing Team and there is a standard claim on their website which you can use. Your costs will be limited to those set out in the costs regulations which you can also obtain from the NTT.

Hope this helps. Happy to discuss further if needed.

Alex
Customer: replied 2 years ago.

Thanks, I am reviewing your answers.


 


In the meantime you haven't actually answered the liability question

Expert:  Alice H replied 2 years ago.
There is no case law on that point I'm afraid. But the legislation does talk about 'depositing' which is different to 'falling'. Deposit in plain English means 'to place' and most of the cas law deals with this issue e.g. placing of bins, rubbish, stalls and other items on the highway thus causing an obstruction. In your case its about a falling branch - which is clearly not depositing. This may be a novel point which you will argue. There is case law which deals with fallen trees obstructing the highway - but none on branches. I think you have an arguable point on the meaning of the word 'depositing' - if the Magistrates argue againt you, you may wish to consider an appeal on a point of law to the High Court, although this would be time consuming and costly.
Customer: replied 2 years ago.

Thank you, that is consistent with our view, so we will fight on.


 


 


Just to be clear:


 


- should we present our dossier of evidence to the court in advance of the first hearing or at the hearing


 


- given the company has no resources and will be bankrupted by an award of uncapped costs against it, would a magistrate, if unable to clarify the point of law, be able to either deny the council leave to claim its costs or transfer the case to a small claims court where each party bears its own costs?

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