Small claims, mediation and discontinuances

GD v Monmouthshire County Council

Readers will be aware that Small Claims matters, particularly those pursued by Litigants in Person, can present various challenges, which can increase costs disproportionately.

These Small Claims matters are usually referred through the Court system for a mediation appointment at an early stage, in the hope that an amicable settlement can be reached or discontinuance achieved.

It is important, therefore, to provide a firm response from the outset, in the hope that this will prevent the matter proceeding further.

In the case of GD v Monmouthshire County Council, in which Dolmans represented the Defendant Local Authority, and although not referred for a mediation appointment, the desired effect was achieved at an equally early stage following an appropriately pleaded Defence.

Background and allegations

The Claimant alleged that her vehicle came into contact with a pothole in the Defendant Local Authority’s carriageway, causing both tyres on the passenger side of her said vehicle to burst. As a result, the Claimant alleged that such tyres had to be replaced at a cost of almost £1,000.00.

The Claimant alleged that the Defendant Local Authority’s inspection regime for the said carriageway, which was adopted, was insufficient and effectively questioned the Defendant Local Authority’s relevant system.

The alleged pothole had been noted for repair prior to Claimant’s alleged accident, with such repair to be undertaken within an appropriate response time. The Claimant’s alleged accident occurred within the said response time, whilst repairs were awaited.

The Claimant alleged that the Defendant Local Authority’s system, including inspections and risk categories/assessments, was flawed and/or unreliable. The Claimant alleged that the relevant pothole was dangerous and/or in a high-risk position.

Although the Claimant was a Litigant in Person, she had undertaken sufficient research to make reference to the said system and the appropriate Code of Practice.

Defence

A robust Defence was filed and served on behalf of the Defendant Local Authority.

No admissions were made as to the circumstances of the Claimant’s alleged accident, including the Claimant’s alleged timeline and measurements of the alleged pothole. The Claimant was put to strict proof as to the same. Causation was denied accordingly.

It was also denied that the Defendant Local Authority, its servants and/or agents were negligent and/or in breach of any statutory/other duty and/or any Code of Practice, as was alleged.

The Defendant Local Authority had both a scheduled system of inspection/maintenance and a reactive system in place at the time of the Claimant’s alleged accident. It was averred that the alleged defect was accurately classed by the Defendant Local Authority and that the relevant Code of Practice, including any National Standards, was complied with.

It was contended that the Defendant Local Authority had taken all reasonably practicable steps to comply with its statutory obligations. The carriageway where the Claimant’s alleged accident occurred was the subject of a regular system of maintenance and driven inspections on a regular basis, in addition to a reactive system, at the time of the Claimant’s alleged accident.

A pothole was correctly categorised for repair during the Defendant Local Authority’s last scheduled inspection prior to the Claimant’s alleged accident, with an appropriate response time, which was also correct in the circumstances. It was reiterated that the Claimant’s alleged accident occurred within the said response time.

The Defendant Local Authority had no record of having received any complaints relating to the location of the Claimant’s alleged accident during the 12 month period prior to the date of the same and had no record of any other accidents at the said location during the same 12 month period.

As such, the Defendant Local Authority reserved its position to rely upon Section 58 of the Highways Act 1980, in the event that the Claimant proved factual causation and dangerousness.

In addition, contributory negligence was alleged on the Claimant’s part and quantum was disputed.

Allocation and discontinuance

The matter was allocated to the Small Claims Track and listed for a Small Claims Track Hearing.

Although the Court provided various directions, the matter did not proceed that far as the Claimant discontinued her claim prior to the same.

Comment

Somewhat unusually for a Litigant in Person, the Claimant in this matter had pleaded her case in a precise and coherent manner. It was clear, however, that the Defendant Local Authority had an appropriate system in place and adhered to the relevant Code of Practice.

Being faced with a robust Defence in support of the above, the Claimant clearly decided that it was unlikely that her case would succeed and discontinued her claim accordingly.

It is unclear as to why the above matter was not listed for a mediation appointment, as is now usually the case for similar Small Claims Track matters. However, the relatively early discontinuance in this matter had the same effect, with substantive costs being saved by avoiding the need to comply with Court directions.

Tom Danter is an Associate at Dolmans Solicitors.