Where to get copy of precedent?

Where to get copy of precedent?

Postby beardsince1978 » Thu Oct 12, 2017 11:24 am

Hi,

This was going to ask a question but as I've tracked down my answer I'm going to post anyway to help others.

Summary- ROW dispute, trying to reach agreement but planning for court (NfH). Will aim to get this on small claims track (or maybe fast track) to limit cost risk to me. What I would want is declaration judgement and injunction. Plan is to be a litigant in person. I read that normal procedure is to provide copy of any legal precedents that you think helps your case. Where would I get these from? I've found references to a few that seem applicable, Emmett v Sisson [2014] is strong one.

The answer I found was on facebook https://www.facebook.com/SupportBAILII/ ... 7691402098

That was a link to the bailii web site. Hence for copies of precedents I would suggest http://www.bailii.org/form/search_multidatabase.html , tick case law and enter "emmett sisson" in search (without quotes), or whatever your case is. All lowercase is best since that will match all cases.

Hope someone finds that useful.
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Re: Where to get copy of precedent?

Postby Collaborate » Thu Oct 12, 2017 6:28 pm

Small claims track is only for money claims.
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Re: Where to get copy of precedent?

Postby beardsince1978 » Thu Oct 12, 2017 7:21 pm

No it isn't. See CPR 27

https://www.justice.gov.uk/courts/proce ... les/part27

Court’s power to grant a final remedy

27.3 The court may grant any final remedy in relation to a small claim which it could grant if the proceedings were on the fast track or the multi-track.


There are only 3 tracks, small, fast, multi. Small is <10k and short hearing, fast is 10k-25k and no more than 1 day hearing, multi is everything else. In theory if you limit claim to <10k and present it as a clear cut quick case then it should be in the small claims. Small and fast track have cost limits, multi doesn't but don't expect to more than 2/3 costs even if you win.

As I primarily want a judgement and injunction then <10k doesn't bother me.
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Re: Where to get copy of precedent?

Postby MacadamB53 » Thu Oct 12, 2017 9:31 pm

Hi beardsince1978,

26.6 sets out what the small claim track is for:

Scope of each track
26.6
(1) The small claims track is the normal track for–
(a) any claim for personal injuries where –
(i) the value of the claim is not more than £10,000; and
(ii) the value of any claim for damages for personal injuries is not more than £1,000;
(b) any claim which includes a claim by a tenant of residential premises against a landlord where –
(i) the tenant is seeking an order requiring the landlord to carry out repairs or other work to the premises (whether or not the tenant is also seeking some other remedy);
(ii) the cost of the repairs or other work to the premises is estimated to be not more than £1,000; and
(iii) the value of any other claim for damages is not more than £1,000.
(Rule 2.3 defines ‘claim for personal injuries’ as proceedings in which there is a claim for damages in respect of personal injuries to the claimant or any other person or in respect of a person’s death)

(2) For the purposes of paragraph (1) ‘damages for personal injuries’ means damages claimed as compensation for pain, suffering and loss of amenity and does not include any other damages which are claimed.

(3) Subject to paragraph (1), the small claims track is the normal track for any claim which has a value of not more than £10,000.
(Rule 26.7(4) provides that the court will not allocate to the small claims track certain claims in respect of harassment or unlawful eviction)


(4) Subject to paragraph (5), the fast track is the normal track for any claim –
(a) for which the small claims track is not the normal track; and
(b)
which has a value –
(i) for proceedings issued on or after 6th April 2009, of not more than £25,000; and
(ii) for proceedings issued before 6th April 2009, of not more than £15,000.

(5) The fast track is the normal track for the claims referred to in paragraph (4) only if the court considers that –
(a) the trial is likely to last for no longer than one day; and
(b)
oral expert evidence at trial will be limited to–
(i) one expert per party in relation to any expert field; and
(ii) expert evidence in two expert fields.


(6) The multi-track is the normal track for any claim for which the small claims track or the fast track is not the normal track.
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Re: Where to get copy of precedent?

Postby beardsince1978 » Thu Oct 12, 2017 10:16 pm

Does that not agree with what I said? I plan to put in value "I expect to recover no more than £10,000" which would make it small unless judge thinks it is complex. I don't think it is complex but it is hard to decide how much to leave out in order to limit the amount of documentation and how much to put in so it is there to be relied on. Although most of the documentation comes later, after the track is decide (but track can change). The particulars of claim I've kept to just the form space and that has covered all the key points.
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Re: Where to get copy of precedent?

Postby MacadamB53 » Thu Oct 12, 2017 10:43 pm

Hi beardsince1978,

here's the guidance for how the courts decides whether a case should be allocated to the small claim track:

The small claims track – allocation and case management
Allocation
8.1
(1)
(a) The small claims track is intended to provide a proportionate procedure by which most straightforward claims with a financial value of not more than £10,000 can be decided, without the need for substantial pre-hearing preparation and the formalities of a traditional trial, and without incurring large legal costs. (Rule 26.6 provides for a lower financial value in certain types of case.)
(b) The procedure laid down in Part 27 for the preparation of the case and the conduct of the hearing are designed to make it possible for a litigant to conduct his own case without legal representation if he wishes.
(c) Cases generally suitable for the small claims track will include consumer disputes, accident claims, disputes about the ownership of goods and most disputes between a landlord and tenant other than opposed claims under Part 56, disputed claims for possession under Part 55 and demotion claims whether in the alternative to possession claims or under Part 65.
(d) A case involving a disputed allegation of dishonesty will not usually be suitable for the small claims track.

(2) The court may allocate to the small claims track a claim, the value of which is above the limits mentioned in rule 26.6(2). The court will not normally allow more than one day for the hearing of such a claim.
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Re: Where to get copy of precedent?

Postby MacadamB53 » Thu Oct 12, 2017 10:45 pm

Hi beardsince1978,

where do you get that a claim without a financial value will be allocated to the small claim track?

kind regards, Mac
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Re: Where to get copy of precedent?

Postby Collaborate » Thu Oct 12, 2017 10:52 pm

You did post earlier
What I would want is declaration judgement and injunction.
That is going to be quite obvious to the judge. Your claim is not for money.

But hey, you know best. What do I know after 26 years as a solicitor?

Factually complicated claims, or those that will require legal argument, will not generally be suitable for the small claims track, regardless of their financial value. You'll never get your case in the small claims track.
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Re: Where to get copy of precedent?

Postby beardsince1978 » Fri Oct 13, 2017 10:10 am

Situation is I have ROW. ROW was created with land transfer, same date. The was for bare plot of land as planning approval date is after land transfer and ROW creation. Clearly intention of parties was that ROW allow building materials in to build house. In other words long and tall vehicles. Current servient owner seeks to restrict access to small vehicles only. Part of problem is a tree at entrance which they refuse to allow to be pruned to clear tall vehicles. Is that not simple? Surely it would be fast track if not small track?

The value of the claim I would assess as follows. My plot actually has a frontage on to the public road via a wide verge. The original outline planning had the access direct to the road. The reason for the ROW was the Parish Council said it would cost £50k in today's money to cross the verge which they claimed they owned. This was believed hence the ROW which allowed the plot to get to an existing access and use that. The Parish Council don't own the land and never did. The land is manorial waste. I could apply for planning approval and install a new drive direct to the main road, similar to the original planning. Cost of that would be under 10k, hence the value of the claim is under 10k.

I have looked into creating a new entrance, the problem is that I would not get planning approval for a second entrance so I would need to show the original entrance was not acceptable i.e. lose the case. Hence I need to go the court route first.
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Re: Where to get copy of precedent?

Postby Collaborate » Fri Oct 13, 2017 11:51 am

beardsince1978 wrote:Situation is I have ROW. ROW was created with land transfer, same date. The was for bare plot of land as planning approval date is after land transfer and ROW creation. Clearly intention of parties was that ROW allow building materials in to build house. In other words long and tall vehicles. Current servient owner seeks to restrict access to small vehicles only. Part of problem is a tree at entrance which they refuse to allow to be pruned to clear tall vehicles. Is that not simple? Surely it would be fast track if not small track?

The value of the claim I would assess as follows. My plot actually has a frontage on to the public road via a wide verge. The original outline planning had the access direct to the road. The reason for the ROW was the Parish Council said it would cost £50k in today's money to cross the verge which they claimed they owned. This was believed hence the ROW which allowed the plot to get to an existing access and use that. The Parish Council don't own the land and never did. The land is manorial waste. I could apply for planning approval and install a new drive direct to the main road, similar to the original planning. Cost of that would be under 10k, hence the value of the claim is under 10k.

I have looked into creating a new entrance, the problem is that I would not get planning approval for a second entrance so I would need to show the original entrance was not acceptable i.e. lose the case. Hence I need to go the court route first.


I'm not going to argue the point further with you. If you're satisfied it's going to be small claims and therefore you'll get cost protection then go ahead and issue. I'm 95% sure you're wrong, but if it's so important to you why don't you pay a solicitor for advice, or just issue and hope for the best? You get orders for costs in the fast track - just not as high as multi-track cases.
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Re: Where to get copy of precedent?

Postby beardsince1978 » Fri Oct 13, 2017 1:11 pm

I'm not against paying for legal advice but I prefer to have a through knowledge before I ask questions, cheaper and I know the right questions to ask. Also, if it does end up in small claims it would make sense to represent myself since that is more the norm in small. I would accept that you are correct in that it might go fast. I can't see any hearing taking more that a day. Fast track would be ok too since it caps costs which is a comfort.
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Re: Where to get copy of precedent?

Postby ukmicky » Sat Oct 14, 2017 12:18 am

Situation is I have ROW. ROW was created with land transfer, same date. The was for bare plot of land as planning approval date is after land transfer and ROW creation.


Based on the above the planning permission came after the sale so unless it was sold as land with a development potential its simply been sold as a bare plot of land plot of land with a ROW . It being sold as a bare plot of land however may not restrict your access to small vehicles so it may not matter. .

How wide on the ground is this ROW.

Clearly intention of parties was that ROW allow building materials in to build house. In other words long and tall vehicles. Current servient owner seeks to restrict access to small vehicles only. Part of problem is a tree at entrance which they refuse to allow to be pruned to clear tall vehicles.


How is this a question about what court does it go to . Currently for you this does not go to court unless they are physically preventing you from using it .

How are they seeking to restrict the ROW or prevent you from cutting back the tree to the edge of the ROW. . Verbally saying you cant do this or that is not enough for you to sue them for damages because the law allows you to remove plant growth that is restricting your use of the easement and if this currently went to court the most a court would give is a judgement as to the scope of your easement. You would either get a court judgement saying you have the right or don't .You wont get money to open up a new access point.

As the law allows you to remove plant growth impeding your access your only question to this forum should be is my ROW restricted to vehicles of a certain size ? So can we see the full wording of the easement and do you have the sales brochures adverts etc for the land when it was sold with the ROW. If you do can you post and cover up things so we cant see where this house is.

If it were me and there is no restrictions mentioned as to what can use the ROW in the easement ,I would send them a letter saying something like.

As there are no restrictions in the terms of the easement (if there are not) restricting the size of vehicles that can use the ROW and as the the law grants the dominant tenement the ancillary right to cut back all vegetation restricting access to a ROW ,i intend to remove all plant growth impeding my access and I intend to do on so and so date. If you wish to prevent me from doing so you will need to seek a court approval for an injunction and a ruling as to the scope of my easement . Should you decide to take this to court I will defend my position in the court and would seek recovery of all my legal fees.

This would also end up much higher than a small claims court and would most likely get to a high court because the questions about the scope of an easement could require specialist knowledge and proper legal arguments beyond the scope of a small claims court or county court if neither you or the other party backed down.
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: Where to get copy of precedent?

Postby beardsince1978 » Sat Oct 14, 2017 10:12 am

Thanks for the advice. FYI there have been multiple letters going back and forth for over a year now. I wrote and told NfH it was my right to prune tree and initially suggested removing the end of the wall to move vehicle path away from tree to maybe reduce pruning needed. In latter letter I changed stance to I would be removing wall and stated I would be self-remedying to abate the nuisance (explaining what this legalise meant). I suggested he clarify his position with a solicitor and gave him a month delay for him to do so. NfH wrote back saying they had seen a solicitor and would be calling the police on criminal damage and said they didn't know why I keep going on about the wall since they don't believe the wall is theirs. Later, went month has well expired I remove part of this wall. NfH are away but one NfH gang calls police. I explain that NfH has written saying the wall isn't his. Police raise eyebrows at this but I show that wall at the far end is falling down. I said I assume that NfH doesn't want to pay to repair wall since wall is nothing to him. Hhe has another wall/fence at the boundary of his garden to ROW, this wall is ROW to verge. I say I'm will to accept the cost of repair if I get to do what I want. Police go away happy.

NfH then goes to solicitor who then wrote to me threatening court action, I presume because NfH gave him half a story because as well as the wall the tree is mentioned. I wrote back to NfH solicitor saying No to all of his demands and included a package of 9 documents, all letters between NfH and me since I can't imagine solicitor would write such rubbish if he had read them, plus plots of vehicle tracks into ROW to prove the issue. My letter, which runs to 10 pages, outlines the errors in what he had claimed in his page letter (most of it was rubbish!), my legal arguments, the history between me and NfH and 4 photos of the site and the issues. I also point out that he is referring to the wall as his client's wall yet his client has denied it is his wall - could his client clarify his position re this wall in a signed letter otherwise we will continue to take his last written position as his position.

Anyway, this goes on so I'll cut it short. 40 days later I get another daft letter from solicitor still claiming 2.5m high branch doesn't obstruct 4m high lorry, and offering to sell land of ROW so I can do what I want. Daft idea since that would then landlock NfH except for driveway meaning that all future new services would have to come in under driveway. I, probably stupidly, point this out and also say that as I have ROW it also seems to be akin to selling me my own watch. In this letter I give 14 deadline to respond otherwise will consider the matter dropped. I also point out that again he calls it his clients wall and I still have nothing to overrule client's written statement that it isn't.

17 days elapse so I make a start in finishing removal of the wall section that needs to go. Big friend of NfH comes over with NfH. I try to explain position but no one ones to listen. Loats of verbal abuse. Big friend physically manhandles me (aka pulls me away and shoves me). All of which is videoed by my wife. I call the police and show then video. NfH claims it is his wall. Police suggest I sort out whose wall it is before going any further.

Following this I write saying that I wish to calm things down. I promise not to touch wall until this sorted and explain that as the 14 deadline had passed with no answer or request for extension I assumed they had dropped the matter. I suggest mediation to which they at first agree and ask me to suggest something. I check and council has nothing so only possible is paid mediation, RICS seems most suitable and I track down experienced RICS who works out cheaper than going direct through RICS as no VAT with him, would still be ~£1000 per party though. NfH rejects this. I suggest a meeting with a neutral 3rd party as chair. That is due to happen but I can't see NfH being reasonable so I'm expecting it to end up in court. The police position and big friend rule out self-remedy so if NfH won't be reasonable court is only recourse left.

BTW after the violence I also wrote to NfH's solicitor saying I was willing to consider buying the ROW land (for a purely nominal sum). I said I believed that the aim was just to redraw ROW so as to exclude base of tree which is currently in ROW. I said I'm willing to go along with that as long as they keep branches pruned above 4m. I've had no response to that letter which was sent 2 months ago.

Sorry this is so long but "no good deed goes unpunished" :-).
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Re: Where to get copy of precedent?

Postby beardsince1978 » Sat Oct 14, 2017 10:24 am

FYI easement wording is vanilla, with and without vehicles, over and and along ROW. No mention of entrance/exit position. Land was sold as building plot with outline planning permission. The planning showed access to main road via route across verge. Parish council put kibosh on this route when the wanted £50k in today's money for the land (and actually they didn't own the land as I now know!). Vendor gave up 90m2 of his front garden for ROW instead to allow sale to continue. Vendor sold up a few years later.

ROW driveway must have been put in first to get building materials to site. You don't draw a concrete lorry, 26 tons when full, across grass do you. The is no evidence of a another route and why would anyone put down 2 driveways and then take one up after? Hence ROW must have been used for building lorries. To get building lorries in wall must have come down and this can be seen on the (dry stone) wall today as it is split into in 2 sections which look different.
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Re: Where to get copy of precedent?

Postby mugwump » Sat Oct 14, 2017 1:47 pm

Have you thought that the builders may have come to an agreement to have a wider access during the building?
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