Court procedure question

Court procedure question

Postby beardsince1978 » Sun Oct 29, 2017 3:51 pm

Hi,

I guess this could go in any forum but as ROW is my interest I'll post it here. It a question for any solicitors here I guess.

I understand that going to court involves issuing a claim. With that claim form is the "Particulars of Claim" which gives a summary of the case and what you are claiming. The defendant then either admits, partial admits or files a defence. So particulars of claim needs to be compelling but also not too long.

What I'm confused about is statement of facts, chronology, witness statements. I understand what these are but are they fixed documents or do they evolve. For example, say I put in the statement of facts "I own right of way.....". Defendant says "no you don't". When I wrote statement of fact I thought "I own right of way...." would be accepted as fact, as it hasn't I now need to include proof of this so for example I may need to get a bank statement showing a sum of money I paid for the ROW etc.. I can't see how it works unless either documents evolve which each side showing the other its hand and commenting on the others claims, or throwing everything including the kitchen sink into documents just in case the defendant comes up with some story that is so daft you never thought to include proof.

Thanks
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Re: Court procedure question

Postby ukmicky » Sun Oct 29, 2017 6:29 pm

You are taking someone to court and this needs to be taken seriously . It’s not like on the telly where one side ambushes the other side with some evidence and walks out the winner two minutes later. You need to provide all material facts that you will be relying on in court. If your statement of case is very weak a case can be thrown out before it gets to a full hearing . You don’t need to provide your complete legal argument but will need to provide the evidence you will basing your legal arguments on such as land registry documents etc. Yes in court things can evolve through legal arguments but unless you can provide a good reason why completely new evidence was not presented to all parties prior to the case the other side and the court will not be happy.

If this got to court and it was found you held back on something important which if it had previously been revealed would have caused the other side to throw in the towel before it got to court and save the courts time you can be held liable for some or all of the legal costs ,including those of the other party.


It’s quite simple really, you have your case and so may the other and boths sides must be given time to look at the evidence . If your case is good it will be hard for the other side to provide a legal argument against it that will hold up in court.

This is also why the courts prefer people to seek mediation so both sides can look at each others evidence and then make informed decisions as to whether the case really needs to get to court if one side has compelling evidence the other side were unaware about or if both sides have a case where a compromise can be agreed.

If this about an easement I take it there is a entry on the charges register at the land registry. A receipt showing one was purchased does not make a legal easement only one under equity..
You should always seek proper legal advice before taking someone to court as it can be very expensive exercise if you get it wrong and lose . Even the winners of the legal arguments can come out a loser if things are not done correctly and they have to bear a proportion of the legal costs.
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: Court procedure question

Postby despair » Sun Oct 29, 2017 7:35 pm

Have you very carefully checked all mortgages,credit cards, insurances, union memberships for legal expenses cover
You may have it and not realise

Hand the problem to them
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Re: Court procedure question

Postby ukmicky » Sun Oct 29, 2017 8:32 pm

I just realised what this case is about . You need proper legal advice and you would probably need legal representation in court especially If the county court pushed this up to a high court


Before you take this to court you need to firstly decide

1. What is your cause of action and your issues of fact (your cause of action must be one which is recognised in law)

You also need to send a letter before action to the servient owner explaining your cause of action by including all your issues of fact. Any evidence you have relating to your issues of fact must be disclosed .You must then give them time to reply.

You also do understand the court can send this straight to the high court if the legal arguments are complex which they may we’ll be. And if it goes to the high court you will be talking thousands
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: Court procedure question

Postby beardsince1978 » Sun Oct 29, 2017 9:17 pm

Legal insurance I have checked. The site is currently a self-build building site as such has site insurance which doesn't cover this. Likewise home insurance just cover my home, not this site. Catch22 'cos site can only have site insurance, not home insurance as not built. Do any credit cards offer insurance that would cover this? Cover for purchases but ROW disputes?

Useful info on what I need to include. A helpful pointer. I need to focus on proving my legal argument and include everything for that. I guess my concern is that I focus so much on proving where my case may be weaker and thus reveal what I think is weaker to the other side. It sounds like I should include evidence I may need, state facts but limit my argument to what I think are the strongest points and which should prove the case on their own. It's a skeleton argument isn't it? I can add to it in response to the other side's argument can't I? I would hope so as I can't see how you cover every fact the other side might dispute without wasting a lot of time proving something the other side didn't intend to dispute as a fact. BTW this would be facts that have been put to the other side is various letters and they have not disputed them then.

The ROW is in the land registry and that applies no restrictions. Tried mediation. Other side refused formal paid mediation as too expense since they weren't about to change their minds (their words). We had a meeting chaired by independent 3rd party (councillor) for free (-ish). They didn't change their mind....

Yes I probably will get legal advice. I want to be clear in my own mind first though, cheaper if I know before hand as less time spent explaining stuff to me and also I come with answers to any points my solicitor might put to me.

I understand the costs. I don't like them but I don't see that I have any choice. My options are a) put up with it, ruining the next N yrs, b) sell up, but you can't sell a house with a ROW dispute and who would buy next to NfH, c) go to court. As I have spent £100k on the house already and haven't finished then I really don't fancy a). b) if I could, is likely to leave me out of pocket once discount for NfH is applied so c) seems the only option. c) I'm telling myself is just an over run on the house costs.

If it did go to high court can you revise the claim or is that fixed? In light of Raymond v Young [2015] if it goes to high court I would be tempted to add damages in if I could.
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Re: Court procedure question

Postby Collaborate » Mon Oct 30, 2017 8:52 am

beardsince1978 wrote:Legal insurance I have checked. The site is currently a self-build building site as such has site insurance which doesn't cover this. Likewise home insurance just cover my home, not this site. Catch22 'cos site can only have site insurance, not home insurance as not built. Do any credit cards offer insurance that would cover this? Cover for purchases but ROW disputes?

Useful info on what I need to include. A helpful pointer. I need to focus on proving my legal argument and include everything for that. I guess my concern is that I focus so much on proving where my case may be weaker and thus reveal what I think is weaker to the other side. It sounds like I should include evidence I may need, state facts but limit my argument to what I think are the strongest points and which should prove the case on their own. It's a skeleton argument isn't it? I can add to it in response to the other side's argument can't I? I would hope so as I can't see how you cover every fact the other side might dispute without wasting a lot of time proving something the other side didn't intend to dispute as a fact. BTW this would be facts that have been put to the other side is various letters and they have not disputed them then.

The ROW is in the land registry and that applies no restrictions. Tried mediation. Other side refused formal paid mediation as too expense since they weren't about to change their minds (their words). We had a meeting chaired by independent 3rd party (councillor) for free (-ish). They didn't change their mind....

Yes I probably will get legal advice. I want to be clear in my own mind first though, cheaper if I know before hand as less time spent explaining stuff to me and also I come with answers to any points my solicitor might put to me.

I understand the costs. I don't like them but I don't see that I have any choice. My options are a) put up with it, ruining the next N yrs, b) sell up, but you can't sell a house with a ROW dispute and who would buy next to NfH, c) go to court. As I have spent £100k on the house already and haven't finished then I really don't fancy a). b) if I could, is likely to leave me out of pocket once discount for NfH is applied so c) seems the only option. c) I'm telling myself is just an over run on the house costs.

If it did go to high court can you revise the claim or is that fixed? In light of Raymond v Young [2015] if it goes to high court I would be tempted to add damages in if I could.


The kind of "helpful pointer" you need is a sit down with a lawyer and paid for, written advice. Advising someone on constricting particulars of claim (more than you have been advised so far in this thread) in a forum such of this is impossible, at least from someone who knows what they're talking about.
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