New member and this must be a first for this forum

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peacemaker
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Re: New member and this must be a first for this forum

Post by peacemaker » Tue Aug 13, 2019 8:41 pm

ukmicky wrote:
Tue Aug 13, 2019 12:25 am
peacemaker wrote:
Mon Aug 12, 2019 9:44 pm
I have a more general question on process re relation to costs, specifically if we issue court proceedings because the 'without prejudice' letter has been rejected.

In any one's experience, would an insurer still be likely to waive costs incurred to date to settle outside of court once proceedings have been issued?

Reason for seeking clarification is just for my own curiosity and knowing we're at an impasse, why would anyone comply with a 'without prejudice' letter if they know they can achieve the same (still removing the fence and not paying my costs) by settling once court proceedings have been issued.

In other words the other side could well be calling my bluff and sit back and simply wait for the letter of claim to come through, as Mr Sheen highlighted some time ago, without any risk of being liable for their opponents costs.

Given that technically we're still as the pre-action stage it does feel like a long and protracted process and it could only now be the end of the beginning, if that makes sense!


Dangerous game to play because everything is pre action until formal proceedings are instigated and if you play the game for to long that pre action stage can suddenly without notice become formal proceedings. Formal proceeding also start before the claimant is served with the notice so he needs to be careful if that’s what he is doing.

However to answer your question Pre action costs are recoverable at the courts discretion once a claim form is issued by the court (which as I said is before it is served on the defendant) and once it gets to that stage and barristers are employed etc the costs will spiral and provided the claimants side has followed the pre action protocol they will stand a good chance of recovering them .

Once formal proceedings have started rules also then apply and they can’t just say you win and walk away and will need to settle if they wish to end it and if they settle costs will be a factor of any settlement.

It’s actually quite complicated as to what costs can be claimed but normally if an offer to settle is made your side will be entitled to your pre action costs and any costs relating to any proceedings if it got that far..

If the offer to settle is done under part 36 rules which it probably would be if damages are claimed for substantial interference it gets even more complicated as some costs are fixed and dependant on many factors .

If both sides settle if there are counter claims both sides can ask a court to determine what should be borne by who .
Thanks for detailed response, we should find out soon what the next move is.

peacemaker
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Re: New member and this must be a first for this forum

Post by peacemaker » Sun Aug 25, 2019 8:39 am

Hello all. It’s been five weeks since the without prejudice letter was sent, which had a 28 day deadline, but I expect a minor delay as the paralegals were changed last week.

My instincts tell me the letter will not be accepted therefore the next step will be issuing the letter of claim.

Just a question on people parking on the private road if I may. I understand that neither myself or my visitors may park on right of way. Can I assume my neighbour can park on his private road so long as it does not cause an obstruction to my right way?

Moreover, does any visitor/patron to my neighbour’s property or business have the right to park on his road so long as not to cause an obstruction to my right of way?

No doubt there is an obvious answer to this question but I would just like to find out a bit more obout parking on private roads in general that are subject to ROWs.

Thanks

IdefixUK
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Re: New member and this must be a first for this forum

Post by IdefixUK » Sun Aug 25, 2019 9:13 am

peacemaker wrote:
Sun Aug 25, 2019 8:39 am

Just a question on people parking on the private road if I may. I understand that neither myself or my visitors may park on right of way.

Reply: Generally that is the case but in the Scottish case of Moncrieff v Jamieson it was found that parking on the servient land was permissible due to the exceptional circumstances of that case. I don't think that will apply to your situation.

Can I assume my neighbour can park on his private road so long as it does not cause an obstruction to my right way?

Reply: Yes.

Moreover, does any visitor/patron to my neighbour’s property or business have the right to park on his road so long as not to cause an obstruction to my right of way

Reply: Yes.

peacemaker
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Re: New member and this must be a first for this forum

Post by peacemaker » Mon Aug 26, 2019 7:08 am

Thanks!

peacemaker
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Re: New member and this must be a first for this forum

Post by peacemaker » Mon Aug 26, 2019 1:29 pm

IdefixUK wrote:
Sun Aug 25, 2019 9:13 am
peacemaker wrote:
Sun Aug 25, 2019 8:39 am

Just a question on people parking on the private road if I may. I understand that neither myself or my visitors may park on right of way.

Reply: Generally that is the case but in the Scottish case of Moncrieff v Jamieson it was found that parking on the servient land was permissible due to the exceptional circumstances of that case. I don't think that will apply to your situation.

Can I assume my neighbour can park on his private road so long as it does not cause an obstruction to my right way?

Reply: Yes.

Moreover, does any visitor/patron to my neighbour’s property or business have the right to park on his road so long as not to cause an obstruction to my right of way

Reply: Yes.
Just an afterthought, should there not be signage indicating that it’s a private road and people should not park on it. An ongoing issue is that any new visitors to our property are unaware that they’re not entitled to park on my neighbour’s road and we have to ask them to return to their cars and drive into our property. Obviously the situation is exasperated by the fence. On top of this there is the sign near our entrance advising visitors to park on the road. The one and only sign is for the benefit of my neighbour’s patrons. As you can imagine any of our new visitors are sometimes unclear where to park as a result of the sign as they might not be aware that my neighbour’s operates a business on his premises. You might be wondering why we might have so many new visitors but being the parents of young children we do have lots of people visiting with other children.

There have been several instances where my neighbour has been out filming our visitors within minutes of them either parking on the road or hanging over the imprecise boundary which has led to arguments. Before anyone says we should be vigilant we are but in reality I can not police the situation 24 hours unlike my over zealous neighbour who inflames the situation by filming people and threatening to the call police for no lawful reason. Most sane and civil people would simply ask for the car to be moved.

Putting neighbourly behaviour to one side, is it not reasonable to expect people to abide by rules if there is signage clearly stating that people should not park on the road. If not, is it my responsibility to police and enforce these rules even when I’m not there or my wife is at the rear of the property or in the garden and we’re unaware that a visitor has parked on the road?

I appreciate there probably aren’t any rules or regulations as it’s all private property but I would to understand specifically on the point of there being no signage and whether my neighbour’s actions are perfectly reasonable or not.

Finally, can I be done for trespass even if it’s my visitors parking on his road and could my ROW be invalidated as a result of my neighbour were he successful in winning a trespass case?

MacadamB53
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Re: New member and this must be a first for this forum

Post by MacadamB53 » Mon Aug 26, 2019 2:57 pm

Hi peacemaker,

I really would not give it any more thought - continue as you are.

what the neighbour hopes to achieve by filming your visitors on the rare occasions they park on his road is beyond me.

kind regards, Mac

IdefixUK
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Re: New member and this must be a first for this forum

Post by IdefixUK » Mon Aug 26, 2019 3:36 pm

The neighbour can individually sue the people who park on his land for trespass if he wants, but he'll get nowhere because by the time he manages to drag each individual to court they will have moved their cars...in any case what damage Are they causing?
You seem to be nicely getting under his skin if he is taking this sort of action in recording your visitors parking on the roadway, the cracks are beginning to show.
With a bit of luck he will soon start to choke on his own videotape!

Regards and happy families.
Stay super cool. Do not react.

IdefixUK
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Re: New member and this must be a first for this forum

Post by IdefixUK » Fri Aug 30, 2019 12:36 pm

Calvin&Charlie1 wrote:
Thu May 10, 2018 11:43 am
The gates propped up against the hedge to form a barrier are definitely his.
Much earlier in the thread you said the above.
I was wondering if these gates can be identified as the gates which once were at the entrance to your house.

How do you know that they are "definitely his"?

Regards

peacemaker
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Re: New member and this must be a first for this forum

Post by peacemaker » Mon Oct 07, 2019 3:50 pm

Hello all, quick update from me, before we can submit our instructions to the barrister for the particulars of the letter of claim to be drafted, we’ve had to obtain a court compliant report from a surveyor on the ground as a remote desktop one was inadequate.

Interestingly the diminution value has increased from 10% to 25% which, as you can imagine we would be seeking a settlement in lieu of an injunction, is in the six figure range.

No doubt the other side will see this differently.

peacemaker
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Re: New member and this must be a first for this forum

Post by peacemaker » Wed Oct 09, 2019 3:15 pm

Just an afterthought, let's assume the other side has legal expense cover but only up to the norm which seems to be between £50k - £100k which varies from one insurer to another.

As mentioned above we're looking at a claim of approx £100k in lieu of an injunction and if you factor in our legal costs of approx £50k the other side would need to approx £200k to indemnify themselves and their own legal costs of approx £50k.

Can i assume then that the other side might not even be able to proceed if they're solely reliant on legal expense cover given the fact that there probably isn't £200k expense cover available.

Is my logic correct in this instance please?

Collaborate
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Re: New member and this must be a first for this forum

Post by Collaborate » Wed Oct 09, 2019 5:19 pm

peacemaker wrote:
Wed Oct 09, 2019 3:15 pm
Just an afterthought, let's assume the other side has legal expense cover but only up to the norm which seems to be between £50k - £100k which varies from one insurer to another.

As mentioned above we're looking at a claim of approx £100k in lieu of an injunction and if you factor in our legal costs of approx £50k the other side would need to approx £200k to indemnify themselves and their own legal costs of approx £50k.

Can i assume then that the other side might not even be able to proceed if they're solely reliant on legal expense cover given the fact that there probably isn't £200k expense cover available.

Is my logic correct in this instance please?
Legal expense insurance covers legal fees, not damages.

peacemaker
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Re: New member and this must be a first for this forum

Post by peacemaker » Wed Oct 09, 2019 5:32 pm

Thanks and makes sense now.

ukmicky
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Re: New member and this must be a first for this forum

Post by ukmicky » Wed Oct 09, 2019 11:33 pm

In lieu of an injunction.

So you are happy to allow him to keep his fence for a sum of money
Any information provided is not legal advice and you are advised to gain a professional opinion

ukmicky
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Re: New member and this must be a first for this forum

Post by ukmicky » Wed Oct 09, 2019 11:39 pm

ukmicky wrote:
Wed Oct 09, 2019 11:33 pm
In lieu of an injunction.

So you are happy to allow him to keep his fence for a sum of money


If you win the court may not agree that this is something where damages should be paid out in lieu of an injunction (it being a simple fence )and grant an injunction instead and order damages to be paid of a much lesser sum.

Or if they did agree this is a case where damages are paid out in lieu of an injunction value the loss of use of the access much less than what you value it . I think your valuation to be a bit high as you will still have a ROW.
Any information provided is not legal advice and you are advised to gain a professional opinion

peacemaker
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Re: New member and this must be a first for this forum

Post by peacemaker » Thu Oct 10, 2019 10:08 am

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Last edited by peacemaker on Thu Oct 10, 2019 10:14 am, edited 1 time in total.

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