25 February, 2010
This case, in which Forbes represented the Defendant, highlights the common difficulty encountered by Councils where Claimants fail to properly identify the site of accidents in pre action correspondence.
The Defendant received a letter of claim alleging a tripping accident and attaching a series of photographs. The photographs were of a poor quality and did not identify the location of the defect. In response a map was sent to the Claimant's Solicitors. The map was returned with a section of the street highlighted and the note "somewhere around here" marked upon it.
Despite attempts by the Defendant to locate the defect, this proved impossible and a request for better photographs and/or a joint inspection was made to the Claimant's Solicitor. This request was not acknowledged and weeks later the Defendant was advised that an application for pre-action disclosure had been made.
At the hearing the Defendant successfully argued that without pinpointing the exact location of the defect, a decision on liability could not be made. In dismissing the claim, Deputy District Judge Turner remarked that it was not enough for a road name to be given, the exact defect must be identified in order for a decision to be made in respect of liability. The claimant was ordered to pay the Defendant's costs of the application.
The Pre-Action Protocol states that the Claimant must provide sufficient information for the Defendant to assess liability before the protocol period commences. Disclosure is given in support of a denial of liability and, without the exact location being identified this can not be done. Where non compliance is encountered, subsequent applications for pre action disclosure can potentially be successfully resisted.