Furious , anybody any advice other than a stiff drink?

Hee hee, it wasn't you was it Clueless!? yes I don't condone the thefts here either but... ditto slight chuckle. Maybe if the council had only taken 10 working hours (as estimated by 1 of their workers who actually did something other than walk about with a puzzled expression) instead of 35 days to sort 1 insignificant culvert, the thefts wouldn't have happened. We still have 2 enormous metal plates decorating the verge which must have cost a fortune. If the council don't get a move on I can see those disappearing as well if the thieves can get their hands on a machine which could actually lift them!
As advised by my solicitor I have sent an email to the head of Fife Council demanding under The Freedom of Information Act details which are important to my case as 2 emails politely requesting said information at least a month ago remain unanswered.

 

Oooh - great! I love it when they do that.

Perhaps you know this:
The law says:
''a public authority must comply with section 1 (requests for information) promptly and in any event not later than the twentieth working day following the date of receipt''
Be sure you can prove you sent the question and that they can reasonably identify you. Keep copies and all that. Check you haven't counted weekends and bank holidays, but if you can still count 21 working days then you can go for them. First, if you have written to a named council worker (the chief executive is best) you could first notify him or her that unless you have compliance within seven days then you will claim the following fee structure: £100 per hour of your time plus bank interest (e.g. for future writing enquiries, telephoning etc plus legal fees). When it's finished you can invoice the council and claim at the Sheriff's court if they don't pay. Second you could tell him he or she risks a (Criminal Law Act 1977) personal prosecution for committing an offence under section 77 of the FOI Act. You then have 6 months from the date they should have replied to lodge the complaint at the sheriff's court.

At the same time you can ask the Information Commisioner for help with the FOI breach:
Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire SK9 5AF
0303 123 1113

 

YYYYYYYYYEEEEEEEEEEEEE OMG, just back from counting days wildly in my diary. It's 30 working days since I requested information and 23 days since I reminded head of roads dept that he hadn't fully answered my questions! All emails have been copied to Fife Council Chief Exec! I sent original request as a reply to head of roads email so he must have got it.I sent the formal FOI on 21st Feb and not a dicky bird back so far. Funny how head of roads can give exact dates on certain matters but was delightfully vague (" in a timely fashion" were his words) for the critical dates. Both power companies involved have the info as I asked them but they can't give it out without Fife C. say so. 30 days ago I asked Fife C for the info or give me permission to get it from the power companies...zero reply.With health and safety being paramount/excellent excuse for delays these days...sigh I'd be amazed if there isn't plenty of documentation available.
Head of roads picked the wrong person to be a little Hitler to. He's already looking very stupid as he informed us our road "should be open" on 9th Jan...road tarmaced and opened on 12th Feb!
Not being a legal eagle I had no idea re your information Cacadores, you're a star I'll fire another email off quoting your great advice and perhaps if I can start to claim for all the time this is taking me they might get their digit out! I'm going to try and claim for all my family having to take a 9 mile detour because the road was impassable in 1 direction for nearly 2 MONTHS, it of course being the direction that both my husband and daughter go to get to work! This is on top of the losses in my garden which I don't know the extent of yet apart from the Snowdrops. Perhaps Fife Council would like to give us a couple of years of free rates! Apart from sporadic bucket collections we get nothing as we have our own water and septic tank.I very much doubt all the rates we have paid since moving here 10 years ago will have even scratched the surface of how much this debacle will have cost, appalling.

 

Well I wish you luck.

They might try another tack: half-answer you or answer you but vaguely. If you reply it's important to refer them back to the original question and the date you sent it rather than re-explain your original question - which they can use as an excuse that they have already answered it. I would write only to the Chief Exec now in order to make him personally responsible. It's up to him to pass it on to the right dept.

But you might as well prepare for the fact that they might not answer unless forced to. The Information Commisioner has some powers to force public officials to answer. In 2006 a member of the public asked for information about contract details that Fife claimed would hurt their commercial interests. The Information Commisioner forced them to reply (Decision 180/2006).
Apparently Scotland has its own commisioner:
The Information Commissioner's Office - Scotland. tel: 0131 244 9001
45 Melville Street
Edinburgh
EH3 7HL

About claims: claim your continuing expenses from them before they happen is best. So write to the Chief Exec. what damage they did to you in the past (destroyed your plants, breached FOI law - in separete letters) but also to write to tell them what chargable things (your time and fee structure, solicitors, hiring people to put in new plants, car detours etc) you are going to claim from them (with bank interest) in order to put the damage right in the future. That's so they can't later claim they could not reasonably have anticipated your further expenses. The letter might not have much effect straight off, but in five months (from when the problem began) time you can pull your copy of the letter out, send them an invoice and if they don't pay you, go to the sheriff.

 

With regard to interest, it is worth looking up 'statutory interest'. There are legal guidelines as to what you can charge (interestingly, a fraction of what certain perfectly legit companies charge). The point is to not to be seen to be unreasonable. At every stage it is essential to be reasonable so that if/when it goes to court, the other side cant claim otherwise.

 

Reasonable about assessing physically what property was damaged, yes. Resonable is giving a choice. The council apparently caused physical harm, broke the law, transgressed his rights and gave our poster no choice at all about suffering prolonged property damage and inconvenience. But in return, his suggestion to them to pay monatary expenses is lawful, it's a contract offer - a choice. The council has no obligation to agree to the monetary claim - it could just put the physical damage right themselves - which is what the poster would really like and which he reasonably suggested. But if they voluntarily choose not to restore to him what is his right, they are choosing in effect, to agree to monetary compensation and the terms which he sets, no matter how exorbitant, whereby they restore nothing physically but pay for it all later.

 

I'm not disagreeing with you Cacadores. I'm just saying that in being seen to be reasonable, that has to include monetary charges.

Let me give an extreme and unrealistic example just to explain my point. Lets say that someone accidentally bumps a car into my garden wall, knocking it down, and then for some reason it ends up in court. If I can say that I gave the person 28 days to agree to pay for the cost of rebuild, at, I don't know, £3000 (I don't know how much a wall rebuild costs), and when the person didn't pay up on time I started charging 'statutory interest', that would be reasonable. If on the other hand I said my charges just for speaking to the person are £100 per hour, and I want £10,000 for the wall, at the very least I'd expect to lose, at worst I'd expect to get done for contempt of court and sent home with a fine.

That's all I'm saying. I'm not saying that there is no scope for recompense, just that to giver yourself the best chance of winning a dispute, you simply have to be seen to be 1) Reasonable by anybody's standards and 2) Much more reasonable and cooperative than the party you are fighting.

 

I agree clueless ,if Silu can be seen to have made reasonable requests in a reasonable time frame, she will appear to the courts as a reasonable person, the council will appear unreasonable by not complying or even replying to her requests.

 

Silu,

Following this one with interest having just found it. Very similar situation here with water diverted off highway into private drainage ditches on land owned by local developer awaiting the day when he can get planning permission. He has no interest in maintaining ditches which block and flood, over his paddocks and run directly down into our garden. Garden flooded badly twice last year with virtual river flowing through and narrowly prevented house flooding. Highways people entirely un helpful - "we divert water off road -not our problem where it goes after that".

Private developer/land owner - "not my problem - I'm not maintaining ditches" but then won't let us to do anything with them. Every time we get heavy rain for an extended period out with torches trying to keep water flowing through ditches. And don't talk to me about pipe diameters! Have spent about 6 weeks now trying to contact developer who funnily enough doesn't return calls.

Just reading your post made me think that now is the time to take action. It may be that we have no case but we 'receive' all the water from about 400 metres of road which all is funnelled down into our garden because the drains and ditches can't cope! We now have trenches, ditches, water pumps and sand bags as fetching garden features with piles of turf where the lawn used to lie!

Thank you for giving us a prod!!

MrM

 

OK. You've got two things together which is fair enough.

First the claim for physical damage. He can choose to arrange the repair of the wall himself so to be fully reasonable, your first claim is for restoration of the wall as it was, so you give him, say, 10 days to explain how he will do it. That's reasonable. Don't forget you have a right to that wall and he has the obligation to restore it.

Second, he faffs about leading you to believe he's prevaricating. So you offer him a reasonable alternative: he can still repair the wall himself or you offer to sort it out for him so you send him three quotes, a deadline and notice you will charge interest if he's late. That's a free offer, helping him to fulfil his obligation and the three quotes make it even more reasonable.

Third: But what if you can't sort it out for him because he's the council and only the council can repair it but won't? Or if he starts breaking the law or refusing to communicate with you at all? You can reasonably infer that he is not willing to restore the wall in a timely manner and is now not acting accidentally, but is unlawfully damaging your rights. So you (and this is really bending over backwards to be reasonable) make him a third offer to help him. You, in effect, offer to help him by agreeing to wait for his repair and you agree to let him give you no information on condition that he will pay your fee schedule for time-wasting and all your costs. He's now got three free choices. What a lucky man he is and how reasonable of you. Then, by not repairing the wall and not paying for you to do it; he is tacitly choosing the more expensive deal. Offering three 'deals' like this to a council is perfectly reasonable because councils are corporations.

A fee schedule, giving the offender an alternative choice, designed to help him with his obligation to restore your rights is fully supported by magistrates.

In this example, a company was bothering a man with cold-calling. He offered them two reasonable alternatives, 1) (In parallel to restoring physical damage restore to him his peace and stop the calls or 2) Pay his fee schedule.
http://www.telegraph.co.uk/news/ukn...m-pays-out-for-wasting-businessmans-time.html
The company freely chose not to restore the man his peace and continued the cold calls, thus tacitly agreeing to his fee schedule. Then he sent them a summons to a magistrate and they had to pay his fee schedule plus costs.

I got interested claims for restoration of rights when the local Registrar of Births messed about with my daughter's birth certificate. They'd got the wrong details somehow and refused to correct it until I produced different ID. As soon as I realised she had a right to a birth certificate I offered them the choice: to correct their mistake within 30 days or pay my past and future costs plus interest according to a schedule I sent them. They refused to correct the certificate. So logically and tacitly they freely chose the alternative: to pay all my costs! When, eventually we got the birth certificate right, I put in my claim to the Home Office. They, cheeky monkeys, sent me a contract in return where they agreed to pay costs without bank interest if I agreed to make no more claims. They knew exactly what they were doing. I thanked them for their 'offer' and told them I was quite happy with our previous agreement and by the way I'm charging interest. They paid in full the next day.

You should choose the lowest quote. Contempt of court: That's if you insult the judge.

 

Is that actually going to wash? (Assuming that isn't your normal earning rate)

I would expect the other side to ask to see a tax return for proof of your earning's rate??

 

Look up the link - there's a man who just set his own rate. Thing is, infringing on someone's legal rights is a choice: no one is forcing them to infringe my rights: they can stop any time they like. All I'm doing is giving them the choice: if they want to take up my time, then I'll agree only if they pay my rate: it's up to them. Just as I can freely choose to pay a consultant £100 an hour if I want to, and if I don't want to, well, I don't consult him. What I can't do is consult him knowing his prices, refuse to pay, and then ask to see his tax return!

 

That's useful, Shiney.
Out of interest, are you talking about costs you incurred after you had sent the solicitors your fee schedule, when they still had a chance to put the 'damage' to you right, or was your first claim for costs done as part of your preparation for court?