Furious , anybody any advice other than a stiff drink?

Thanks everyone for your help with my situation. An email is winging it's way to my beloved council and my community council members have been copied. Not expecting much response but given it my best shot!

 

Quick update and will try to make it printable! Situation now terrible after torrential rain. Road shut to all but residents and not going to get anything done before 7th Jan earliest. Not had a proper response to my email which was pretty much on the lines clueless kindly gave me. Had phone call from a big cheese who basically told me "see you in court"...helpful! Now have some 20 odd year old Rhododendron and Azaleas waterlogged so not hopeful of them as there is little likelihood of the burn going down significantly between now and beginning of Jan. Could be worse (funny how there is always others worse off) there has been bad flooding all over my area including people's houses BUT what I'm experiencing wouldn't have happened if the Council had fixed the problem a month ago.Current situation is worse than the photos attached! Happy flaming Christmas.

 

I know its hard to believe, but this bit is good.

Firstly, there is no way anybody even remotely senior would phone you unless they were slightly phased. Secondly, it was a phone call. Nothing in writing. That means they are on the defensive. If they were as sure of their position as this chap tried to imply, he/she would have no qualms about putting it in writing.

Here's what I'd do now. Start by noting the key points of the conversation, and put that that in a new email. Same sort of structure as before, but with a few minor differences.

This time, politely say that further to your previous note, politely apprising the council of the issue, it is unfortunate that the council has shown an unwillingness to attempt to resolve the problem, to the point where the council has clearly stated its intention to challenge the dispute in court. "I had hoped that this matter could be resolved amicably, but it is now clearly apparent that the matter can not be resolved directly between the council and me. Regrettably I am left with no alternative but to submit the case to the small claims court to recover the total cost of rectification of this issue. As I am a reasonable person, and I have no way of knowing the level of authority of the individual within the council that phoned me, I hereby formally notify such and such county county council that if the matter is not resolved to my satisfaction by (stick to the same deadline date you gave in the previous note), I will register the case with the small claims court/instruct my solictor to pursue the council to recover the cost of rectification for damage cause to my property as a result of the council's negligence'.

Something like that. I've had a few brandies just now so I can't write properly, but if you remind me tomorrow I'll have another go at wording if you like.

 

Oh, just looked at your pics. I don't know what to say. I'd be gutted.

 

Tough luck there Silu , I'd also be well peeved with them conditions.

Good news you are getting some superb advice from Clueless ! I am saving this thread for reference Admin can we change his handle to "Rumpole of the GC"

 

Thanks again Clueless. Well the 7 days are up on Monday so will fire another email off to them today. Do I put without prejudice again? The only positive thing that the big cheese" did admit during the phone conversation was that he wasn't pleased or words to that effect that things hadn't moved quicker. The Council are "hiding behind" the power line and gas pipe scenario. Hell both were in situ on 25th NOV when I made the initial phone call. The slight snag I have is knowing whether I will loose as much as I think I will until about March. Being absolutely serious if I do loose all the Rhodies and Azaleas we are talking big big money to even attempt to replace. Hate to think how much it would cost to replace 2 species Rhodies which ARE a good 15 years old. talking 100s of £s each I'll bet. I will have to do some ready reckoning on this as the 2 horticultural companies I contacted have not been back in touch. Maybe I'd be best to contact the world renowned Rhododendron specialist garden centre (Glendoick)which is near Perth where many originally came from and see if they would be prepared to give me an estimate of replacement cost.In total there are 8 Rhododendron and 11 Azaleas affected.3 Sorbus likewise plus 3 lollipop fir trees(ghastly but were here when we moved and they stop people driving too much on the grass verge ). They are about 40 years old. Add to that the 1000s and now 1000s more Daffs and Snowdrops submerges due to the burn being so much worse plus countless large clumps of various herbaceous stuff as well I could be looking at more than a small claim!!!!. The "big hairy chestnut" could I afford to loose?....NO!
Obviously with bad flooding all over the place around here there was a chance the burn wouldn't have coped anyway BUT none of the affected plants would have been bothered if submerged for say a couple of days it's the length of time which is the key to my case IF I have 1.
Oh forgot to mention my basement is now flooded too but VERY reluctant to mention that as they will just tell me to make an insurance claim and prove the Council were responsible (could be very difficult) and "act of god" is ringing in my ears. If I make a claim then I could well find it difficult and very expensive to get insurance again...bit like not claiming for a car accident.Apart from the central heating boiler being in the basement which is ok (just) atm there is nothing of note down there, so intent to keep quiet.
I'm off to compose something but have already been told NOTHING will happen until 7th Jan earliest so pretty positive I will loose most of what I've mentioned and I will have to decide if I dare try to sue. Pity we in Scotland don't have the same on line facility as Kristen kindly advised about.
Again thank all for your excellent advice and words of sympathy. The big difference is that you all do care/have a passion for plants, if I had had say cars damaged or football memorabilia!!! I might have got a little more sympathy and action but "a few plants, so what?" is what I'm up against! Happy Christmas when it comes every body and hate to say it but it's torrential rain as I type...sigh!

 

Hmm, tricky. Realistically now I can see that no amount of sabre rattling will make anything happen before the 7th, mostly because it will be a much bigger job to do now than if they'd just unblocked the drain in the first place.

I think the strength of your argument is that although it is still possible that the drainage network could have been overwhelmed with all the rain we've had, flooding of your property was inevitable with the blocked drain, which you told the council about before the property flooded, and they did nothing. I.e. They knew in advance of the problem that their inaction would result in damage to third party property, yet they chose to take no action.

I think if it were me, I'd changing the wording slightly (didn't realise the 7 days were up on Monday, that's a cunning trick and one I've seen before, where they try to knock your schedule by contacting you just before the deadline). I'd still contact them, but instead of saying that you are definitely submit the case to the court on Monday, I'd tell them that as they had been notified in advance of the problem and did nothing, you hereby give advance notice that you intend to start legal proceedings to recover the cost of rectification for the damage caused, as soon as that cost has been estimated by a professional surveyor early in the new year. You will also be claiming all costs pursuant to the case. Something like that. It is of paramount importance that you are not seen to be backing down, so make sure you don't slip the deadline just because it can no longer be met. They are going to miss the deadline now, that's a certainty. With the slight rephrasing you are acknowledging that but saying that now it is just a matter of getting the damage professionally assessed before you proceed.

I still think that the best outcome is for the council to come and fix it asap, and scaring them with legal threats is the best way to nudge them on.

Oh and yes, always 'without prejudice'.

 

Thanks Clueless. To be honest now that I know for certain that nowt will be done before 7th Jan from my garden's point of view the damage will have been done by then. IF the culvert hadn't been blocked the burn would have coped with the huge amount of water as even now with it pelting the burn along part of my property is being a "good boy" and staying where it should!. This isn't the 1st time since we've lived here (nearly 10 years) that there has been flooding in and around the area BUT it IS the 1st time that water has encroached so far into my garden or more importantly stayed there for so long.It's the 1st time our road has been closed ever as far as I can find out to anybody other than residents which could be a good fact in my favour? I will phone round neighbours who have lived here longer than we have to check this 1 maybe THAT was why they were SO reluctant to close it!!!!! With the potential losses now much worse and easily run into £1000s I am strongly beginning to think I will go the whole hog and attempt to sue. I'll obviously take advice from my solicitor and find out the costs involved if I loose. Did I really want a summer holiday next year!? Off to compose something and again Clueless thank you SO much, gold star for all your assistance.

 

Phone round a few solicitors, some offer the first half hour's consultation for free. It sounds like a catch, but its just because different solicitors specialise in different types of case, so that half hour is usually enough for them to work out if they can handle your case for you or not, without tying you in.

Also, if you do go to to sue, speak to your solicitor right up front about costs, and make enquiries about insurance policies that cover the legal costs. Some solicitors will put you in contact with insurers. The idea is that if the solicitor believes he/she can win your case, but the battle will cost thousands along the way, the insurer guarantees the legal costs so that if you lose, the insurer pays the legal fees and if you win, the loser pays. Note that it is extremely important that you double check the costs situation, because you're in Scotland. In England and Wales the law is that the loser pays the costs. I know there are very subtle differences between Scottish law and that of England and Wales, so always worth checking.

Remember the number one rule of thumb in a dispute. Its like a game of chess. Knowing your own next move is obviously crucial, but it is ever bit as important to pre-empt the moves that you don't have control over too. That means, make sure you know the possible results/consequences of every action you take.

Good luck.

 

I'm sorry to hear your situation has got much worse Silu. Clueless as said, has given you very good advice. May I just add, keep pictures and dates as you may well need them. Also if possible take pictures of the plants that are under threat and your basement, it's all evidence should this have to be taken further.

 

Had to laugh as we have just waved bye bye to some council workers who arrived with sandbags, no idea who sent them, maybe the Council people I've had dealings with are that bit more rattled than I thought! They are sweet fa use in the basement as it's the water table which is causing the flood, and yes it is STILL raining. Obviously with what has been going on over the last month it's like adding another shot to a full glass so to speak! I've definitely seen the burn higher in the last 10 years and so has my neighbouring farmer on who's land the blockage is adjacent to, BUT not the road impassible. He's been here for over 25 years and known the area all his life. He doesn't remember this road ever being shut due to flooding before so perhaps that's a positive for my case.Yes it's a pest, all you kind people who have given advice, that our legal system is different. I'll be on the blower on Monday to my solicitor who I know personally and see if he knows the best way I should proceed. I do have pretty accurate notes of correspondence and good photos I think (hope). Certainly I have photos of the burn currently where it should be and where it isn't because of the council. I think I would be "weeing in the wind" to try and sue over the basement as proof the blockage was the sole reason would be very difficult I fear, however my garden is a different scenario. Only ever having been involved in a court case once before knowing something and proving it is a whole different ball game and yes I DEFINITELY need to find out the worst case scenario should I loose....all donations to........!
Nothing for it but to crack open a bottle of something to drown ha ha my sorrows. That said you have all cheered me up just by taking the time and trouble.

 

I wish you good fortune with this one too Silu.
what a great bunch of mates there are here on GC,
Jenny

 

I think this is key. The plants won't mind being submerged when the burn floods, because in a couple of days it would have receded. The blocked culvert makes it a different story