Assessing the council or highways agency's defence

Ultimately, whether or not the authority you're attempting to claim from has a defence under Section 58 is for the Court to decide. However, you can assess their defence yourself to see whether or not you think you could make a case. Always keep in mind that their defence might be quite robust and you might not win.

Armed with your FOI information, information about the scene, and your copy of the national code of practice, these are the key questions you need to ask in relation to your claim;

• Was the road given an adequate hierarchy classification based on its usage and location? Check the table and descriptions in Section 9 of the national code.
• Taking into account its hierarchy classification, or what you believe the classification should have been, was the road safety inspected at the recommended frequency?
• Was the road safety inspected at a proper speed? Judgements suggest that speeds of over 25mph are too fast for identifying defects in the road.
• Was there a driver and an inspector? Other judgements have suggested that an inspector cannot drive safely and look for defects.
• Had the authority already been told about the pothole before you hit it, perhaps even identified it themselves during a safety inspection? If so, did they repair it within the recommended time?
• If a safety inspection was carried out soon after your incident, was the pothole identified then?
• Did the location have a history of potholes being reported? If so, had the authority increased the number of safety inspections of the road?
• Was the pothole you hit not considered dangerous by the authority because it was not big/deep enough? (Note - generally, potholes less than 40mm deep are not accepted in Court as being dangerous to vehicles.) If so, do their standards compare to national recommendations?
• If the authority has adopted the national code, have they complied with it?

Whilst it is your decision whether or not to proceed any further, if you honestly answer "yes" to all the above, your claim is probably not going to succeed.

If there are any discrepancies, however, the best course of action is to write back to the authority or the claims handler, pointing out these discrepancies and including evidence in the form of paperwork and/or photographs. Inform them that you don't consider that they have satisfied Section 58. Making threats about solicitors and Court at this point probably won't help, and you might want to wait for their response first. Again, be very careful with what you write and/or say.

If you do find a discrepancy, don't assume they will now simply pay you. There could be a perfectly reasonable explanation for the discrepancy, or you might have mis-interpreted the information. They might even be happy to defend the discrepancy in Court.

If the authority still refuses you claim, you will have to decide how to proceed. Small claims are a popular and cost effective way of taking action for small amounts, and they can now be completed online at www.moneyclaim.gov Always keep in mind that you could lose the case and end up spending out more money. You might even want to take some legal advice at this stage.