Letter Of Claim for death of cat now Court Claim received.

[BankFodder]

Also you haven't explained how it was that you didn't see the dogs. Where were you in relation to the dogs at the time? You said that once you were aware of what had happened you called the dogs – in other words you took control – but where were the dogs? How can you be certain that they didn't enter the property?

You better think about that now and explain it here.
You will certainly be asked about that in court.

[danyboy72]

thanks bankfoder,

ive just been going through the documents she sent me and have found the pedigree of the cat which says the claimant is the owner...so would this need to be removed: Paragraph 3.2.1 of the claim – it is not clear that the claimant is the owner of the cat.

i also believe the verge that i estimate to be 10 to 20metres wide maybe property belonging to someone else which is why the claimants mothers boundary fence is not next to the road...so if she does claim it is her property should she need to prove this??

also on the gate to the mothers property she has a sign saying "cctv surveilance" - so if my dogs where actually on her property she would have a recording of this? why hasnt she sent me the recording as evidence?

another thing that shes saying is wrong is that immediatley behind her boundary fence is a pond (directly in the direction of where the mother and boyfriend appeared from)..so if my dogs went onto her property they would have have to go through the pond...but they didnt and the claimants photos show my dogs were not wet...would this be benificial to my case?

i have attached a picture of the dilapidated fence ...it shows below the green line is the verge or possibly someone elses land. above the green line is her boundary with the dilapidated fence where you can see its fell down and continues to be on the ground to the right. the red arrow shows the pond immediately behind her boundary. and on the other side of the pond above the purple line shows a fence that she has to keep her horses in the field....would this be benificial to show that she has made no effort to keep her cats in and also shows that if my dogs did pass the boundary fence they would have to go into her pond?

i think the following needs to be changed:

Paragraph 3.3.2 of the claim – this is not correct and the claimant has no evidence that this is correct.

The defendants dogs were not on the private property. 
It seems that the cat had escaped/left to roam the countryside from the property belonging to the claimant's mother by means of a dilapidated boundary fence and then through dense undergrowth and was now approx 800 metres from the claimants property and now in a hedge line between a public footpath and a bridle path

 

Paragraph 3.3.2 of the claim – this is not correct and the claimant has no evidence that this is correct.

The defendants dogs were not on the private property. 
It seems that the cat had escaped from the property belonging to the claimant's mother by means of a dilapidated boundary fence and then through dense undergrowth and was now in an open field.
I believe that the dilapidated boundary fence belonged to the property from which the cat had escaped.
My dogs were not out of control. They were walking with me but then reacted in the way one might normally expect from dogs when a cat suddenly appears in front of them. it was the dogs instinct to chase.

 

paragraph 3.5.4 of the claim -once again, I did not see the confrontation. I only heard it. However I repeat that the confrontation did not occur on private land as alleged. It occurred in a hedge line approx 800m from the property after the cat had escaped the private property through a dilapidated boundary fence.
It is believed that the dilapidated boundary fence belonged to the property from which the cat escaped

 

also ive just remembered i have no witnesses but when the boyfriend was detaining me at the gate (where i tied my dogs) 3 people where coming down the lane and the mother went off to talk to them and she came back and said "be quiet now as these people have autism" which me and the boyfriend said ok then as they passed and walked off she smugly smiled and said in a sarcastic way "they are my witnesses"...would this be of any use?

Edited September 16, 2023 by BankFodder
edits

[BankFodder]

I've just edited some of your comments into the suggested defence which I posted earlier. Have a look. They are in red.

Also I have made some edits on your suggestions above.

You ask if the incident where she spoke to the people would be useful. It could easily be useful. You will have to explain to us how this might be useful.
I keep on asking you where you were in relation to the dogs and how come you didn't see what was happening – and you keep on not answering. It's getting a bit tiresome.
I'd like a written explanation please – not photographs

 

[danyboy72]

you keep asking where i was.

you asked me that on thread #120 and i have answered/explained that in thread #121 :

"the cat ran down that row of bushes/tress and the dogs chasd it (green arrow indicating direction). i was running behind but obviously cant keep up with the dogs and trying to get through the bushes trees is why i didnt arrive at the same time as them by the road which is marked in a red circle where it happened. "

 

also i dont know how the incident with the people would be useful as i have zero experience in going to court/how courts work/how witnesses etc work which is why i asked you if it would be useful as you would know more than me as you definitely have more experience in this sort of thing than me.

Edited September 16, 2023 by danyboy72

[BankFodder]

I understand very well where you were as the incident happened. What I want to know is where were you in the minutes before the incident. Where were the dogs? Did the cat appear in front of you? Did you only become aware of the cat after the dogs when after it?
That's what we want to know. That's what the court will want to know.

I understand very well that you probably have zero experience of going to court. I was going to suggest – and I do suggest now – that you make a court familiarisation visit. Make at least two or 3 separate court familiarisation visits. Read our court familiarisation guide

[danyboy72]

if you understood 'where i was'...why did you keep asking 'where is was'? ..anyway you have now changed it to 4 different questions to which i will answer.

What I want to know is where were you in the minutes before the incident = walking in the trees and bushes between the bridle path and footpath in the opposite field to the mothers property. the road separates the mothers property and the field opposite with the trees and bushes between the footpath and bridle path.

Where were the dogs? = in front of me in the bushes and the trees between the footpath and bridle path in the field opposite the mothers property.

Did the cat appear in front of you? = it must of, but i did not see it because of the bushes and trees and the dogs were in front of me so obviously the dogs saw it before me and as they are lower to the ground than me they had the advantage of seeing it before i did.

Did you only become aware of the cat after the dogs when after it? = yes

also how would visiting a court answer my question of as you have more experience with courts how the incident with the people would be useful ?

 

[BankFodder]

Thank you for the answer as to where you were just before the incident. You can be certain that if this goes beyond mediation and to trial, you will be asked exactly this and you need to have a very thorough explanation about it.
I'm going to make a further amendment to the suggested defence which I posted in green. The further amendments are in purple
After that I think that will probably be about it.

Suggest any amendments or any other comments. And then maybe you can post your final version here so that we know that we are all on the same page.

Once again, they seem extremely organised. You need to double check that you haven't received any of the paperwork that they claim to have sent you.
You are already going to be up against the claimant and two witnesses. You're going to have to be rock solid on your version of events because you don't seem to have much evidence to back up what you say.
Just to explain the case to you a little bit.

They seem to be alleging a trespass. I expect that they mean that your dogs trespassed on their property. However, it would only be the landowner or the land occupier who could complain of a trespass.
Also, a trespass must normally be direct and intentional. Trespass is really about the insult with the ownership or with somebody's rights over their land.

If the daughter was simply visiting or had no legal rights over the property then she would not be able to claim a trespass.
On that basis, there is no "cause of action" – meaning that there is no basis for her bringing a claim against you in trespass.
As I have said, they probably think that they are talking about trespass to land – and it hasn't occurred to them that the daughter doesn't have any rights against a trespasser.
However, there is another kind of trespass – trespass to goods. The cat amounts to "goods" – in exactly the same way that your dogs are "goods".
So I suppose that she could try to say that your dogs trespassed against her cat. However, trespass to goods must normally be direct and intentional as well because once again it is about the insult to the ownership of the cat.
In this case, I think it is beyond doubt that you didn't intentionally set the dogs upon the cat. The dogs got into a fight with the cat simply because they are natural enemies.

They should actually have bought the case in negligence on the basis that when you are walking your dogs you owe a duty of care to other people who might be affected by the way you look after your dogs. On that basis, it could be quite foreseeable that if a cat strayed into their path that the dogs would go for them. You might then have a duty to have prevented that and to have protected the cat or any other animal from suffering injury caused by your dogs.
Your failure to do this might be found to be a breach of your duty of care and therefore negligence.

So on that basis I think they have brought the one claim. However, in small claims the judges are very flexible and the judge may well recognise that the claim should have been brought in negligence and may decide to decide the case on that basis.

This is why in the claim that I have amended for you, I have pointed out to the judge that if the case goes against you, that the judge or to take into consideration that the owner of the cat was careless in allowing the cat to stray into the road and become a target for your dogs – or motorcars – or anything.

You mentioned that some neighbours had complained that they were sometimes forced to swerve around the cats which escaped from the land.
I think I asked you if you can get statements but I don't think you have addressed this point.

I'm asking it again.

To recap, your best points of your defence are:
that there was no trespass on the property – because your dogs didn't enter – and anyway it wasn't an intentional or direct interference by you.
That there was no trespass to goods because although there was a confrontation between your dogs and the cat, this was not direct from you and it was not intentional.
Therefore there was no trespass at all.

On the basis that the judge decides to consider the tort of negligence, you will need to bring evidence that you are entitled to walk your dogs off leash along that particular stretch of road. The arrival of the cat was completely unexpected. The cat was normally confined to the land belonging to the defendant's mother but somehow had escaped and that in fact it was the cat which was out of control – not your dogs.
As soon as you called the dogs to you, they came to you and allows you to attach the leash and to tie them to a nearby gatepost or something.

Tell us about the swerving.

Have a look at the amendments I have made and then copy the whole thing into a new post down below

Also, to respond to your question about visiting the court.

I think it's essential that you make a familiarisation visit. It's difficult to explain to you how beneficial this will be – but once you have done it you will start to understand.

It would be a good idea to do it even before mediation – assuming that you are not prepared to make compromises at mediation – but certainly after mediation (assuming that the mediation fails) it is essential that you make at least one – preferably three – familiarisation visits.

Just to add a quick note in relation to my suggestion that if the judge decides to consider it from a negligence point of view, when you are then asking the judge to consider that the defendant was herself negligent in the way she kept the cat under control and within the boundary of the property, you are suggesting that by her own negligence she has contributed to the incident and therefore she was "contributory negligent" and should therefore share in the damages award.

If a judge accepted this, the judge would try to make an estimate of the level of her contribution. If the judge agreed that she was maybe 40% responsible for the incident, then he would order you to pay the amount she was claiming reduced by 40% to represent her own level of negligence.

And I suddenly have a slightly more optimistic view of your chances. I have suddenly realised that all of their evidence relates to the the alleged trespass on the property.

However, she is not allowed to complain about trespass to somebody else's property. And also it is clear that even if there was an entry onto the property that it wasn't wilful and it wasn't direct.
This puts you in a much much better position than I had first thought.
I don't know why I didn't appreciate this earlier.

Tell us about the swerving – and can you get statements. This would be extremely useful for demonstrating the level of contributory negligence

[danyboy72]

i submitted it.

i selected mediation aswell - so hopefully it will go mediation and i'll offer the £300 as before.

[BankFodder]

Okay. We would have liked to have a final check of what you sent. Maybe you could post it here – but anyway, well done on getting in before the deadline. Let's keep fingers crossed.

Keep us updated

[danyboy72]

i just copied the time of timeline events of hers that were incorrect and pasted them and explained why they was incorrect.

the rest was what you put for the defence - thank you bankfodder

ive just remembered - i forgot to put i had photographic evidence of the dilapidated fence in the evidence section - can i take this to court with me on the day?

[BankFodder]

A shame that we didn't have a final version before you posted it up. We might have thought to remind you about this.

Yes, you will have to take it to court with you on the day – but you should send a copy of it to the claimant as well so that they have advance notice.


 

[AndyOrch]

Or submit it on a Supplemental Witness statement.

[Manxman in exile]

On 16/09/2023 at 15:52, BankFodder said:

Just to add a quick note in relation to my suggestion that if the judge decides to consider it from a negligence point of view, when you are then asking the judge to consider that the defendant was herself negligent in the way she kept the cat under control and within the boundary of the property, you are suggesting that by her own negligence she has contributed to the incident and therefore she was "contributory negligent" and should therefore share in the damages award.

If a judge accepted this, the judge would try to make an estimate of the level of her contribution. If the judge agreed that she was maybe 40% responsible for the incident, then he would order you to pay the amount she was claiming reduced by 40% to represent her own level of negligence.

Were you seriously suggesting that if the claimant hadn't "kept the cat under control" that the claimant could be contributorily negligent?

I'm not aware that the law requires cats to be under control.  

But I think dogs are meant to be under control?

[BankFodder]

What I am doing is looking for arguments to put which might help to reduce the damage in the fairly high probability that the claimant succeeds in their case.

This would be a prudent approach to take in any event – and I'm sorry that that notion seems to have escaped you.

And please don't start coming in with more fatuous comments that just are distracting and confuse everybody – especially people who are already sufficiently stressed about their positions.
It's not helpful and it is just barely tolerated by the site team

[FTMDave]

Any update here?

[dx100uk]

blimey CAG gave all that FREE help over +6mts and +100 posts and they never even bothered to comeback...