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Heating and cooling: Smoke Nuisance – is wood wood?

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  1.  
    If you do put the letters in your disclosure you would have to make sure somehow that the other side do not leap upon flawed statements in the letters as evidence for them i.e. statements that the 'wood is dry' when it was not properly tested. Quite how to do this, perhaps your solicitor would know or otherwise do you have to contest in court each and every incorrect statement by the council that is used by the other side.

    I would second what HB said above NEVER send original documents only copies.

    You should ask your solicitor about the risk of your case becoming Statute Barred. It is my understanding that any time limit starts from the time you cease to take action, that is they can not get the case to fail due to lapsed time whilst proceedings are in process, so delaying tactics will be annoying but should not make the case fail.
    • CommentAuthordb8000
    • CommentTimeOct 14th 2015
     
    Hi

    Mikeeeee - you are subject to the rules of disclosure. You have to have searched your papers/emails etc for all relevant material, whether it harms your case or benefits it and you must disclose it to the other side unless it is protected by privilege.

    If you hold something back and that is discovered by the other side or the judge at trial, you will be in trouble as the assumption will be made that you can't be trusted.

    Your solicitor must guide you through this and the other tactics as he/she is the only person with a whole view of your case.

    Don't worry about being statute barred. The time limit stops running when you issue proceedings. Plus since nuisance is on-going, a fresh cause of action arises each time it occurs!

    I'm not surprised if its 18months between issue of proceedings and trial. That is common place especially if there is expert evidence too.

    Dave.
    • CommentAuthorMikeee5
    • CommentTimeOct 16th 2015 edited
     
    Thanks for the information Dave. My solicitor has now said that all emails and letters to and from the LA should be in the disclosure. Hopefully the judge will take them into account and see what a bad service we have had from the LA and ombudsmen. I guess this also means I need to disclose the information that I have received this year from DEFRA regarding my LAs duty under the Environmental Protection Act 1990 and the representatives emails from one of the companies that tests stoves for DEFRA regarding recognised standards for testing moisture content.

    Mikeee
    • CommentAuthortony
    • CommentTimeOct 16th 2015
     
    And this thread!
    • CommentAuthorsnyggapa
    • CommentTimeOct 16th 2015 edited
     
    wasn't there some stuff from the other side from the expert witness that you wanted disclosed? if so, it is worth asking for that...
    •  
      CommentAuthordjh
    • CommentTimeOct 16th 2015
     
    Posted By: snyggapawasn't there some stuff from the other side from the expert witness that you wanted disclosed? if so, it is worth asking for that...


    Posted By: db8000If you hold something back and that is discovered by the other side or the judge at trial, you will be in trouble as the assumption will be made that you can't be trusted.


    Is it better to know what the expert said now or to find out at trial and discredit the others?
    • CommentAuthorMikeee5
    • CommentTimeOct 20th 2015 edited
     
    <blockquote><cite>Posted By: snyggapa</cite>wasn't there some stuff from the other side from the expert witness that you wanted disclosed? if so, it is worth asking for that...</blockquote>

    Yes there is Snyggapa, it is going in the bag of mashing with the rest of the information.

    I've been to court today for a case management. First time in court, wasn't as bad as what I thought it was going to be. The judge has set a trial window for March 2016, but may bring it forward if possible. He has given the other side permission to rely on their experts report, which is very much based on the Carbon Monoxide. He has ordered a site meeting for both experts and to prepare a joint report. We're hoping that recommendations to alter the chimney and keep smoke to a minimum will come out of this joint effort. The judge said that their expert will have to take a look at the whole picture including the videos of the smoke coming downwards. I think it would be in my neighbours best interest to carry out any recommended remedial work, they stand to lose £60k if it goes to trial and it goes our way!!!

    Mikeee5
    • CommentAuthorborpin
    • CommentTimeOct 20th 2015
     
    Be wary of not going to trial. Without a court verdict, anything agreed is difficult to enforce and you would need to start the process all over again if they reneged on promises. Once a verdict is in place, contempt of court comes into play and that is a very powerful tool. Folk often try to avoid a court case by promising to do things and then not doing them and on the basis of what has happened I suspect that may be a tactic they might try.

    As a matter of interest, what is the offence - civil or criminal that they will be tried for?

    If you did press ahead, there is a chance they plead guilty so saving themselves money but you then have the verdict on your side. When they start to bargain then you know you have them by the short and curlies.
    • CommentAuthorborpin
    • CommentTimeOct 20th 2015
     
    Oh and which court?
    • CommentAuthordb8000
    • CommentTimeOct 21st 2015
     
    Posted By: borpinBe wary of not going to trial. Without a court verdict, anything agreed is difficult to enforce and you would need to start the process all over again if they reneged on promises. Once a verdict is in place, contempt of court comes into play and that is a very powerful tool. Folk often try to avoid a court case by promising to do things and then not doing them and on the basis of what has happened I suspect that may be a tactic they might try.

    As a matter of interest, what is the offence - civil or criminal that they will be tried for?

    If you did press ahead, there is a chance they plead guilty so saving themselves money but you then have the verdict on your side. When they start to bargain then you know you have them by the short and curlies.


    If the other side offer to carry out the remedial works and mikeeee still pushes on to a trial, he runs the risk that he has to pay the costs of both sides for everything done after the offer! It's part of the courts costs powers to encourage settlement.

    It's a civil case if he's had a case management conference. It's generally local authorities that bring criminal prosecutions and we know they've not acted.
  11.  
    If they offer to carry out the remedial works be careful what you agree to. Your solicitor should draw up an agreement with time scales and you want the problem solved not the remedial works. So if they offer to do the works suggested by HETAS and you agree to this and it does not solve the problem then you are probably back to square one as they have done their part and you still have the problem.

    In your place I would be wanting something on the lines of - 'such works to prevent the pollution caused by the downfall of smoke and products of combustion from the chimney and until such time the wood stove will not be used'. I would not want the works specified because once done that's it, and if the problem persists you can start again. And I would also try to get some cash to cover your costs, but that may be more difficult.

    Ask your solicitor, but if they offer remedial works can the case be put on hold until the works are done and if they fail to resolve the problem the case then resumes without having to start again? In other words can any works offered be done under a court agreed attempt at settlement?
    • CommentAuthorCWatters
    • CommentTimeOct 21st 2015
     
    Perhaps ask for your/an expert to design and warranty the remedial works?
    • CommentAuthorMikeee5
    • CommentTimeOct 21st 2015 edited
     
    Tricky one isn't it! The problem here is two-fold. 1 my neighbours are producing much more smoke than is expected for a DEFRA exempt stove and 2 the chimney is failing to carry away the products of combustion. Perhaps by lifting the chimney it will help when the stove is being run correctly, but if they go back to chucking their crap on after the court case we could be back to square 1. We had an agent for the solicitor represent us yesterday and she wasn't very well versedwith the facts. She should have told the judge HETAS have carried out an inspection of the installation and have recognised there is a smoke nuisance problem compliant or none compliant.
  14.  
    Posted By: Mikeee5We had an agent for the solicitor represent us yesterday and she wasn't very well vursed with the facts. She should have told the judge HETAS have carried out an inspection of the installation and have recognised there is a smoke nuisance problem compliant or none compliant.

    That is worth a complaint to the solicitor and suggest he/she writes a letter to the court to clarify the situation. It is more than unfortunate when someone who is not versed in the case or has not done their homework represents you in court as the misrepresentation or failure to comment on particular circumstance can cause you to loose the case!!:sad::sad:
    • CommentAuthorMikeee5
    • CommentTimeOct 21st 2015 edited
     
    Well said Peter. My wife was fuming when we came out of court, she wanted to get straight on the phone to the solicitor. The agent knew nothing about the case, the opposition walked all over her! There was quite a few things said where she could have gave a good come back that could have influenced the judges decisions.

    We had a second report from the neighbours witness emailed to us yesterday just before we set off for court, we hardly had chance to look through the document before we had to leave for the court appearance. The agent said she hadn't seen the document!

    My none smokey neighbour has been around to my house this evening, he knocked on the back door and as I opened it the fumes flooded in again. He said he has had fumes in his property again this week.
    • CommentAuthortony
    • CommentTimeOct 21st 2015
     
    Get him to recorded all in stances in a diary in a file shared with you
  17.  
    Posted By: Peter_in_Hungary
    Posted By: Mikeee5We had an agent for the solicitor represent us yesterday and she wasn't very well vursed with the facts. She should have told the judge HETAS have carried out an inspection of the installation and have recognised there is a smoke nuisance problem compliant or none compliant.

    That is worth a complaint to the solicitor and suggest he/she writes a letter to the court to clarify the situation. It is more than unfortunate when someone who is not versed in the case or has not done their homework represents you in court as the misrepresentation or failure to comment on particular circumstance can cause you to loose the case!!:sad:" alt=":sad:" src="https:///newforum/extensions/Vanillacons/smilies/standard/sad.gif" >:sad:" alt=":sad:" src="https:///newforum/extensions/Vanillacons/smilies/standard/sad.gif" >

    The complaint should of course be in writing - or if you have already phoned about the issue then a letter 'confirming our phone call' so that it is documented
    • CommentAuthorMikeee5
    • CommentTimeOct 22nd 2015
     
    We've just done it by email Peter. I wish I had been sat next to her yesterday, perhaps I could have given her some guidance if it was allowed.
    •  
      CommentAuthordjh
    • CommentTimeOct 22nd 2015
     
    Posted By: Mikeee5I wish I had been sat next to her yesterday

    Probably just as well you weren't. If it was me I would either have had a heart attack or else got arrested for throttling her!
    • CommentAuthorTriassic
    • CommentTimeOct 22nd 2015
     
    Maybe you need go write a crib sheet listing the main points, along with references, for those representing who are too idle to actually do any preparation.
    • CommentAuthorMikeee5
    • CommentTimeOct 22nd 2015
     
    I did Triassic, she took a quick look at it and discarded it. We had a 20 minute chat with her before we went in. She said she had been rushed off her feet all morning and hadn't had much time to go through any of the documents including the report that had been emailed to us 6 hours before the meeting.
    • CommentAuthorTriassic
    • CommentTimeOct 22nd 2015
     
    I hope your not actually paying for such poor service, I could do better and I've only read this thread. Does she not realise the importance of this case.
    • CommentAuthorMikeee5
    • CommentTimeOct 22nd 2015 edited
     
    She seemed quite sympathetic when we talked to her but she knew nothing whatsoever about the facts. I think she was just acting as a messenger, just said what she was told to say. We've told the solicitor we need some continuity with representatives so they know what they are talking about. If we lose this now it will be down to the lack of help and knowledge from professional people!

    I have picked up on something in the oppositions 2nd expert witness report. He has mentioned down draught and mentioned a cure by raising the chimney. Perhaps this guy will take note of the high trees. He's not HETAS registered, has quite a few letters after his name though.
    • CommentAuthorTriassic
    • CommentTimeOct 22nd 2015
     
    What letter after his name, are they appropriate to his area of expertise, or is he a well meaning mate of your neighbours?
    • CommentAuthorMikeee5
    • CommentTimeOct 22nd 2015
     
    I bet Steamy knows him :wink::wink:
  26.  
    Posted By: Mikeee5I have picked up on something in the oppositions 2nd expert witness report. He has mentioned down draught and mentioned a cure by raising the chimney.

    Yup - that would fix the problem, I would suggest starting with 1 meter and if the problem is not solved then add another meter and so on until fixed.
    • CommentAuthorMikeee5
    • CommentTimeOct 23rd 2015
     
    There is a guy in the next village to me who has doubled the height of his bungalow with his flue because it was affecting his neighbour. That's what is going to be required here Peter. It's just a shame that it's going to take a court order to point it out. Like I've said before, there will be no winners here my friend. Sad times .

    Mikeee5
    •  
      CommentAuthorSteamyTea
    • CommentTimeOct 23rd 2015 edited
     
    Posted By: Mikeee5I bet Steamy knows him
    I know many strange people, some are good, some are bad. I like the bad ones :wink:
    • CommentAuthorMikeee5
    • CommentTimeOct 23rd 2015 edited
     
    I've dropped you an email Steamy. This guy does lectures on Carbon Monixide and PM.
    •  
      CommentAuthorSteamyTea
    • CommentTimeOct 23rd 2015
     
    Is he the guy that used to be at Reading University, think I have read one or two things he has done.

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