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APPENDIX 3.12 Information about Individuals taking their own Private Action
(Extracted and amended from Leaflet produced by LB Southwark)
This approach can be used if you have been unsuccessful in resolving the noise problem by other means. It is an alternative course of legal action from that which Council Officials may take. It is often helpful to have a leaflet to help those contemplating such an action, an example of which is given below.
Getting Started
- You must advise the noise maker in writing of your intention to go to Court, giving at least 3 days' notice - the court will ask if you have done this.
- Sheriff Court's deal with these actions and can be contacted directly
- Go in person to the Court before 10:00 Monday to Friday. Ask the uniformed attendant for the Clerk's Office where you should ask for the Court Officer dealing with that day's applications.
You should take legal advice as to the strength of your case as, should you lose the case, you may have to meet the Defence legal costs.
Making an Application
A small fee is payable in order to pursue the matter. You will need to prepare your evidence to show how you and your household are affected, how frequently, for how long and at what times. Bring any witnesses with you and have your diaries copied to give to the court, preferably four copies for the three magistrates and one for the accused.
The [ JP?] will ask you questions, so may the accused, and you will have the opportunity of asking him/her questions on their evidence. Even after starting these proceedings, you should continue to keep a diary of the disturbances and keep copies of all correspondence you write or receive in date order and make notes of any conversations.
What Next
The court serves the summons by recorded delivery or by personal service and will advise you of a date to return to court, usually about 6 weeks. You must return to Court on this day. Check the lists inside or ask for help to find out which court room you should attend.
- If the accused admits causing the nuisance, the Court will hear the case on that day. You will normally be asked to make a statement in support of your claim.
- If the accused fails to attend and makes no plea by post, the case will usually be adjourned.
- If the Court is satisfied that the accused was served with the summons, it may, in some cases (although generally rare), decide to hear the case in his absence.
When you return to Court
You do not need to be represented in court by a lawyer. If you are however, you will have to pay as Legal Aid is not available for these actions. Local Neighbourhood Law Centre(s) may offer free assistance in preparing your case
Prepare your evidence to show how you and your household are affected, how frequently, for how long and at what times. Bring any witnesses with you and have your diaries copied to give to the Court. The Sheriff will ask you questions, so may the accused, and you will have the opportunity of asking him/her questions on their evidence. You should continue keeping a diary of the disturbances and keep copies of all correspondence you write or receive in date order and make notes of any conversations.
Likely Outcomes
- If the court is satisfied that you have proved beyond all reasonable doubt that a nuisance exists or is likely to recur, they will make an Abatement Order requiring the accused to cease the noise and/or prohibit its recurrence. The court may also impose a fine of up to £5,000, although smaller sums are more usual.
- You may, in addition, ask for reasonable costs e.g. for lost earnings, to be paid for bringing your case to Court. Any claim must be made before the hearing and any award is at the discretion of the Sheriff. A copy of the Abatement Order served on the accused will be given to you for your information.
Paying Costs
If you are unsuccessful, you may be ordered to pay the defendant's costs. The costs awarded may include any reasonable costs in defending the case, including legal costs.
If the Problem Continues
Return to the same court (before 10am) as soon as possible and apply for a "summons for failure to comply with the court order". There is no need to notify your intention to the person causing the noise. You will be able to start a prosecution for breach of the abatement order from which further financial penalties are likely to be imposed if the accused is found guilty.
Further Assistance
If you require assistance on court proceedings, the Clerk of the Court may advise you in person on a weekday afternoon; usually after the courts have finished proceedings.
Direct Negotiation with a Neighbour
This text is based on information contained in a fact sheet produced by Broadcasting Support Services to accompany the Channel 4 programme Cutting Edge: Neighbours' Quarrels.
Be Prepared
There are several ways to make it more likely that you and whoever you are in dispute with can sort things out - and some that will definitely make matters worse. This section sets out some 'do's and don'ts' that you may find it helpful to read through and think about before speaking or writing to the other side.
Think about what you want to say
- be clear in your mind about:
- what the problem is
- how it affects you
- what you want
- talk to someone who is not involved, who can help to work these out. You may wish to consult a local Law Centre, Citizens Advice Bureau or a solicitor
- decide whether it would be better to talk face to face or to write a letter. If you decide to talk face to face, you may find it helpful to write down what you want to say to help you order your thoughts and make sure you cover all the points you want to make.
Your Dispute is with a Neighbour
- talk to them face to face. This is much better than pushing notes through the door or banging on the wall
- try to choose a good time to make the first approach, when neither you nor your neighbour are busy
- arrange a suitable time and place, free as far as possible from distractions, so that you can talk about the problem properly.
Speaking Face to Face
- be calm and friendly. Say you are glad you have got together to sort things out
- tell your neighbour what the problem is, how you feel and how it affects you. Express how you feel but without blaming your neighbour. This will help you get your message across. For example, "When I hear your TV after 11.30 p.m. I can't get to sleep and I get angry' is much better than 'You're very inconsiderate with your loud TV, keeping me awake all night'
- listen to what your neighbour has to say in return: they have a point of view, even if you don't agree with it. By listening as well as talking, you help to build a good atmosphere. Problems are often solved when people feel they have been listened to.
Trying to Solve the Problem
- look for common ground. Even agreeing to differ is a start
- make sure that you bring all the issues into the open. Work on the easier issues first
- separate the problem from the person. Approach this as if you and your neighbour are getting together to solve a common problem. Two heads are better than one: be open to your neighbour's suggestion
- try to find a co-operative solution in which both you and your neighbour participate
- look at all the options before picking the best one for you both
- if you are unable to talk things through amicably with your neighbour, you may wish to try a community mediation service.
When You Reach Agreement
- make sure you know who has agreed to do what, and by when. It may be a good idea to write this down, and both sign it and keep a copy.
- agree a date to check how your agreement is working out
- agree how you will let each other know about any future problems.
Don't
- interrupt, shout or verbally abuse
- assume others have the same values as you do
- assume people are doing things just to annoy you
- imagine your neighbours know what is really bothering you if you have never told them
- retaliate: it will make things worse and put you in the wrong
- argue about exactly who did what - concentrate on what you want to happen in the future
- bring up things which have nothing to do with the present problem
- agree to solutions you think are unfair, just for a quiet life.
These tips assume there is no threatening behaviour or danger of physical violence. If there is, you should go to the police.
(Source: Resolving Disputes Without Going to Court - Scottish Courts Administration August 1996)
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