A former councillor trying to win back his seat at the Surbiton Hill byelection has launched a legal action against a campaign rival.

Conservative candidate Nick Kilby has instructed solicitors Carter Bells to issue a letter to Liberal Democrat rival John Ayles over claims made in campaign literature.

The spat centres on plans for a new primary school on the old Surbiton hospital site.

A leaflet, which the Lib dems stand by, posted in the Oakhill ward suggested Mr Kilby wanted to build on care home Newent house and “kick out” the elderly residents – a claim he insists is untrue and damaging.

It stated: “The Conservative candidate in this campaign has been a leading opponent of the new school and a backer of their own nonsensical plans.

“Why on earth did he want to stop a school in his own ward, or to kick out elderly people out of a home and see a valuable community asset sold off?”

The legal letter, issued on Thursday morning, said Mr Kilby had never been opposed to a new school in the area and has “consistently been in favour of the provision”.

It also claimed Mr Kilby has “never articulated his support in word or print for any proposal to sell off any community asset or old people’s home”.

The letter goes on to demand the Lib Dems stop posting the leaflets and write to Oakhill residents retracting the allegations or face litigation.

In April, Tory councillor Dennis Doe wrote to the Surrey Comet suggesting possible alternative sites for the primary school which include building on Newent House site.

Lib Dem byelection agent Roger Hayes, who co-authored the leaflet, said he stands by what was written.

He said: “Everything is properly researched and you can be sure we won’t be writing to the residents. This leaflet was just telling people the truth.

“This is a cynical campaign tactic because he knows he’s on a sticky wicket.

The warring candidates go to the polls this Thursday along with Katie Hill, Labour, Paul Pickhaver, Christian People’s Alliance, Chris Walker, Green, and independent candidate James Riding.

A spokeswoman for Electoral Commission said they would not be investigating the claims as they do not regulate campaign literature.

She said: “It is illegal to publish false statement about another candidate that could adversely affect the election which would be dealt with by police.

“If it is a personal defamatory attack it would be dealt with in civil court.”

Conservative leader Councillor Howard Jones said he backed Mr Kilby and insisted his party never wanted to kick out Newent House residents.

He said: “We understand the need for a primary school and that we need a health centre in the area and were only voicing concerns over the hospital on behalf of our constituents.”

Councillor Liz Green, Lib Dem deputy leader said she backed Mr Ayles.

She said: “We have consistently thought it [Surbiton Hospital] was the best site.

“The Tories at the last election were saying it was not the most appropriate site – Newent House was better and should be moved to the hospital site and the primary school located on the Newent House site.

“He [Nick Kilby] as agent must have authorised it, but whether he said it I don’t know.”