Marc Gander - The Consumer Survival Handbook


A 220 page introduction to all things consumer related by our own BankFodder.

Includes energy companies, mobile phone providers, retailers, banks, insurance companies,debt collection agencies, reclaim companies, secondhand car sellers, cowboy garages, cowboy builders and all the rest who put their own profits before you.

£6.99



Patricia Pearl - Small Claims Procedure - A Practical Guide


An excellent guide for the layperson in how to use the County Court - a must if you are intending to start a claim.

£19.99 + £1.50 (P&P)


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  1. #41
    Basic Account Holder Tim noise 99 Novitiate



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    Default Re: Judge incorrectly transferred case to another court

    fyi its the Apple V Samsung judge who will be hearing the case...

    yes it has gotten more than a little out of hand right?


  2. #42
    Basic Account Holder dondada Novitiate



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    Default Re: Judge incorrectly transferred case to another court

    Quote Originally Posted by BazzaS View Post


    You'd never be facing part 36icon cost consequences if it was never a Part 36 offer.
    I'm not sure if that is a technicality or 'appropriate advice'.


    Judges have been known to give very wrong judgements

    My point is; if any offer is made respond to it!

    Forget technicalities!

    Be reasonable in all your conducts

    Reasonable conduct will get you very far, far more than technicalities.

    People who are quick to ridicule others are usually on an ego trip

    Be very careful of them!

    Imagine yourself arguing against a seasoned lawyer about what is a Part 36 offer

    Who is the Judge going to listen to?

    Especially if you get a Judge who isn't experienced!

    Or you get a Judge who isn't so knowledgeable!

    Great if you get to know some of the technicalities but very important if you are reasonable in your conduct.

    Once again wish you the best and I hope you have your day in the Court (Small Track)


  3. #43
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    Default Re: Judge incorrectly transferred case to another court

    Where are you at / up to with your application to have it heard in the small claimsicon track of IPEC?


  4. #44
    Basic Account Holder Tim noise 99 Novitiate



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    Default Re: Judge incorrectly transferred case to another court

    Quote Originally Posted by BazzaS View Post
    Where are you at / up to with your application to have it heard in the small claimsicon track of IPEC?

    IPEC are waiting for my complaint to the county courticon to be resolved before listing the Strike out Hearing. I have sent in the N244icon form asking for it to be reassigned to small claims to be heard at the same time
    The defendant has already supplied a witness statement for the strike out hearing, I havnt supplied anything yet (IPEC also has all of the original witness statements/defence etc from the previous court)

    Not sure if ADR would be agreed since the defendant has already spent £10k (that was from Dec 27th to Februrary!)


  5. #45
    Basic Account Holder dondada Novitiate



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    Default Re: Judge incorrectly transferred case to another court

    Quote Originally Posted by Tim noise 99 View Post

    Not sure if ADR would be agreed since the defendant has already spent £10k (that was from Dec 27th to Februrary!)

    ADR can be suggested at any time

    But leave it too late and the other side would have good reason to reject it

    Don't close the door to anything

    I hope you have your day at the Court (small track) but consider other options in case things don't go your way

    You could still make a Calderbank offer or a drop hand offer

    They must likely wouldn't accept it but it could save you a lot if things go wrong

    Have as many options as you can.

    All the best and I wish you have your day in the small track when all these would be unnecessary


  6. #46
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    Default Re: Judge incorrectly transferred case to another court

    In my view you don't have to respond to the offer. But, have you thought about accepting it?

    We don't have much detail about the case so can't really comment on all the things they're saying in the offer letter. Do you disagree with the points they make?

    Rather than getting hung up on the offer, it looks as if the other side have given you a good chunk of what they'll be arguing at the hearing. So I would suggest seeing what you can do to provide supporting evidence of your own arguments and rebutting the points they raise.


  7. #47
    Basic Account Holder Tim noise 99 Novitiate



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    Default Re: Judge incorrectly transferred case to another court

    Quote Originally Posted by SuperVillain View Post
    In my view you don't have to respond to the offer. But, have you thought about accepting it?

    We don't have much detail about the case so can't really comment on all the things they're saying in the offer letter. Do you disagree with the points they make?

    Rather than getting hung up on the offer, it looks as if the other side have given you a good chunk of what they'll be arguing at the hearing. So I would suggest seeing what you can do to provide supporting evidence of your own arguments and rebutting the points they raise.


    The offer is "no longer on the table" according to the defendants solicitor

    FYI I have a response from IPEC regarding ADR

    "With regards to ADR I believe that is usually conducted before proceedings are issued. It may be the case that you can enter that now, I suggest you seek independent legal advice on the matter."

    Not really helpful and I still dont know how to ask for ADR!

    Oh and another thing, I sent the N244icon application for moving it back to small claimsicon track, it was signed for by "security" and not passed on to the court clerks, so who knows where that is now?


  8. #48
    Basic Account Holder dondada Novitiate



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    Default Re: Judge incorrectly transferred case to another court

    Quote Originally Posted by Tim noise 99 View Post

    Not really helpful and I still dont know how to ask for ADR!

    A letter to the other side asking for ADR should do

    Mediationicon is about the most popular form of ADR

    I would suggest you ask for Mediationicon but ask them to state their preference.

    In the Court you might need to chase your documents


  9. #49
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    Default Re: Judge incorrectly transferred case to another court

    Quote Originally Posted by dondada View Post
    A letter to the other side asking for ADR should do

    Mediationicon is about the most popular form of ADR

    I would suggest you ask for Mediationicon but ask them to state their preference.

    In the Court you might need to chase your documents


    OP, before you even think about this, consider the content of their letter.

    Are the points in their letter valid? At present, that, and the Defence, is the best idea you have about what they will argue if the matter ever sees a trial.

    To avoid liability for their costs you have to win, either via a settlement offer or at trial. How do you rate your chances at trial?



    "you claim to have suffered financially by xxxxxxxx producing a screen shot of xxxxxxxx.com website, as you were unable to accept bookings as you were a witness in case between xxxxxxxx and xxxxxx." - is this correct? It brings into question whether this is a copyright case.

    "• We have asked you to prove you own the copyright. As the Judge said ‘Its all well and good you saying you own the copyright, you have to prove it’." - did you create the work in question and if so are you sure you retain the copyright (e.g. some companies write into their employment terms that they hold the copyright of anything created via employment)

    "• The screen shot was taken for Private Research only, NOT for Commercial gain." - sounds like a set up for a Defence under s28B of the Copyright Designs and Patents Act 1998.

    "• You are claiming damages of £3,000. xxxxxxx have asked you to prove the damages of £3,000." - the Court will ask you this too. Furthermore at post 7, you say you've been told your case has little to no monetary value - by whom, and do you agree?



    Without any real background to the case the content of their letter looks pretty damning. Added to this, their legal representatives clearly feel they have enough of an argument on these points (and maybe others) to apply to strike out your Claim. On this basis alone, and with that hearing in the pipeline, common sense dictates that the likelihood of them agreeing to mediation/ADR is slim to nil.

    Look at it this way. Why settle (i.e. give you the win) and get no costs, when you have already made an application which, if successful, will consign this claim to the scrap heap before a full trial (in Jan 2018) and get you your costs?

    As I said before you have to win this to avoid their costs, and you have to focus on how you're going to do that.


  10. #50
    Basic Account Holder dondada Novitiate



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    Default Re: Judge incorrectly transferred case to another court

    Maybe this would be of interest

    https://www.fenwickelliott.com/resea...equest-mediate

    It is a long read anyway


  11. #51
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    Default

    Quote Originally Posted by dondada View Post
    Maybe this would be of interest

    https://www.fenwickelliott.com/resea...equest-mediate

    It is a long read anyway
    Do you agree with their conclusions (from Feb 2015), and how would you suggest the OP proceed?


  12. #52
    Basic Account Holder Tim noise 99 Novitiate



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    Default Re: Judge incorrectly transferred case to another court

    Quote Originally Posted by BazzaS View Post
    Do you agree with their conclusions (from Feb 2015), and how would you suggest the OP proceed?
    A quick update for every one

    I made the application to transfer out of multi track and into the small claimsicon. Still waiting for a hearing but it would appear the other party now consent BUT They are asking that they be able to recover their costs under the Civil Procedureicon Rule 45.3 to 45.32

    In the multi track they were limited to my claim amount which was £3000 even though they have amassed well over £10k of costs

    So if this does go to small claims and they are allowed to claim their costs under the Civil Procedure rule, are they likely to get £3k or £10k+ ?


  13. #53
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    Default Re: Judge incorrectly transferred case to another court

    " So if this does go to small claimsicon and they are allowed to claim their costs under the Civil Procedureicon rule, are they likely to get £3k or £10k+ ?"


    O'Beirne v Hudson [2010] EWCA Civ 52

    Court of Appeal decision

    The Court held that, to the extent that the appeal Judge could be understood to be saying that the Court would be entitled simply to assess costs by reference to the SCT regime, he was wrong. But a Costs Judge is entitled to take account of all circumstances (CPR 44.5(1)), including the fact that the case would almost certainly have been allocated to the SCT and what could or could not be recovered if the case had been so allocated. At that stage the Costs Judge must question whether, if it could have been fought in the SCT, it is reasonable that the paying party should pay the costs of a lawyer. The Costs Judge would not be bound only to allow the costs as per a case on the SCT but it would be a "highly material circumstance" in considering what by way of assessment should be payable.

    The Court of Appeal said that the test was whether it is reasonable for the paying party to pay more than would have been recoverable in a case that should have been allocated to the SCT. Where a claim should have been allocated to the SCT but settles beforehand, a Costs Judge should consider whether it had been necessary to have had lawyers and, if so, if it is reasonable for the paying party to have to pay for lawyers.

    This is an important decision for insurers and Defendants. It is often possible to settle a claim below £1,000 general damages but Claimants will insist on having costs paid as part of the agreement. An offer of, say, £500 plus fixed costs is unlikely to be accepted and the Defendant must then decide whether to press on and seek allocation to the SCT, which is often difficult because DJ’s are reluctant to assume on the papers alone that a claim could not exceed £1,000.

    Acceptance of an offer of £500 when liability is not in issue is good evidence of the claim’s value. Defendants can now offer to pay standard costs knowing that they can ask the Court to assess costs by reference to the question whether it is reasonable to pay more than would have been recoverable in a case that should have been allocated to the SCT. Whilst it is perhaps unlikely that Courts will routinely allow fixed costs only, the test is a powerful negotiating tool and should enable substantial savings in recoverable costs in low value claims.

    Arguably, the same test could extend to the situation where a claim is allocated to the fast track but, in retrospect, should have been allocated to the SCT.

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  14. #54
    Basic Account Holder Tim noise 99 Novitiate



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    Default Re: Judge incorrectly transferred case to another court

    Quote Originally Posted by Andyorch View Post
    " So if this does go to small claimsicon and they are allowed to claim their costs under the Civil Procedureicon rule, are they likely to get £3k or £10k+ ?"


    O'Beirne v Hudson [2010] EWCA Civ 52

    Court of Appeal decision

    The Court held that, to the extent that the appeal Judge could be understood to be saying that the Court would be entitled simply to assess costs by reference to the SCT regime, he was wrong. But a Costs Judge is entitled to take account of all circumstances (CPR 44.5(1)), including the fact that the case would almost certainly have been allocated to the SCT and what could or could not be recovered if the case had been so allocated. At that stage the Costs Judge must question whether, if it could have been fought in the SCT, it is reasonable that the paying party should pay the costs of a lawyer. The Costs Judge would not be bound only to allow the costs as per a case on the SCT but it would be a "highly material circumstance" in considering what by way of assessment should be payable.

    The Court of Appeal said that the test was whether it is reasonable for the paying party to pay more than would have been recoverable in a case that should have been allocated to the SCT. Where a claim should have been allocated to the SCT but settles beforehand, a Costs Judge should consider whether it had been necessary to have had lawyers and, if so, if it is reasonable for the paying party to have to pay for lawyers.

    This is an important decision for insurers and Defendants. It is often possible to settle a claim below £1,000 general damages but Claimants will insist on having costs paid as part of the agreement. An offer of, say, £500 plus fixed costs is unlikely to be accepted and the Defendant must then decide whether to press on and seek allocation to the SCT, which is often difficult because DJ’s are reluctant to assume on the papers alone that a claim could not exceed £1,000.

    Acceptance of an offer of £500 when liability is not in issue is good evidence of the claim’s value. Defendants can now offer to pay standard costs knowing that they can ask the Court to assess costs by reference to the question whether it is reasonable to pay more than would have been recoverable in a case that should have been allocated to the SCT. Whilst it is perhaps unlikely that Courts will routinely allow fixed costs only, the test is a powerful negotiating tool and should enable substantial savings in recoverable costs in low value claims.

    Arguably, the same test could extend to the situation where a claim is allocated to the fast track but, in retrospect, should have been allocated to the SCT.

    thanks very much thats very helpful information !! Im sure that applies to my case also as my case should always have been allocated to small claims


  15. #55
    Basic Account Holder Tim noise 99 Novitiate



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    Default Re: Judge incorrectly transferred case to another court

    thanks for everyones help so far.

    The case has now be ordered on to the small claimsicon track and is awaiting a hearing date.

    The judge has ordered that the defendant be allowed to recover their costs so far incurred in the multi track (which was previously limited to £3000)

    they are also claiming costs against me for acting unreasonably.


    Could you please let me know at what point do I submit/bring up the case that was heard in the court of appeal

    obviously by rejecting the small claims track previously, the other side incurred costs due to them being unreasonable. Which has been proven by them now accepting it.

    I would like to argue that under that court of appeal ruling, this case should only ever have been heard on small claims and as such the losing party should only pay costs which are limited by the small claims court


  16. #56
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    Default Re: Judge incorrectly transferred case to another court

    Well..youll now need to follow the Small track process and file statement of case etc at correct time.

    I would of thought any issues towards cost will be bought up at the end, you can point to case law, errors by the court, why you were not unreasonable, etc...check docs sent by the other are marked without prejudiceicon or WJ save as to costs.



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