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Judge incorrectly transferred case to another court***Claim Successful***


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ADR : Alternative dispute resolution, of which mediation is but one 'flavour' ; albeit the most common overall.

(Some businesses have a different form of ADR as the most usual ADR, often determined as such within the standard contracts....

So, shipping and Construction will often use arbitration)

 

If this is a case for alleged breach of copyright there may well be no contract between you : so nothing to stop you proposing mediation.

If they have rejected your proposal for mediation, you don't have to try any of the other forms of ADR (if they wanted one of the others instead they could have offered it).

If you want to you could write, again offering mediation (or asking if they had a proposal for any other form of ADR), but you don't have to.

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para 7.12 in that guide, re small claims.

if it is reallocated to small claims, there may be another oppo for mediation. depending on its reallocated stage and any subsequent directions re.

otherwise there cld be an oppo to apply for a stay for settlement, on agreement with the other party. or on the J's direction.

otherwise, cld just try to settle via formal correspondence prior to any hearing

?

check with the guys

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they then offered me £5 compensation to settle the case (the judge said he didnt know what the claim was worth if anything it may only be a nominal £5 he didnt know - obviously they paid attention to that comment!)

 

 

 

Did you respond to the offer?

 

It is a Part 36 offer and you need to respond.

 

You need to state what you are willing to accept and it has to be reasonable

 

"Reasonable" means using some form of calculation rather than picking a number from the sky

 

Like BazzaS said, you could ask them for ADR again

 

I would say, when you do, state that you would ask the Judge to consider it unreasonable behaviour if they fail to engage.

 

Also, try and highlight their unreasonable conduct at every occasion.

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Did you respond to the offer?

 

It is a Part 36 offer and you need to respond.

 

How do you know it is a part 36 offer?

 

There are a number of formalities required for it to be / remain a Part 36 offer. Miss any one, and it isn't a valid Part 36 offer.

So, (even if it was intended as a Part 36 offer, and nothing the OP has said indicates that!): it might be a Part 36 offer, but that is by no means a certainty.

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Did you respond to the offer?

 

It is a Part 36 offer and you need to respond.

 

 

Let us make the big assumption (see previous reply) that it is in fact a valid Part 36 offer.

 

Where is the requirement to respond?.

 

If the OP has considered the ramifications of a valid Part 36 offer and still decided to ignore it: why do they "need to respond"?

 

They only "need" to respond if:

a) it is a valid Part 36 offer, and

b)

i) they want to accept it, or

ii) make a Part 36 counter-offer!

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It is a Part 36 offer and you need to respond.

 

You need to state what you are willing to accept and it has to be reasonable

 

There are practical reasons why a part 36 offer (or counter offer) should be realistic (or, at least, not unrealistic!, so that it creates pressure for it to be considered rather than 'dismissed out of hand')

 

But a party can make as unrealistic a part 36 offer as they like: it doesn't "have to be reasonable".

If it is "unreasonable" it doesn't mean it isn't valid (only that the part 36 consequences are unlikely to kick in if the matter proceeds to trial).

It is a purely mathematical calculation (what was offered? Has it been exceeded??) as to if part 36 costs consequences apply, not a "reasonableness" decision.

 

Are you sure you aren't confusing part 36 offers (mathematical decision) with part 44 (Calderbank) offers, where the court does consider if an offer was reasonably made / rejected.

 

Or confusing "costs consequences" with the costs themselves (where "reasonableness" may form part of the argument for fixed or assessed costs.......)

 

"Reasonable" means using some form of calculation rather than picking a number from the sky

 

It certainly helps establish that something is "reasonable" if it is based on some form of calculation (and/ or case law, such as "Vento bands")

 

But what of a case where there is no precedent, and no calculation available?

The court decides what is "reasonable", and the person making the offer has no obligation to "use some form of calculation" : as if there isn't one available at the time of making the offer, how could they be obliged to use it!?

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Even if (big IF) it is a part 36 offer, that becomes irrelevant if the OP successfully argues it should be heard in the small claims track ......

 

not sure what part 36 offer means

 

but I did reply and reject it.

 

I also made a new counter offer recently when it got transferred to IPEC but the defendant never responded to my offer other than to say it was being considered (that was about 4 months ago)

 

was my counter offer a Part 36 offer that should be replied to?

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is this a part 36 offer?

 

Without prejudices

 

Dear xxxxxxx

 

In order to resolve this situation and in accordance with the Judges’ comments I propose £5 nominal damages.

 

I propose this amount as the screen shot was only used in connection with an internal staff issue (xxxxxx with whom contract human resources are part of any internal staffing procedures) and the screen shot has not been used for any commercial gain by xxxxxxxxx.

 

Within your witness statement, 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. This case is also why you feel your name has been “dragged through the courts” but I would point out that it was xxxxxxxxx who called you as a witness and for whom you agreed to go to court. I would therefore highlight that the necessity to attend court was due to xxxxxx calling you as a witness and that any resulting feelings you have with regards you name being “dragged through the courts” is a result of xxxxxx calling you as witness and not through the actions of xxxxxxx

 

• 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’.

• xxxxxx took the screen shot on the advice of their Legal Representatives.

• The screen shot was taken for Private Research only, NOT for Commercial gain.

• xxxxxx have not profited from the screen shot

• xxxxxx received a letter from ACAS regarding an employment tribunal claim on xxxxxx 2016.

• You are claiming damages of £3,000. xxxxxxx have asked you to prove the damages of £3,000.

• xxxx has not damaged the reputation of xxxxxxxxxxxxx as a result of the screenshot.

• There has been no loss of profit as a result of the screenshot.

• The basis of you claim appears to be loss of earnings due to the court case.

• Your partner, xxxxxxxxx called you as a witness NOT xxxxxxxxx.

• You have signed a witness statement claiming not to be in a relationship with xxxxxxxx. However you both resided at the same address as the registered business address before, during and after the screenshot was taken. xxxxxxx is the name of xxxxxxxxxx son.

• There has been no damage to your honour or reputation as a result of this screenshot.

 

Let me know how you wish to proceed.

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not sure what part 36 offer means

 

but I did reply and reject it.

 

I also made a new counter offer recently when it got transferred to IPEC but the defendant never responded to my offer other than to say it was being considered (that was about 4 months ago)

 

was my counter offer a Part 36 offer that should be replied to?

 

If you don't know what a part 36 offer is, it is unlikely your offer was a valid Part 36 offer (as mentioned above, if it misses any of the formalities required by Part 36, it isn't a part 36 offer. One of the formalities is that it states it is made under Part 36 / as a part 36 offer ......

 

Assuming theirs was a Part 36 offer, and assuming the case doesn't return to your original intended (small claims track):

 

I still reject the notion "Part 36 offer (/ counter-offer) must (or even should) be replied to.

It is wise to carefully consider a Part 36 offer, and its implications.

It is often wise to consider replying to a Part 36 offer with a Part 36 counter offer, if you think you are likely to win but are worried you may not beat their offer : but there is no obligation to do so.

 

it depends : Was their offer realistic? (Are you likely to win, and beat it?)

 

https://www.out-law.com/topics/dispute-resolution-and-litigation/settlement/part-36-offers-to-settle/

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is this a part 36 offer?

 

Without prejudices

......

 

 

Let me know how you wish to proceed.

 

 

It doesn't mention Part 36. It doesn't mention a "relevant period" either, so it isn't a Part 36 offer on at least 2 grounds, making 'utter tripe' of

 

It is a Part 36 offer

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not sure what part 36 offer means

 

but I did reply and reject it.

 

I also made a new counter offer recently when it got transferred to IPEC but the defendant never responded to my offer other than to say it was being considered (that was about 4 months ago)

 

was my counter offer a Part 36 offer that should be replied to?

 

 

You could do a little research on Part 36 offers and other offers so you get the idea.

 

Even if it is not a Part 36 offer, any failure to respond could be used to highlight unreasonable conduct on your part.

 

Technicalities are all well and good but you might get a Judge who is down to earth and have little time for technicalities then you could be in trouble there.

 

You must likely, would go before a Judge (at some stage) so it is best you put on your best behaviour and be reasonable (also practical).

 

You are a Litigant in Person and if you try and make points on technicalities you will most likely incur the wrath of the Judge.

 

Be reasonable, seek to resolve the issue amicably (at least in your communications).

 

Always communicate with the other side

 

Highlight your reasonable conduct and their unreasonable conduct.

 

It is great to be verse in legal technicalities but you are a LIP and the average Judge would make allowance for that.

 

My honest opinion; forget technicalities and be reasonable

 

At the end of the day, you are the one who is going to pick up the bill if things go wrong

 

I can present myself as a "know it all" but I wouldn't be picking up the bill

 

I hope you get your day in Court (small track)

 

If it goes to multi-track, once you have a good case you could still win

 

Just be practical and do little things that could save you a lot if it goes wrong

 

For example; ADR offers, Part 36 offers and Calderbank offers etc

 

Wish you all the best

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You could do a little research on Part 36 offers and other offers so you get the idea.

 

Love it!

It is just a shame you didn't "do a little research" before spouting such rubbish about it being a Part 36 offer.

 

 

Technicalities are all well and good but you might get a Judge who is down to earth and have little time for technicalities then you could be in trouble there.

 

You'd never be facing Part 36 cost consequences if it was never a Part 36 offer.

I'm not sure if that is a technicality or 'appropriate advice'.

 

 

At the end of the day, you are the one who is going to pick up the bill if things go wrong

 

I can present myself as a "know it all" but I wouldn't be picking up the bill

 

The OP picking up the bill is all the more reason for them to be given accurate advice.

 

I'm not going to see them given duff advice by you without calling you out on it (& explaining why, so they can check out which is correct for themself)

If the "cost" of that for me is you calling me a "know it all", I can live with that.

 

If I've got something wrong I hope someone will point it out. I can then argue my point if I disagree.

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is this a part 36 offer?

No, it doesn't meet any of the formalities for a Part 36 offer. If the formalities aren't strictly complied with it isn't a Part 36 offer.

 

It is instead a Calderbank offer, which does not have such strict formalities. This is not necessarily a problem, you might be perfectly happy with your offer being a Calderbank offer, just something to be aware of.

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You'd never be facing Part 36 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)

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

 

 

IPEC are waiting for my complaint to the county court to be resolved before listing the Strike out Hearing. I have sent in the N244 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!)

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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

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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.

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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 N244 application for moving it back to Small Claims track, it was signed for by "security" and not passed on to the court clerks, so who knows where that is now?

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

 

 

 

A letter to the other side asking for ADR should do

 

Mediation is about the most popular form of ADR

 

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

 

In the Court you might need to chase your documents

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A letter to the other side asking for ADR should do

 

Mediation is about the most popular form of ADR

 

I would suggest you ask for mediation 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.

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