CCJ Question re: fast track / small claims judgement

[ParadiseKidd]

Hi - I am not sure if this is posted in the right place but I desperately need advice and don't know where to go.

 

Around Oct 06 my partners mondeo (bought via bank loan) went into fail-safe. We took it to 2 non-ford garages hoping to avoid being ripped off. Both diagnosed 3rd injector fault but said ford needed to do the work because of reprogramming the new injector. We took the car to ford who claimed that in actual fact all 4 injectors and the whole fuel injection system needed replacing at a cost of £3000ish. They said this was because the fuel pump was 1. damaged 2. working at half its working pressure 3. had introduced alot of swarf into the system and damaged it beyond repair. They even showed us a small amount of fuel with a huge 2mm squareish of metal bits in.

 

We didn't believe this for one minute as the car had otherwise been running well. Ford assured us all their garages would say the same. We had nowhere to turn and had an unrunable car, so contacted trading standards. They told us get a fuel report, prove the pump isn't damaged and we will take action. It took ages to get this done, about 6 months using an independent assessor and specialist garage about 100 miles away from us. We proved that Ford had actually lied because the pump was NOT damaged and the fuel was NOT contaminated!!!! The car eventually got mended by the specialist garage, who overlooked some ford work too. Trading Standards basically said they weren't prepared to undertake criminal proceedings because it had been too long since the event and the garage had an unblemished history (so what??), so instead they got a little slap on the wrist and trading standards refused to talk about it any more - they are shockingly incompetent and bias against consumers!

 

We applied to the small claims to recover £1500 lost - i.e. the cost of the loan on a un-usable vehicle, the cost of investigations, which wouldn't have been undertaken if ford hadn't lied.

 

Again the application took ages, ford got a big international firm to represent them and an expert of their own.

 

Anyway, the judge said that actually the case should go to fast track (after experts had been consulted, vast majority of cost undertaken) because the allegation was fraud. he specifically said that when the case was reffered to fast track you are liable for costs. We didn't see what choice we had and it was moved - we still couldn't get any legal representation though because the case was still for less than £5000!!!

 

The fact of fraud was deemed irrelevant by the judge at a summary judgement hearing started by the other side. He said that it didn't matter if ford had been fraudulent because our subsequent lost was our own fault - we chose to have the investigations. So we were landed with nearly £4000 bill for other sides costs which we cannot afford to pay (my partner since lost his job, we live on just over £8000 a year!).

 

I argued to the judge that we should at least be spared costs prior to the case being moved to the fast track but he just dismissed me - it annoyed him massively already that I spoke at points for my partner because my partner is dyslexic and struggles with paperwork.

 

Is this right? I know the judgement is completely unfair but we are stuck with that - Ford can clearly be as fraudulent as they like because no-one will do anything! But I honestly thought that we shouldn't have to pay their costs whilst the case was in small claims??? Now we have a warrant of execution order, and we are just devastated - the ford representative laughed when the judgement was stated. Its like they are over the moon to ruin our lives, even though they know exactly what they have done.

 

Also can I report them to the police for fraud now??

[GaryH]

Did they get their full schedule of costs?

 

Was the claim allocated to the small claims track initially? What date? When was it re-allocated?

[ParadiseKidd]

The judge approved all the costs there and then, it was moved to the fast track around july time but about 75% of their costs were incurred prior to this when it was still in the small claims track

[GaryH]

As you're aware you can't do anything about the judgment - but if the claim was allocated to the SCT then later re-allocated to the FT then they are only entitled to costs from the date of re-allocation. If the judge said otherwise then he was wrong.

 

How long ago was the SJ hearing?

[ParadiseKidd]

The end of November 07 - I just accepted what the judge said, stupidly. What can I do now? Argh! I knew it wasn't right but he just dismissed me - the other side even went into the room before us to speak to the judge! it was totally wrong, all because we weren't represented.

[GaryH]

Two options - a) get the other side to consent to accepting a revised schedule of costs, dated from re-allocation to judgment, or b), apply to the court to get the costs order amended citing an error of procedure.

 

Here's CPR 27.15, which as you can see is quite clear -

PART 27 - THE SMALL CLAIMS TRACK

 

Personally, I'd firstly write a letter to the Defendant's sols citing CPR 27.15 - that they are only entitled to costs from re-allocation and that the order allowing their full schedule was an error of procedure. Offer them the revised amount and ask that they draft a consent order accordingly. Tell them (politely) that if they don't agree you'll apply to the court and seek your wasted costs in doing so.

 

If they refuse (which I can't imagion that they will) then you'll have to go directly to the court.

 

Post your letter here if you like and I'll check it for you.

[ParadiseKidd]

Thank you so much!!!!!!! You have helped me so so so so much! I will post the letter up tomorrow morning once I sort out all the dates and costs, which are at my house. Thank you SO MUCH! At least I won't sleep tonight with anticipation of getting this letter off to the smug solicitors for ford, instead of worrying about the bailiffs!

[ParadiseKidd]

How does this sound? It's very difficult for me to come up with a total sum because they put the whole schedule together, so instead I have pulled out what happened during the small claims track - most of it happened before allocation to the fast track. Essentially we were just waiting from May for the hearing at the end of November, but the solicitors applied for Summary Judgment and sent an expensive barrister to represent them so that adds up a bit. It will still be a really significant reduction though! I am going out soon to work, but will eagerly look to see your response this evening! Thank you so much

 

 

 

Dear Ms Wix,

 

Claim Against Evans Halshaw Glossop

 

Further to judgement on the above claim, I am writing to refer you to Section 27.15 of the Civil Procedure Rules for the Small Claims Track. You will note that this rule clearly states that your client is eligible to claim costs only from the date of re-allocation to the Fast Track. The order allowing your full schedule was an error of procedure.

 

Please draft a consent order accordingly, omitting everything prior to formal re-allocation from the Small Claims Track to the Fast Track by District Judge Butler on 24 May 2007, namely;

• A significant reduction of letters out, currently 51 at £9.80 each - £499.80
  
• A reduction of telephone calls, currently 7 at £9.80 each - £68.60
  
• Omission of Attendance on Client at £98
  
• Omission of Travel to and Hearing at Buxton County Court on 3 April 2007 at £183
  
• An omission of the following Work on Documents; Considering Claim Form and Particulars of Claim, Preparing Defence, considering Amended Claim Form and preparing Amended Defence, Preparing Allocation Questionnaire, Considering Claimants Expert Report, preparation of Instruction to Expert, an amount of preparing and considering list of documents, inspection of documents, currently 15 hours at £98 per hour - £1,470
  
• An omission of the Expert Fees of Mr Lee Cookson at £342.50
  
• A Reduction in Travel to and from Court at £28.50

If you don’t agree to the above, I will have no alternative but to apply to the court and seek my wasted costs in doing so.

 

Yours Sincerely,

 

 

ParadiseKidd.

[GaryH]

Yep, thats good.

 

Which firm is it, just out of interest?

[ParadiseKidd]

Good - thats off in the post special delivery tomorrow! The Solicitors firm is Geldards LLP in Derby, and the company is the Evans Halshaw Franchise of Ford in Glossop.

[ParadiseKidd]

I have had a letter back from Geldards refusing to change the schedule of costs. Their reason is that the case was never in the small claims track. However, the application was made in the small claims track and stayed in the small claims track until a pre-hearing review (I think it was called that) on the 3rd April 2007 during which the judge stated that the case amounted to fraud and should be moved to the fast track. He asked for applications regarding track to be made to the court and that allocation be deferred in the meantime. On the 24th of May 2007 we received the letter stating 're-allocation to the fast track' - surely then, up until this point it was still in the small claims track? Re-allocation? I'm really confused and don't know if or how I can argue against their response - we are on a really low income and can barely afford £5 a month in payments, but now the bailiffs have been ordered round. They won't be getting in the house and I'll be tape recording and filming them if they do turn up, but its still not nice. What is the minimum payment the other side have to accept, considering that our household income is only about £8500 per year? I have applied for a reduction in the installment order and a suspension of the warrant, but how likely is it to be stopped?

This is an absolute nightmare - we made a claim in the small claims track for £1500 against a big firm which tried to rip us off, and ended up with a bill which is now at £3700 without ever becoming eligible for legal aid / free advice. Our legal system is sickeningly unfair.

[GaryH]

If the claim was never allocated to the SCT in the first place then they're right, but as per posts #2 and #4 above, if the claim definately was allocated to the SCT first then later re-allocated to the FT then CPR 27.15 does apply without a shadow of a doubt.

 

Bear in mind that when you file a claim you don't actually file it into any particular track - allocation is not decided until after a defence has been filed, and until or unless a claim is formally allocated to the small claims track you don't get the protection of the SCT provisions.

 

Did you fill in an allocation questionnare? A couple of weeks after sending it back you should have got a notice of allocation to track. If at that point it was allocated to the SCT then CPR 27.15 applies and, whatever they might say, they are not entitled to all the costs. If this is definately the case then, as per the advice above, you should now write to the court.

 

On the other hand, you may not have got a notice of allocation to track - you may have just got a notice of preliminary/allocation/pre-trial (etc) hearing. If this was the case and the claim was allocated to the FT at that hearing then it was not re-allocated, just allocated - so it was never in the SCT in the first place, and, unfortunately, they would then be entitled to all the costs.

 

Which do you think it is?

[ParadiseKidd]

Sorry I haven't been around for a few days !

 

I am gutted really because I can't remember doing the allocation questionnaire, I had just believed it was in the small claims track. Also, the letter allocating the case to the fast track stated that the case had been 're-allocated' so surely it must have been in a different track? We followed proceedings as per the small claims track until the judge picked up on 3rd april that it should be in the fast track if it was an allegation of fraud. Here is what geldards say....

 

We would refer you to the order of district judge butler made 3 april 2007 which, at paragraph 1, clearly states that the allocation has been defferred pending service of the amended defence. Upon the parties making written representation in relation to allocation to track, the matter should be refferred back to District judge butler for allocation. Accordingly an amended defence was filed and further representation was made by both parties at a hearing on the 24 May, District Judge Butler allocated the matter to the fast track.

 

How would I know if it was ever in the Small claims track? Its looking bad isn't it...

[GaryH]

I am gutted really because I can't remember doing the allocation questionnaire, I had just believed it was in the small claims track. Also, the letter allocating the case to the fast track stated that the case had been 're-allocated' so surely it must have been in a different track?

Not necessarily - it could have just been an error in the terminology.

We followed proceedings as per the small claims track until the judge picked up on 3rd april that it should be in the fast track if it was an allegation of fraud. Here is what geldards say....

 

We would refer you to the order of district judge butler made 3 april 2007 which, at paragraph 1, clearly states that the allocation has been defferred pending service of the amended defence. Upon the parties making written representation in relation to allocation to track, the matter should be refferred back to District judge butler for allocation. Accordingly an amended defence was filed and further representation was made by both parties at a hearing on the 24 May, District Judge Butler allocated the matter to the fast track.

 

How would I know if it was ever in the Small claims track?

If it was, you probably would have known. The fact that allocation was deferred initially would strongly suggest that it was never in the small claims track. If you want to double check ring the court staff and ask them for copies of all the orders.

Its looking bad isn't it...

Yes. Sorry

[ParadiseKidd]

Thanks so much for all of your advice anyway - at least we know for sure now, without your advice we were just stumbling around in the dark! You've been fantastic

[GaryH]

No probs. Sorry it didn't work out for you.

[sg1981]

ParadiseKidd, I've read this thread and I'm extremely shocked at what's happened to you. I just want to say that you and your partner have got my heartfelt sympathy for your nightmarish situation.

 

I thought that claims under £5k needed to be exceptionally unusual for Judges to allocate to Fast Track, but I once found out that Judges can apparently do it on a whim...

 

A few years ago I had a claim Fast Tracked by a judge for quite a small amount (about £950) and in my opinion it was a really straightforward claim for breach of contract. I still remain bewildered as to why he did it, and when I wrote to the court asking for a reason they said "the judge refuses to give a reason and is not obliged to do so". Luckily the Fast Tracking of the case scared the other party more than it scared me (probably because of the tougher rules on disclosure) and they settled out of court.

 

This is quite scandalous in my opinion; the County Court is supposed to be friendly to the layman for claims under £5k, and when judges make these decisions to allocate to Fast Track there should be far more information given to laymen on what the serious implications are of this. It was only through a stroke of good luck that I found out Fast Tracking meant I'd be liable for the other party's costs - the court didn't warn me by enclosing any leaflets or anything when they told me of the Judge's decision!

 

And the court was unable to give me any information on the bundle of documents I needed to submit under the Fast Track disclosure rules, and just kept telling me to get a solicitor. For claims of under £1k you shouldn't need to - there should be basic information available to litigants in person. I thought the whole point of the County Court was that laymen could act in person without being forced into racking up big solicitors' bills.

 

More disturbingly, I suspect many laymen wouldn't even bat an eyelid at the words "Fast Track" on the paperwork; they wouldn't find out that it means something very different to Small Claims Track until it's too late!

 

Do any of the legal experts on here know if there's any way at all of challenging a Judge's decision to Fast Track, if all your common sense tells you it was the wrong decision?

 

Some once suggested to me that if it ever happens again, simply discontinue the case and start it again at a different court, as a different Judge on a different day is likely to make a different decision (but I don't know if this is good advice or not).

[sg1981]

P.S. On a separate note, I'd go to the local newspapers about the way the garage have behaved, and make special mention of the way they laughed at you in court. Putting the legalities to one side, it's vindictive and heavy handed for them to set the bailiffs on you, as if you haven't already suffered enough with your duff Ford car.

 

The car-buying public in your local area might like to know what kind of company they are.

[GaryH]

ParadiseKidd, I've read this thread and I'm extremely shocked at what's happened to you. I just want to say that you and your partner have got my heartfelt sympathy for your nightmarish situation.

 

I thought that claims under £5k needed to be exceptionally unusual for Judges to allocate to Fast Track, but I once found out that Judges can apparently do it on a whim...

 

A few years ago I had a claim Fast Tracked by a judge for quite a small amount (about £950) and in my opinion it was a really straightforward claim for breach of contract. I still remain bewildered as to why he did it, and when I wrote to the court asking for a reason they said "the judge refuses to give a reason and is not obliged to do so". Luckily the Fast Tracking of the case scared the other party more than it scared me (probably because of the tougher rules on disclosure) and they settled out of court.

 

This is quite scandalous in my opinion; the County Court is supposed to be friendly to the layman for claims under £5k, and when judges make these decisions to allocate to Fast Track there should be far more information given to laymen on what the serious implications are of this. It was only through a stroke of good luck that I found out Fast Tracking meant I'd be liable for the other party's costs - the court didn't warn me by enclosing any leaflets or anything when they told me of the Judge's decision!

 

And the court was unable to give me any information on the bundle of documents I needed to submit under the Fast Track disclosure rules, and just kept telling me to get a solicitor. For claims of under £1k you shouldn't need to - there should be basic information available to litigants in person. I thought the whole point of the County Court was that laymen could act in person without being forced into racking up big solicitors' bills.

 

More disturbingly, I suspect many laymen wouldn't even bat an eyelid at the words "Fast Track" on the paperwork; they wouldn't find out that it means something very different to Small Claims Track until it's too late!

I agree. Most judges seem to stick to the quantum thresholds but some don't and they do have ultimate discretion which is something many people don't realise. It also doesn't seem right that costs protection isn't availible unless or until the point that the claim is allocated to the SCT, which again is something most people don't realise.

 

Do any of the legal experts on here know if there's any way at all of challenging a Judge's decision to Fast Track, if all your common sense tells you it was the wrong decision?

When you get an order notifying you of the track you can apply to vary the order and have the track shifted. You'd then have to go to an application hearing and explain your reasons. If that was unsuccessful you could appeal, although that in itself carries a costs risk and appealling any decision is not something which should be recommended for a litigant in person in any event.

Some once suggested to me that if it ever happens again, simply discontinue the case and start it again at a different court, as a different Judge on a different day is likely to make a different decision (but I don't know if this is good advice or not).

No, its not. Its abuse of process and would probably lead to the claim being struck out.