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    • I'm afraid that I think that as you've assembled the chair and you are unable to return it into its saleable condition, then you probably have a problem. I don't think you could take advantage of the distance selling rules in those circumstances and that means that the seller would be entitled to apply conditions to the return of the item. If that's the case then you only fall back is that the item was defective if you find that there is something wrong with it which is preventing its disassembly. On the other hand, this itself raises an interesting issue. Does a chair become of unsatisfactory quality because you can't take it apart and put it in a box? From the sounds of it, the sellers terms and conditions that there is a restocking fee for the return of an online sale even if it is within the 14 day period, seems to me to be quite unenforceable but on the basis of what you say, that issue doesn't arise here because you are unable to put the chair back into its saleable condition and it's not clear that the chair is defective - 
    • Hi everyone, I'm in need of some urgent advice please. Apologies for the long post - I felt it was better to provide all the information clearly at the outset.   I purchased an office stool (that cost £104.39) online, which was delivered on 18th May. After assembling the stool, I found it wasn't suitable for me, so contacted the seller on 27th May to initiate a return.    The seller told me that there would be a "£24.95 handling charge" for returning the item. He quoted the terms and conditions from their website to back this up (please see below), although this is confusing because 35% of £104.39 does not equal £24.95: "Please note that furniture items are subject to a 35% restocking fee. Furniture returns will only be accepted if the item is unused and still in the original packaging. All furniture returns must be made within 14 days of delivery."   I told the seller that, under the Consumer Contract Regulations, the trader cannot charge any fees in the event of cancellation. The response was: "If you not happy to pay for the collection charge for us to arrange this with a courier to uplift then you can send this back to our office directly arranging your own courier, please note we would not cover the cost if this is the case."    I agreed to this, because from my reading of the CCR I thought that the customer was responsible for return delivery:  (5) The consumer must bear the direct cost of returning goods under paragraph (2), unless— (a)the trader has agreed to bear those costs, or (b)the trader failed to provide the consumer with the information about the consumer bearing those costs, required by paragraph (m) of Schedule 2, in accordance with Part 2. Also, from getting quotations online I thought I could arrange delivery, for what was at the time a smallish box, for a much cheaper price (£7-8).   However, when I tried to disassemble the stool for return, it would not come apart. I contacted the manufacturer for further guidance, but the only how-to video they had available was not applicable to the model, and the manufacturer representative was unable to provide further instructions.   I have now been sent a 'built box' to return the stool without the need to disassembly. The issue is that the size of the box means that shipping charges are now £30 minimum i.e. more than the 'handling charge' the seller quoted.    Am I obliged to pay this return fee, or should this actually be something the seller should pay for? 🤔 I feel like I may have two potential arguments against it: Return delivery would not be nearly so expensive if the stool had come apart as the manufacturer said it should.  The Consumer Contract Regs state that a consumer is not responsible for return shipping if the trader has not provided information about the right to cancel and about return shipping on a durable medium.    What even counts as a durable medium? The dispatch note that came with the stool had no such information, while the order confirmation email simply had a link to their terms and conditions (which includes the statement about the restocking fee quoted above).   Does this clause mean the seller is still obliged to pay return shipping? Any advice would be greatly appreciated! I'm starting to stress a little about this because the 28-day cancellation-and-return period will be in two working days (although I realise that may be extended if it can be considered that the seller did not provide the required cancellation information).    Thank you in advance!  
    • so what you mean is that "each" parcel contained a single dinner plate. Thank you that clarifies things. As you been advised by my site team colleague, please make sure that you read around a substantial number of the Hermes stories on the sub- forum. You will get to understand the principles and also the similarities and approach from Hermes. Of course Hermes is being abusive of the system because they exploit a taxpayer funded under resourced justice system simply to put their customers into a kind of triage where only the most persistent finally get through to the end which is almost always – mediation – and then will manage to get their money or most of their money. Hermes are abusive of this system and of course they are actually going to spend more money than the value of your damaged items trying to smash you down. Because their attempts to crush you are effectively subsidised by the taxpayer, they don't really care. Make sure you understand what they will say about the prohibited items list because your plates are made of china or porcelain and will be prohibited items, according to Hermes. On the other hand, they were correctly declared and they were accepted for delivery. The values were correctly declared – and once again after you have completed your reading, you will understand the significance of this. Hermes will also try to say that you didn't have a contract with them and you should sue packlink – who conveniently – are based in Spain outside the jurisdiction. They were say that you are attacking the wrong people. Once again, when you have completed your reading you will understand the standard reply to this. Once again you will discover that this is Hermes being abusive of the system and misleading their customers as to what their rights are. Make a formal complaint to Hermes. Tell them that they are responsible. Don't give them a deadline, but wait a reasonable time – 10 to 14 days – after which you will send them a letter of claim if they haven't put their hands up by then or if you have had no response. By that time, you will have done enough reading to understand the way it goes but we will advise you and support you all the way.   Come back here when you have been knocked back by Hermes and we will take you through the next step  
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Small Claims Track Discontinuance advice needed


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Hi,

 

Need a little advice on costs as I am a little confuzzled.

 

I understand that costs on the small claims track can be assessed under CPR 27.14.

 

However, upon discontinuance where a case has not been subject to allocation (but is likely to be allocated to SCT) am I reading it correct that there is no liability under CPR 38.6 (3).

 

What then for the Defendant who has spent an inordinate amount of time preparing a defence etc only to then have a party discontinue???

 

 

Liability for costs

38.6

(1)Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.

 

(2)If proceedings are only partly discontinued –

 

(a)the claimant is liable under paragraph (1) for costs relating only to the part of the proceedings which he is discontinuing; and

 

(b)unless the court orders otherwise, the costs which the claimant is liable to pay must not be assessed until the conclusion of the rest of the proceedings.

 

Any thoughts?

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Hello vjohn82!

 

Sorry if I have not fully understood the question, but assuming that I have, I think it is useful to be aware that all Claims are effectively Multi-Track until Track has been Allocated.

 

So, the Track that the Claim might have ended up on, is irrelevant.

 

If they pulled the plug and baled out before Allocation, then Small Claims Track cost limits do not apply.

 

Hit them with a full Bill of Costs, and go for it! This may help...

 

One good tip on Litigant in Person Costs, is to know that the 2/3 Cap only applies to your Time Costs. IOW, the LiP Rate of £9.25 an hour.

 

Thus, when drawing up your Bill of Costs, always split it into two main sections, i.e. Time Costs and then Disbursements.

 

There are no limits on Disbursements, provided they are clearly reasonable and in keeping with the work done.

 

Disbursements are things like Postage, Carrier Costs, Printing, Paper, Ink, Telephone Calls, Car Fuel & Car Running Costs (to get to/from anywhere as part of the work done), Photocopying, Scanning, Accommodation, Travel & Subsistence, i.e. anything where you can substantiate a reasonable Disbursement.

 

Thus, it is quite conceivable that a Litigant in Person's costs could exceed that of a Lawyer, because a Lawyer is not allowed to include routine items like Paper and Ink etc. This is because it is assumed they include that as part of their fees, and have Gofer Staff to do the Menial Tasks for them. By comparison, the Court knows that a Litigant in Person would have to do everything themselves, and those tasks usually have a cost.

 

For example, if you use a Car or Bike to get to Court, then establish the mileage to Court and double it (because you also have to get back). Then find out a reasonable average for the cost of Fuel in your area. Then establish a reasonable Miles per Gallon, say, 30mpg for an average vehicle and, from that you can submit a Fuel Cost. Then add a reasonable running cost per mile for a vehicle, perhaps 10p or even 20p a mile, all is OK provided you can argue it. It could be higher if you factor in Road Tax, Depreciation, Running Costs, work out the annual cost, and divide that by 10,000 Miles average, and it may well work out at 50p a mile. Multiply that by the round trip mileage to Court, and that's the Disbursement for that!

 

IOW, if a Lawyer's fees would've been £1,200 and you claim £1,000 for your Time, then the 2/3 Cap would limit you to £800, that being 2/3 of the £1,200 a Lawyer would charge.

 

However, if you can show £600 in Disbursements, then your total fees would exceed the Lawyers, i.e. £800 allowed on Time Costs, and £600 for Disbursements, makes £1,400 in total, and that could be allowed because you are not getting more than the 2/3 Cap on your time.

 

So, make sure anything that is a Disbursement is removed from your Time Costs, and make sure you do charge for every second of your time at £9.25 an hour...the Court will limit you to 2/3 of a Lawyer's fees, but better that than under-claim and get less than you deserve.

 

Finally, there is Case History to support this:

 

Wulfsohn, R (on the application of) v Legal Service Commission [2002] EWCA Civ 250 (8 February 2002)

 

Also...

 

Mealing-McLeod v The Common Professional Examination Board 2000 All ER D 436.pdf

 

 

Cheers,

BRW

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Hi banker... thanks for looking in.

 

Well there was a Summary Judgement hearing scheduled for 22/02/10 - the Claimant discontinued on 18/01/10.

 

I wrote an informal letter to the court requesting permission to apply for costs but they decided to treat it as an application and used the SJ hearing to hear for costs instead.

 

I'm just trying to get my head around the costs rule for discontinuance and having no liability on the SCT as per 38.6 (3).

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Hello vjohn82!

 

Sorry if I have not fully understood the question, but assuming that I have, I think it is useful to be aware that all Claims are effectively Multi-Track until Track has been Allocated.

 

So, the Track that the Claim might have ended up on, is irrelevant.

 

If they pulled the plug and bailed out before Allocation, then Small Claims Track cost limits do not apply.

 

BRW.

 

Is there any case law or CPR where cases are multi-track before allocation?

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Hello vjohn82!

 

Is there any case law or CPR where cases are multi-track before allocation?
I regret I can't point you to where it lives, but it'll be buried in CPR somewhere. Try here:

 

Part 44 GENERAL RULES ABOUT COSTS

 

This bit may help, i.e. 44.11(1):

 

Costs following allocation and re-allocation

44.11

 

(1) Any costs orders made before a claim is allocated will not be affected by allocation.

 

(2) Where -

 

(a) a claim is allocated to a track; and

 

(b) the court subsequently re-allocates that claim to a different track,

 

then unless the court orders otherwise, any special rules about costs applying -

 

(i) to the first track, will apply to the claim up to the date of re-allocation; and

 

(ii) to the second track, will apply from the date of re-allocation.

 

(Part 26 deals with the allocation and re-allocation of claims between tracks)

See also the related Practice Directions here:

 

PRACTICE DIRECTION ABOUT COSTS

SUPPLEMENTING PARTS 43 TO 48 OF THE CIVIL PROCEDURE RULES

 

Also, Judge Patricia Pearl mentions this on page 124 of the Fourth Edition of her excellent book...

 

Small Claims Procedure:

A Practical Guide

 

Fourth Edition

 

ISBN 978 1 85811 394 4

This is what she says:

 

(2) What happens if there is a hearing on a case which qualifies for the Small Claims track before allocation? (for example the hearing for a summary judgment)

 

The District Judge is not restricted by the no costs rule when deciding how to deal with the costs (rule 44.9 and PD 44 para 5.1(1)) but will be concious of the discretion guidelines (see page 117).

CPR Rule 44.9 is below:

 

Costs on the small claims track and fast track

 

44.9

 

(1) Part 27 (small claims) and Part 46 (fast track trial costs) contain special rules about -

 

(a) liability for costs;

 

(b) the amount of costs which the court may award; and

 

© the procedure for assessing costs.

 

(2) Once a claim is allocated to a particular track, those special rules shall apply to the period before, as well as after, allocation except where the court or a practice direction provides otherwise.

I can't see a clear match for the "PD 44 Para 5.1(1)" that she mentions, so that could be a typo in the book, or CPR has changed since the book was written. There does not seem to be a Para 5.1(1), just a 5.1 and a 5.11, neither of which have a (1) linked to them!

 

I've had full costs awarded on a Summary Judgment Application that I made before Allocation, i.e. where the issue was otherwise heading for Small Claims Track. Because Track had not actually been Allocated when I won the issue, I received full costs...no question. Judge was quite aware, and I hardly needed to point out this was the case.

 

I hope this helps.

 

Cheers,

BRW

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Subbing. Excellent info, BRW.

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Great info BRW... thanks.

 

That was pretty much what I found when investigating it - it seems consideration whether a party was unreasonable prior to discontinuance is an important factor in the Judge's discretion.

 

I think I can more than cover that...

 

What is your take on a Witness Statement being privileged etc? There's lots about on google etc to say that they are not confidential and therefore I can tell the world... but if you have an opinion on it I would be glad to hear it.

 

Cheers,

 

VJ

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  • 1 year later...

Any advice please? Have issued a claim for £4.8k. Case allocated to Small Claims Track after I requested and defendent both stated in allocation questionaire. Defendant isntructed a large firm of solictors and then made application to court to have the case 1) struck out or 2) moved to Multi Track. Judge stayed case and pending Mediation or Office of Independent Arbitration but the later was not possible as we only wanted to go this route on basis of both parties bearing own costs and defendants want about £9k in costs. Judge did not have the case strcuk out.

 

Am thinking of discontinuing as defendent wants case moved to Multi Track and have said it will cost me £3ok - £40k if I lose.

 

Solictor now states CPR ( Rule 38.6) that “a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant”. These costs would need to be agreed, and if agreement could not be reached then they would be assessed by the Court.

 

As I said case is in Small Claims Track. I thought that provided my case is reasonable the most I can lose on solioctors fees is £80.00 I do feel I have a fair case but not 100% certain I can win. I would just like some advice on implications if I give up now (which is not my preferred route).

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