Unfair Judgement? - about a boundary dispute with a neighbour

[Ganymede]

No, never.

 

Well then the Judge has erred in allowing a Success Fee, but the other side was still entitled to their base costs.

 

Hello and sorry to be a bit slow responding to this.

 

The time limit for appealing is 28 days. This is a hard deadline. You need pretty exceptional circumstances to get an extension to that. If you did get an extension you'd need a very good reason and would be expected to have acted as quickly as possible.

 

I understand the order was made in November 2014. You are now so far past the deadline that, in my view, appealing it now would be hopeless.

 

You may read the judgments given in some of the cases referred to by ibberty bibberty/The Mould, but I don't think these cases support you. For example, if you read the joined cases of Denton v TH White Ltd, Decadent Vapours Ltd v Bevan and Utilise TDS Ltd v Davies; you will see that relief from missing time limits was refused in cases where the delay was much less than in your case.

 

These days the 'success fee' under a Conditional Fee Agreement is not recoverable from the losing side. I assume that this has become an issue because the claimant was awarded a 'success fee' under their Conditional Fee Agreement and that the Conditional Fee Agreement was entered into before 1 April 2013, which is when the new rules abolishing the recoverability of CFA 'success fees' were introduced. If my assumptions are correct, I do believe that failure to serve an N251 would only prevent the other side from recovering the 'success fee' but would not prevent them from claiming the rest of their costs. Although in any event, unfortunately, I think it is now far too late for you to start appealing against an award of the success fee due to not receiving the N251.

 

The only thing you could possibly do is to bring a new claim forward if you do genuinely have an 'equitable counterclaim'. I would need to know more details to comment on that - it would have to be something different to the main dispute, and not just a rehash of the matters which has already been decided by the court.

 

Why is The Mould pretending to be someone else?

 

It's a little odd...

[ThedaBara]

I don't agree with the previous poster's assertion that the judgment can be attacked due to 'bias'. I do not see any evidence that the judge was 'biased'. To demonstrate bias you would need to show some pre-existing relationship between the judge and the other side.

 

Ill health can be a reason for getting a deadline extension. But how your illness prevented you from appealing the order within the time limit would be challenged and very closely analysed. Most illnesses would not normally stop you from filing an appeal within 28 days. If you were genuinely prevented from filing the appeal, for example if you had to stay in hospital, you would be expected to act as quickly as possible after leaving hospital. Unless you have been in hospital for the last six months I think you are very very unlikely to be allowed to file an appeal now.

 

I have not been in hospital. I am suffering from and being treated for mental stress, depression and anxiety. I can prove this by way of a doctor's letter if necessary.

 

Yes, and the Success Fee doubled the amount of the costs. I believe the N251 was not served as they probably missed the deadline of 01-04-13. They say it was sent around the end of March, but the Easter Bank Holiday was fast approaching. I think they missed out and have tried to blag it.

[steampowered]

I have not been in hospital. I am suffering from and being treated for mental stress, depression and anxiety. I can prove this by way of a doctor's letter if necessary.

 

That is helpful. The issue would be whether you can prove that the treatment prevented you from filing an application within the normal 28 day limit, and prevented you from filing an application until now. That would be a really tough argument to make.

[ThedaBara]

That is helpful. The issue would be whether you can prove that the treatment prevented you from filing an application within the normal 28 day limit, and prevented you from filing an application until now. That would be a really tough argument to make.

 

Yes… I don't expect the court to understand how a person with depression, rendered practically senseless by the medication, would rather stay in bed all day than research complicated legal issues in order to file an appeal… why would they care?

[legalistic]

Thedabara, you could complain to the Financial Ombudsman about your insurance company refusing to pay for your counterclaim. You would first need to establish if your counterclaim is within the time limit. It is always best to be represented as it is a professional risk for a judge to find in favour of a LIP when the other side is represented. (S/he could get overturned when the represented side appeal, which is humiliating for a judge and no help to his/her CV).

[ThedaBara]

Thedabara, you could complain to the Financial Ombudsman about your insurance company refusing to pay for your counterclaim. You would first need to establish if your counterclaim is within the time limit. It is always best to be represented as it is a professional risk for a judge to find in favour of a LIP when the other side is represented. (S/he could get overturned when the represented side appeal, which is humiliating for a judge and no help to his/her CV).

 

Thank you… it is worth a try!

[ibberty bibberty]

What do you is the best way to go forward with this matter?

 

ibberty bibberty

[ThedaBara]

Hmmm… There's is no access to justice unless you can afford to pay, then...

 

It is always best to be represented as it is a professional risk for a judge to find in favour of a LIP when the other side is represented. (S/he could get overturned when the represented side appeal, which is humiliating for a judge and no help to his/her CV).

 

So… a Judge is more likely to favour a represented party, whatever the situation? Isn't that a little bit biased?

 

What do you is the best way to go forward with this matter?

 

ibberty bibberty

 

A very good question! One would expect to find dozens (at least) of people on here who have suffered an injustice at the hands of the court… but where are they all?

 

Well then the Judge has erred in allowing a Success Fee, but the other side was still entitled to their base costs.

 

But there is no chance of getting the success fee removed from the costs … the other side (represented, and therefore favoured by the Judge) insists that they sent the N251.

 

I have insisted until I am blue in the face that I was not served with the document, but it didn't do any good.

 

That is bias.

[steampowered]

According to dictionary.com, bias is defined as follows:

 

1. a particular tendency, trend, inclination, feeling, or opinion, especially one that is preconceived or unreasoned: illegal bias against older job applicants; the magazine’s bias toward art rather than photography; our strong bias in favor of the idea.

2. unreasonably hostile feelings or opinions about a social group; prejudice: accusations of racial bias.

 

In order to be biased, the judge would need to have some preconceived notion about who is right before listening to the case. Making a decision you disagree with is not bias. The judge was faced with the other side saying they sent it, you saying you didn't receive it, and decided to go with the other side.

[ThedaBara]

Lack of a fair trial is the most violated of the human rights, apparently…thousands are denied justice.

 

Interesting…

 

http://www.bailii.org/ew/cases/EWCA/Civ/2003/1574.html

 

Probably all down to the luck of the draw and whether the Judge is having an 'off' day… I have been reading another post on here from 3-01-2009 (Yorkmacken)…

Final Charging Order hearing yesterday- a COMPLETE JOKE… It certainly struck a chord….

 

According to dictionary.com, bias is defined as follows:

 

1. a particular tendency, trend, inclination, feeling, or opinion, especially one that is preconceived or unreasoned: illegal bias against older job applicants; the magazine’s bias toward art rather than photography; our strong bias in favor of the idea.

2. unreasonably hostile feelings or opinions about a social group; prejudice: accusations of racial bias.

 

In order to be biased, the judge would need to have some preconceived notion about who is right before listening to the case. Making a decision you disagree with is not bias. The judge was faced with the other side saying they sent it, you saying you didn't receive it, and decided to go with the other side.

 

Ok… so, in your opinion, why do you think the Judge chose to believe the other party with regard to the service of the N251 in relation to the CFA when the document does not appear anywhere in their evidence? On what basis should the Judge have allowed their claim for a success fee in the absence of proof that the document was filed with the Court before the deadline of 01-04-13?

[steampowered]

Ok… so, in your opinion, why do you think the Judge chose to believe the other party with regard to the service of the N251 in relation to the CFA when the document does not appear anywhere in their evidence? On what basis should the Judge have allowed their claim for a success fee in the absence of proof that the document was filed with the Court before the deadline of 01-04-13?

 

It is really unfortunate this has happened and I have a lot of sympathy for you.

 

One type of evidence which is accepted by the courts is a witness statement. For example, if a solicitor gives a witness statement stating that a document has been dispatched that can be sufficient. The judge would often expect something a bit more (for example a copy of the dated covering letter or some sort of evidence of postage) but this is not strictly necessary.

 

Absolute proof is not required in civil proceedings - the judge would normally determine, based on a balance of probabilities, whether he thinks the N251 was properly served or not. In this case it sounds like the judge decided the N251 probably was served.

 

The other possibility is that the judge thought the N251 was not properly served, but that he should grant relief from sanctions and allow recovery of costs anyway. The purpose of requiring a N251 to be served was to put the other side on notice that the amount they may be required to pay in costs could be higher, because there would be a success fee as well as ordinary costs. There have been cases where an N251 was not properly served but the success fee was allowed anyway because the other side had been told about the existence of the CFA in some other manner (for example in a letter).

 

It is difficult for me to comment on why the judge made the decision he did, as I have not read any judgment, but I suspect it is similar to the reasons I have described.

 

I don't think 'bias' is the appropriate word here. Bias has to be something external like a personal relationship with one of the parties. You can't say a judge is biased just because you disagreed with the decision.

[ThedaBara]

Yes, but due to the reforms, (01-04-13), success fees are no longer allowed… So should the claimant be allowed to claim if they did not serve the form on time (if at all)? I was not told about the success fee… I did not even receive a part 36 offer. I was shocked when I found out about the uplift which has effectively doubled the debt.

[steampowered]

Yes, but due to the reforms, (01-04-13), success fees are no longer allowed… So should the claimant be allowed to claim if they did not serve the form on time (if at all)? I was not told about the success fee… I did not even receive a part 36 offer. I was shocked when I found out about the uplift which has effectively doubled the debt.

The new regime which prevents recovery of success fees applies to conditional fee agreements entered into from 1 April 2013. The old regime applies to conditional fee agreements entered into before that date.

 

To be honest it is very difficult for me to comment on this further without knowing why the judge made the decision he made. Save to note that I think you have now, unfortunately, gone past the deadline for appealing that decision.

[ThedaBara]

The new regime which prevents recovery of success fees applies to conditional fee agreements entered into from 1 April 2013. The old regime applies to conditional fee agreements entered into before that date.

 

To be honest it is very difficult for me to comment on this further without knowing why the judge made the decision he made. Save to note that I think you have now, unfortunately, gone past the deadline for appealing that decision.

 

Your guess is as good as mine. I am sure he is as familiar with the Lord Justice Jackson reforms as you and I...

[ThedaBara]

Hi guys….. sorry I have been a bit quiet… I think I have got my '2nd wind' now…I have good days and bad days… but much more of the latter especially since for the past couple of weeks I have had a tooth problem, (a dying nerve which needs root canal treatment), which has caused such intense pain that I have quite literally been banging my head against the wall. But a double whammy of antibiotics has finally started to kick in and I feel I am ready to try and fight the injustices that have been meted out to me by the judiciary.

 

Ok… I have questions which I need answers to, please; does anyone know whether a short court hearing of between 10-15 minutes would necessarily have been recorded? I would like to try and obtain the transcripts of the last two hearings, the first of which was an adjournment, which I believe was to consider my counterclaim. I am not quite sure what was said as the courtroom wasn't miked up despite my request for an audio loop. When I asked the judge if this could be provided, he said (shouting) not to worry about it- I didn't need the loop as the hearing was being adjourned… but then he jabbered for 10 minutes to the other side's solicitor, none of which I could hear. They may have been discussing an argument against my counterclaim, perhaps?

 

At the hearing for the final charging order, again, initially, there was no loop and I had to make a massive fuss to get one set up… this was done in haste (I don't think it helped to keep the judge waiting, but it was hardly my fault) and the sound levels were all wrong so I could only hear half of the conversation… The judge was not bothered as he had apparently already made his decision and was not prepared to listen to anything I had to say. He mentioned being unable to adjudicate, but even if he was… blah, blah, blah…. (I didn't catch it, but he was already shuffling the documents, like they do at the end of the news, so I didn't bother trying to argue).

 

The reason I would like the transcripts is because I still don't fully understand what went wrong, apart from the fact that the court did not issue my counterclaim because I had not paid the requisite court fee (from which I am exempt on account of an extremely low income).

 

I didn't even know that the JC's solicitor had asked for my claim to be 'dismissed due to non payment of the fee', until the Friday, with the hearing being first thing on Monday. I am thinking that they should have sent their letter to me with 7 clear working days before the hearing.. is that correct? If so, it is a new point that I could bring to the court's attention.

 

I missed all of the dialogue from the first hearing and half of the conversation at the final hearing. The judge may have mentioned something relevant before the loop was set up. (I had no loop at all at the original trial and was forced to defend myself without hearing the other side's argument).

 

I would like to request permission to appeal the judgement and I know I should have done so much earlier, but I have been worn down by 4 years of stressful litigation and now have ongoing multiple health problems. I often find it impossible to concentrate or make the simplest of decisions, (let alone prepare complicated legal documents). I am taking medication for anxiety, depression, panic attacks, IBS, gastric reflux, palpitations, arthritis, and I suffer from a very debilitating tinnitus and am unable to sleep, especially since the court's decision.

 

I know I would need a very good reason if the court is to consider allowing an appeal, but I am sure my GP would provide a letter of evidence to explain that there is a genuine explanation for the reason I was unable to cope with the deadline imposed by the court to appeal the decision and failed to file documents on time.

 

Oh… one other thing, please… should the judge have provided a written explanation for dismissing my counterclaim? Should the court have notified me prior to the hearing? I only know it was dismissed because I phoned the court just before the final hearing to try and find out what the ongoing situation was, having heard nothing at all

.

I came in here hoping to hear from others who may have suffered from the mistakes made by the court… It's good to share experiences, but it has been so quiet… do you think this thread should be moved to a more appropriate forum?

 

Many thanks in anticipation of your views and/or advice. I truly appreciate it. x

[legalistic]

ThedaBara, transcripts are expensive and it is unlikely that a future judge would be interested anyway. The main thing is what the orders say.I also suggest you write up a concise chronology of what has happened procedurally. You can post it here. It would also be immensely helpful to a judge as part of a skeleton argument or even just a letter.

[ThedaBara]

Hi legalistic…thank you for the post... the transcripts would be for my benefit rather than that of the judge… I just don't know how to go forward without having heard what was said at the hearings… was my counterclaim dismissed and on what grounds? Nothing mentioned on the Orders… the first was a notice of adjournment but didn't give any reason, then there was a hearing for a final charging order… again, the judgement order just states that the interim charging order be made final.

There was a further (without notice) hearing a month later which I didn't attend as I was not informed until weeks after the decision, and that was to modify the standard form K restriction to include a 14 day caution prior to sale. The court just rubber stamped it without inviting any objections, such as those of the co-mortgagee. (Would that have been recorded I wonder)? Can it be right that someone can get a modified restriction without notifying those who are affected by it and presenting it to Land Registry as a fait accompli?

I believe I may be able to get the transcripts at public expense due to my disability of being extremely deaf and in receipt of guaranteed credits.

[legalistic]

ThedaBara, OK so try to get the transcripts at public expense. I doubt, though, that it will be in your favour that more than one is sought! The judgments are the main thing to be transcribed as that is what you will be trying to appeal. A good judgment should tell the main elements of the story. You will still need to gather together all the papers sent and received in the case, in particular the orders. Once you do that you might find that a proper picture emerges.

[ThedaBara]

Thank you… I have all the Judgement Orders… nothing gives any written details, though. I think the term is 'rubber stamped'…I don't think the judge even bothered to sign his name…!! I know it is hard to believe but I truly feel there was prejudice...

[Ganymede]

Why do you think you are entitled to a fee remission? The criteria is very strict and you have to provide a lot of evidence.

 

Are you in employment?

[ThedaBara]

Ganymede… No… not in employment… sorry.

[Ganymede]

That didn't answer my question though.

[legalistic]

ThedaBara and Gannymede,Court fee remission and transcripts at public expense are two different things. The latter is decided by the judge at his/her discretion. The former is done by court staff according to the rules.

[Ganymede]

Ganymede… No… not in employment… sorry.

 

Ok, thank you.

 

Sorry if this has already been asked but what was the amount of the fee for the counter claim?

[ThedaBara]

ThedaBara and Gannymede,Court fee remission and transcripts at public expense are two different things. The latter is decided by the judge at his/her discretion. The former is done by court staff according to the rules.

 

Thank you… yes, I understand that I need the permission of the judge to ask for a transcript at public expense.

 

Ok, thank you.

 

Sorry if this has already been asked but what was the amount of the fee for the counter claim?

 

 

Gany… it was defence and counterclaim… I think the fee is normally £40 or something, but I sent the form for remission from fees along with my proof of exemption.