Unfair Judgement? - about a boundary dispute with a neighbour

[steampowered]

I think a bit more background is required to get sensible help. What is the counterclaim about - is it related to the main claim?

 

Why were you running the case yourself if it was covered by legal expenses insurance?

[steampowered]

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.

[steampowered]

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.

[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.

[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.

[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.

[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.