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

[SuperVillain]

Firstly don't panic. There appears to be a few different things going on here.

 

The Guidance on Gov.UK says - 'The general principle that an unsuccessful party will pay the legal costs of a successful party does not apply to IPEC small claims track claims.'

 

So if the allocation back to the Small Claims part of the IPEC happens, the losing party will essentially only be liable for fixed costs. Therefore, have you considered an application for the claim to be allocated to the IPEC small claims track.

 

Did the Defendant specifically dispute allocation to the IPEC Small Claims in any correspondence and if so what were their reasons? The matter going on too long doesn't seem a valid one... things like value, complexity, the need for expert evidence are things that should be considered.

 

The Defendant's application for summary judgment - that doesn't seem correct. Did they apply to strike out your claim? If so, has this application been heard or is a hearing listed. The killer question in this regard is probably, how strong do you feel your case is, having seen their defence and/or reasons for applying to strike out?

[SuperVillain]

Hi,

 

Just a little advice

 

If it is not accepted that the claim is allocated to the small claims you could consider asking the other side for mediation.

 

They would be extremely foolish to ignore Alternative Dispute Resolution.

 

In particular, when the Court tend to award cost against anyone (even the winning side) that refuses ADR.

 

It is illogical for them to use £10,000 to defend a £3,000 claim.

 

That, to me proves the merit of your case.

 

Point that fact to them and tell them you would seek detailed assessment of their fees.

 

Most importantly, you would question their choice of solicitors.

 

 

Re: detailed assessment, this is very much jumping the gun.

 

However OP should bear in mind regarding costs, and particularly if the issues run right to detailed assessment, the other side will incur costs (i.e. the costs of negotiating the costs) which they will seek from you too.

 

It is impossible to say it is illogical for them to spend £10k on a £3k claim with the information we know on this thread. Yes proportionality plays a factor, but so does the complexity of the issues at hand and a whole host of other things.

 

I can tell you from experience I've incurred £2.5k costs defending a £450.00 claim on behalf of a client and on another occasion incurred £18k costs defending a £100k claim on behalf of a client.

 

Each case is different.

 

ADR is a good idea, but if they are unwilling, they just have to show the Court that ADR was inappropriate in the circumstances, (possibly saying that for a £3k claim the costs of ADR are disproportionate).

[SuperVillain]

The Supreme Court disagreed. SV's statement paraphrased their judgment well.

 

"That factors which may be relevant to the question whether a party has unreasonably refused ADR will include (but are not limited to) the following: (a) the nature of the dispute; (b) the merits of the case; © the extent to which other settlement methods have been attempted; (d) whether the costs of the ADR would be disproportionately high; (e) whether any delay in setting up and attending the ADR would have been prejudicial; and (f) whether the ADR had a reasonable prospect of success."

 

http://www.bailii.org/ew/cases/EWCA/Civ/2004/576.html

 

http://hsfnotes.com/litigation/2004/05/14/2945/

 

ADR usually being the better option : yes.

ADR always being the better option : no.

There is a "reasonably considered" decision.

 

Thanks Bazza.

 

Like I said earlier; I hope the OP has his day in Court in the proper track

 

I just pointed out other options if things don't work out.

 

I will NOT respond to this issue again so as not to hijack the thread.

 

Thank you

 

I think it will be a while before we hear from the OP regarding his application.

 

Incidentally the £450 claim against my client was a road traffic accident, liability in dispute, and some digging threw up issues of latent defects in a product (the cost of which, was the claim being pursued), lots of chasing of the other side, them not understanding the issues compounding the correspondence volume (they were insurer panel solicitors), back and forth with the client, advice from barrister, representation at the small claims hearing... VAT on the disbursements. The costs quickly rack up.

 

As long as a Client is happy to spend the money knowing they won't get it back from the other side if they win, then it's worth properly fighting claims that you have a chance of winning.

[SuperVillain]

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.

[SuperVillain]

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.