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


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Hi me again!

 

SI had a copyright claim against a company last year which was transferred into my local county court on the small claims track. The judge ruled he couldnt hear the case as he knew nothing about copyright. It took him several months but he transferred it to IPEC (intellectual property court) in London.

 

Now the problem is he didnt transfer it into the small claims part of IPEC , he wrongly transferred it into the main court and I am now facing costs of £10,000 against me instead of £120 maximum from small claims

 

I have only just become aware of whats going on regarding the notice of transfer although it has been withIPEC for about 5 months now

 

is it too late to challenge the county courts trasnfer to the wrong track?

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Are you sure that the track system applies to the IPEC ? Given that it's an alternative to high court I'm not sure if that's the case, in any event costs only apply if you lose.

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https://www.gov.uk/defend-your-intellectual-property/take-legal-action

 

This seems to show that yes there is a ipec small claim track, all you can do is ask if be transferred to the correct track.

 

When did you get paperwork about allocation and what did it say ?

 

I got the paperwork back in January so its been going on a while but I am only just understanding whats going on.

Both parties agreed to Small claims track and the hearing went ahead at the county court. The Judge said he didnt know enough about copyright for it to continue and he had to transfer it but he didnt know how so had to refer to paperwork which took a few months.

 

IPEC Judge ruled it suitable for small claims track but the defendant rejected this track for the reasons "its been going on too long and the defendant wishes to bring it to a swift conclusion". They also filed for a Summary Judgement stating my case has no real prospect of success. The claim was for just £3000 but since it has been taken off the small claims track they are now claiming £3000 in costs against me. I feel like I have been totally screwed over by the court system as I made the claim under the small claims route. The county court judge really screwed this up for me

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I think right now I am on damage limitation as theres no way I can afford to pay those kind of fees!

 

I am self employed and in order to protect the business assets from this I am thinking either 1, form a new limited company and sell the assets to that company or 2. Sell the assets into a Discretionary Trust. Does anyone have experience of this?

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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?

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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?

 

 

I dont think the judge wil let it go to the small claims track (FYI its the same judge that heard the apple V Samsung case!)

this is a small spat between 2 small businesses nobody has heard of so this has escalated out of proportion.

 

The otherside refused small claims track for the sole reason "we want a quick resolution its been going on too long"

They have applied to strike out the claim it hasnt yet been listed and I havnt yet supplied a witness statement (the defendant has supplied a NEW witness statement which is different to the previous statement they made. IE the reason for downloading photos from my website has now changed to suit their defence)

 

The case I believe is 50/50 but they are allowed on multi track to claim up to the amount I was claiming in costs

 

I have already been told that should my claim be successful it has little to no monetary value.

 

FYI they have already racked up solicitors costs in excess of £10,000 (against a £3000 claim!)

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Has the case actually been allocated yet?

 

 

it has been allocated to the Multi track in mid january, but they have agreed not to list it for a hearing until my complaint against the county court that transferred it gets a response.

 

I made a formal complaint against the court for allocating it to the wrong track (and a few other things that werent done correctly)

 

The hearing thats waiting to be listed is the defences hearing to strike out my claim

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CPR 63.27 (which applies to Intellectual Property Claims) says:

 

(3) If either –

(a) the requirements of rule 63.27(1)(a), (b) and © are satisfied, but in the defence the defendant objects to the claim being allocated to the small claims track; or

(b) the requirements of rule 63.27(1)(a) and (b) are satisfied, but not ©, and in the defence the defendant requests that the claim be allocated to the small claims track,

the court will allocate the claim to the small claims track or the multi-track in accordance with Part 26 (case management – preliminary stage). For that purpose the court will send the parties a directions questionnaire and require them to file completed directions questionnaires and to serve them on all other parties within 14 days.

 

CPR 26 says:

 

Re-allocation of claims and the variation of directions

11.1

(1) Where a party is dissatisfied with an order made allocating the claim to a track he may appeal or apply to the court to re-allocate the claim.

 

 

In light of the above, would it be a good idea to make an application using N244 for your claim to be reallocated to the small claims track? I am struggling to see why it was allocated in the multi-track in the first place but I say that without having had sight of the directions questionnaire.

 

Can you not make an application for the claim to be allocated to the small claims track, to be heard at the same hearing as the strike-out application?

 

You should be aware that complaining to the county court will not get you anywhere. My understanding is that the court manager doesn't have the power to reallocate your case. If you do want to get this reallocated you need to be getting on with, waiting for the county court to respond to a separate complaint is not a good reason.

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CPR 63.27 (which applies to Intellectual Property Claims) says:

 

(3) If either –

(a) the requirements of rule 63.27(1)(a), (b) and © are satisfied, but in the defence the defendant objects to the claim being allocated to the small claims track; or

(b) the requirements of rule 63.27(1)(a) and (b) are satisfied, but not ©, and in the defence the defendant requests that the claim be allocated to the small claims track,

the court will allocate the claim to the small claims track or the multi-track in accordance with Part 26 (case management – preliminary stage). For that purpose the court will send the parties a directions questionnaire and require them to file completed directions questionnaires and to serve them on all other parties within 14 days.

 

CPR 26 says:

 

Re-allocation of claims and the variation of directions

11.1

(1) Where a party is dissatisfied with an order made allocating the claim to a track he may appeal or apply to the court to re-allocate the claim.

 

 

In light of the above, would it be a good idea to make an application using N244 for your claim to be reallocated to the small claims track? I am struggling to see why it was allocated in the multi-track in the first place but I say that without having had sight of the directions questionnaire.

 

Can you not make an application for the claim to be allocated to the small claims track, to be heard at the same hearing as the strike-out application?

 

You should be aware that complaining to the county court will not get you anywhere. My understanding is that the court manager doesn't have the power to reallocate your case. If you do want to get this reallocated you need to be getting on with, waiting for the county court to respond to a separate complaint is not a good reason.

 

 

 

Thanks for taking the time to reply. As for the allocation questionaire I dont recall receiving one but I do know the defendant had one because I was sent a copy.

 

I thought about making an application for small claims but two things stopped me, 1 I have to pay another court fee of around £200 and 2 The judge already moved it into the multi track so they are unlikely to change their minds?

 

The defendant has already amassed over £10k of costs so there would be no way this would be accepted by them

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CPR 63.27 (which applies to Intellectual Property Claims) says:

 

(3) If either –

(a) the requirements of rule 63.27(1)(a), (b) and © are satisfied, but in the defence the defendant objects to the claim being allocated to the small claims track; or

(b) the requirements of rule 63.27(1)(a) and (b) are satisfied, but not ©, and in the defence the defendant requests that the claim be allocated to the small claims track,

the court will allocate the claim to the small claims track or the multi-track in accordance with Part 26 (case management – preliminary stage). For that purpose the court will send the parties a directions questionnaire and require them to file completed directions questionnaires and to serve them on all other parties within 14 days.

 

CPR 26 says:

 

Re-allocation of claims and the variation of directions

11.1

(1) Where a party is dissatisfied with an order made allocating the claim to a track he may appeal or apply to the court to re-allocate the claim.

 

 

In light of the above, would it be a good idea to make an application using N244 for your claim to be reallocated to the small claims track? I am struggling to see why it was allocated in the multi-track in the first place but I say that without having had sight of the directions questionnaire.

 

Can you not make an application for the claim to be allocated to the small claims track, to be heard at the same hearing as the strike-out application?

 

You should be aware that complaining to the county court will not get you anywhere. My understanding is that the court manager doesn't have the power to reallocate your case. If you do want to get this reallocated you need to be getting on with, waiting for the county court to respond to a separate complaint is not a good reason.

 

 

 

 

is it too late now to appeal against the WIgan courts transfer as it was sent to the wrong track?

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Thanks for taking the time to reply. As for the allocation questionaire I dont recall receiving one but I do know the defendant had one because I was sent a copy.

 

I thought about making an application for small claims but two things stopped me, 1 I have to pay another court fee of around £200 and 2 The judge already moved it into the multi track so they are unlikely to change their minds?

 

I would have thought you should have received a directions questionnaire. If the other side returned theirs but you didn't return yours, that would explain why the case got allocated to their preferred track. Maybe worth asking the court about this.

 

Yes there would be a fee involved to make a formal application.

 

The defendant has already amassed over £10k of costs so there would be no way this would be accepted by them

Who said they need to accept it? If the claim is purely for monetary damages of less than £10k it is clearly small claims territory (although if your claim was too broad or unquantified that may be an issue).

 

is it too late now to appeal against the WIgan courts transfer as it was sent to the wrong track?

 

You aren't appealing. You are making an application. I'm not aware of a strict time limit, although it has been some time since mid-January now so that would count against you.

 

It would seem to make sense for this to be a point which gets considered at the strike-out hearing - unless you are able to settle the case beforehand.

 

I suppose the best case scenario for you is that the strike-out application gets rejected, and the case re-allocated to SCT at that hearing.

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As for the allocation questionaire I dont recall receiving one but I do know the defendant had one because I was sent a copy.
you maybe shld have had one also.

but, there is the issue of of ipec you mention

did you state that you wanted it on small ipec etc ( see para/section 5 in the link)

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/426129/patents-court-small-claims.pdf

IMO

:-):rant:

 

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thanks for the advice everyone

 

I have sent the N244 form off to IPEC asking for it to be reallocated to small claims (also pointed out the defendants reasons for objecting were invalid)

 

Also sent an N244 form off to the county court asking for the judges decision to be set aside and transferred to the correct court in IPEC (this is very late and will most likely be ignored but most definitely worth a try!)

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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.

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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).

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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).

 

ADR is always cheaper than the Court so anyone would have difficulty convincing the Court of otherwise.

 

Even if your statement is found to be true (a big doubt) the Court would alway prefer things are settled outside.

 

I have a strong feeling that the OP wants his day in Court and I pray he does.

 

I only gave him other options.

 

He has been given the right advice of asking the Court to reallocate it to small claims.

 

That is the best advice!

 

 

As a side note, how could you have used £2.5k to defend a £450 claim?

 

Anyway let's not hijack the OP's thread

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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).

 

ADR is always cheaper than the Court so anyone would have difficulty convincing the Court of otherwise.

 

Even if your statement is found to be true (a big doubt) the Court would alway prefer things are settled outside.

 

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.

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ADR usually being the better option : yes.

.

 

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

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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.

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ok so the county court returned the application i made there (I challenged their decision as they transferred to wrong court)

They said the file is with IPEC and the application has to be made from them.

 

Havnt heard anything yet from the application I made to IPEC

 

FYI The claim was for £3000, the defendant made an application to strike out the claim as it has "no real prospect of success" and is claiming costs against me of £3000.

 

 

 

Now the defendant rejected mediation at the county court, they refused to communicate with me and ignored me at every opportunity. Only AFTER the county court hearing did they respond inapproriately by attackign me personally about an alleged affair with one of their employees in the workplace and threatening to tell my alleged partner!!! they then offered me £5 compensation to settle the case (the judge said he didnt know what the claim was worth if anything it may only be a nominal £5 he didnt know - obviously they paid attention to that comment!)

 

 

As far as I am concerned the defendant has acted inappropriately from the outset and the costs and court action incured has been a result of their actions and not mine. Am I right in saying costs will not be awarded if they have acted inapproprately?

 

really appreciate help on this and how I go about pointing this out!

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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.

 

how do I go about applying or asking for ADR ?

I believe they already rejected mediation ?

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