Small claims and Fasttrack costs

[Bona]

Here posted a letter I wrote to Lord Faulkner and reply and my reply

 

Dear Sir/Madam

 

Please clarify why a case taken out in the smalll claims court by a litigant in person should be fast tracked. and not left where it is . Judges in a large number of cases are transfering claims to fast track where the amount is under 5000 thus causing a litigant in person the chance that costs can be awarded this seems to go against the court protocol

 

Yours faithfully

xxxxxxx

 

 

From:

"Customer Services (CSHQ)"

To:

Subject:

FW: Urgent response needed

Date:

Wed, 7 Feb 2007 09:59:55 -0000

 

Dear Mrs xxxxxxxxx

Thank you for your e-mail. It was passed to this office yesterday for reply. It may be helpful if I explain that only nominal costs are allowed in the Small Claims Track. If the other party uses a solicitor they are only allowed to charge for their in preparing the case, not any attendances the solicitor makes at a hearing. If it is likely that the case will be allocated to the Fast Track you are correct in that the costs could be a lot higher. However this is something you will have to decide for yourselves if you are a litigant in person. It will be down to you to decide whether it is sensible to carry on with the litigation. It is open to you to seek independent legal advice yourself.

 

R D Meek

 

Russell Meek

Customer Service Unit

H M Courts Service

020 7189 2000

 

From:

Sent:

31 January 2007 11:53

To:

general.queries

Subject:

Urgent response needed

My Address

 

 

For the Attention of Lord Faulkner

 

Dept of Constitutional Affairs

 

Selbourne House

 

Victoria Road

 

London

 

 

31st January 2007

 

 

Dear Sir,

 

Below are the Civil procedure rules, I would like clarification on several items

 

 

1.

Ensuring that the parties are on an equal footing

, how does this apply to litigants in person.

 

 

2.

Dealing with the case proportionate to the financial position of each party

, when a litigant is in person either as the claimant or the defendant should the opposing side wheel in the Big Guns Solicitor and Barristers and then add extortionate fees when case is transferred from small claims to fast track

 

Any further clarification to any other points below when it involves litigants in person would be appreciated.

 

 

Civil Procedure Rules Background

 

The Civil Procedure Rules are a procedural code with the overriding objective of enabling the court to deal with cases justly.

Dealing with a case justly includes, so far as is practicable -

ensuring that the parties are on an equal footing;

saving expense;

dealing with the case in ways which are proportionate -

to the amount of money involved;

to the importance of the case;

to the complexity of the issues; and

to the financial position of each party;

ensuring that it is dealt with expeditiously and fairly; and

allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.

Background to the rules

 

The Civil Procedure Rules were introduced in 1999, and replace many of the provisions of the old Rules of the Supreme Court (RSC) and county court rules (CCR). They govern the practice and procedure to be followed in the civil division of the Court of Appeal, the High Court, and County Courts.

 

Although I appreciate you are very busy, this matter is of some importance and urgency and clarification can be e-mailed to me at

[email protected]

as soon as possible

Yours faithfully

 

xxxxxxxxxx

 

 

 

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[Grapes]

Well done you! I didnt think of Lord Faulkner but have just despatched letters to FSO,FSA,OFT,Local MP et al highlighting the use of contract terms to claim for costs when the clause seemed only intended for the lifetime of the contract thus creating a playing field in which they cant lose and the extortionate level of costs applied to single litigants etc when the cases are within the fast track.

Maybe I am being naive but the scales of justice seem tipped! And its definate not in the small guys favour!

 

Does it seem from Mr Meeks answer that the courts are making sure the solicitors get paid or am I reading it wrong? Or just cynical?

[Bona]

Lord Faulkners email address is [email protected] if we all send of emails like this ok they are sent to another department but some one will get the message

[Grapes]

Email will be on the way shortly.

[Guest willowb]

Will send mine too, well done Bona....great idea, this definately needs addressing.

Wxxx

[kennyh]

Hi Bona,

I know that I'm not directly involved but the reply looks to me to be a typical civil service brush off - and having been in the CS for 22 years, that is an area I should, regrettably be familier with!

Is it worth floating a 'supplementary' along the lines

"R D Meek of the Customer Service Unit in HM Courts Service writes " ..... If it is likely that the case will be allocated to the Fast Track you are correct in that the costs could be a lot higher. However this is something you will have to decide for yourselves if you are a litigant in person. It will be down to you to decide whether it is sensible to carry on with the litigation. It is open to you to seek independent legal advice yourself."

This is a flagrant 'sidestep' of the original request which asked "Please clarify why a case taken out in the smalll claims court by a litigant in person should be fast tracked. and not left where it is . Judges in a large number of cases are transfering claims to fast track where the amount is under 5000 thus causing a litigant in person the chance that costs can be awarded this seems to go against the court protocol"

Would you please persuade the officer concerned to specifically answer the question as put and I would respectfully request that those dealing with this bear in mind that we are only 'lay' persons, who would benefit from plain logic and words."

I'm almost tempted to sign "furious" of Maidstone!

[dolly]

Completely evaded the question in my opinion.

[Longleigh10]

I second that! If my claim gets allocated to Fast Track I shall appeal the decision - don't know how yet, but read a recent thread where the judge asked why the claimant had not

[Guest willowb]

It still doesn't answer the question about counter-claims for costs with ref to mortgage indemnity clauses....we are still at risk (even in small-claims track) for that aren't we? Or am I not getting it? I have asked this question in my thread but everyone is understandably very busy here.

 

Wxxx

[Guest Zooman]

The problem is ladies and gentleman you signed the contract freely, and as such the courts have no powers to act to simple dismiss sections of that contract as you do not feel they are fair.

[Guest willowb]

Zooman, isn't that the whole unlawful charges argument? The fact that we signed a contract and agreed to terms and conditions doesn't make the charges lawful.....I know that it's a lot more complicated with mortgages that's why in my post #9 I ask about indemnity clauses, is that what you are refering to? Sorry, just need more.

 

Wxxx

[Guest Zooman]

no as all banks accounts have that clause in and you have no market choices, where not all mortgages have the ERC. You where rewarded for agreeing to the ERC in someway, it may have been a lower APR for 3 years, or in the event you had bad credit it may simple be that they allowed you to have a loan but you had some form of reward.

 

That alone does mean it was not a plenty clause but a get out clause.

 

The Judge said to Maroonfox5 "you wanted you slice of cake and then went back for a second slice"

[Guest willowb]

I don't agree, we changed our rate to fixed for 5 years because of all the scare mongering going on at the time in the press. RBS still got their share of the cake as interest rates stayed exactly the same if not decreased (as my memory serves) so, the fact that we 'fell on hard times' and they wouldn't remortgage for us so therefore we had to go with another lender is not just cause for them to charge us over £4k IMO.

 

Wxxx

[biffa1965]

my hearing is listed on 21st march small claim v Birmingham Mids. they have until 23 feb to complete their bundle ive already submitted mine...are there any possible cost implications to me, if i withdrew now. theyve made no application for costs and it is appearnt theyre not going to negotiate....biffa

[Guest Zooman]

willow, I know you do not agree, if you did you would not be suing them, what should worry you is that the cases we know of, the Judges have agreed with that point.

[Bona]

Look Guys In this thread I'm not really interested in the rights and wrongs of claims I have my own views and will if I get the chance air them in the High court in about two weeks this thread is to encourage as many people as possible to email Lord |faulkner if they suddenly get bobbarded with hundres of email asking why small claims are going fast track some one will do something about it I will go and see him at the Houses of parliment if we dont get satisfacotry replies but we need to all email

 

Bona

[Guest Zooman]

my hearing is listed on 21st march small claim v Birmingham Mids. they have until 23 feb to complete their bundle ive already submitted mine...are there any possible cost implications to me, if i withdrew now. they made no application for costs and it is apparent they're not going to negotiate....biffa

If you want to withdraw, make an offer to do so, on the grounds they do not chase costs, in teh event they say "hang on sec, it already costs us £xx", discontinue then haggle about that later, the longer you leave it the more work they will do, and as such the costs will go UP.

[biffa1965]

what ? even in small claims they can claw back costs?

[Guest Zooman]

Look Guys In this thread I'm not really interested in the rights and wrongs of claims I have my own views and will if I get the chance air them in the High court in about two weeks this thread is to encourage as many people as possible to email Lord |faulkner if they suddenly get bobbarded with hundres of email asking why small claims are going fast track some one will do something about it I will go and see him at the Houses of parliment if we dont get satisfacotry replies but we need to all email

 

Bona

Sorry Bona, I am not going to sit back and allow users to think they have a chance (I hope your case proves me wrong), the emails are just a waste of time and will just annoy the person who is getting them.

 

As to track it is all dealt on the courts own website and CPR

 

The basic guide by which claims are normally allocated to a track is the amount in dispute, although other factors such as the complexity of the case will also be considered (Rules 26.6 - 26.8). A leaflet available from the court office explains the limits in greater detail.

 

I would say

part 26.8 is more what you are looking for, have read and consider which track you would put it on.

[Grapes]

Sorry, just a quick question for Zooman.

So you are saying everyone has a choice on mortgage? Well we didnt, we had a sub prime mortgage that was the ONLY one at the time we could get. We were paying well above base and had paid for the pleasure of getting the mortgage. If we could have picked another lender we would have done. we had to get out of the mortgage because we were being repossessed and they would not agree to spread the arrears, another bone of contention. I can assure you I never had a first bite of any cherry, let alone the 2nd!

 

I thought the subject of indemnity clauses was covered by UCTA

"The extent and scope of indemnity clauses are regulated by the Unfair Contract Terms Act. A consumer cannot be made to indemnify another party to the contract or a third party to the contract expect to the extent that term of the contract meets the requirements of the test of reasonableness"

Does this come under fairness? Getting you to pay their defence in the small claims?

 

Sorry Bona. Email sent regarding fast track by the way.

[Guest Zooman]

what ? even in small claims they can claw back costs?

I think they may be for a few reasons, but the only one I will share is your contract may have waived your rights to cost protection in any track.

 

If this may even be the case, I would suggest booking an appointment with a solicitor, tell them what your appointment is about and ask them to give their verdict on it after seeing your contract.

 

I am hoping my readings are wrong on this.

[Bona]

No I disagree emails arn"t a waste of time to let them walk all over us is the proceedure rules state that parties should be delt with on equal footing and the finacial position of each party therfore if a claim is fasttraked from the small claims to keep it on the same footing costs shaould not be awarded.

bona

[Guest Zooman]

Sorry, just a quick question for Zooman.

So you are saying everyone has a choice on mortgage? Well we didnt, we had a sub prime mortgage that was the ONLY one at the time we could get. We were paying well above base and had paid for the pleasure of getting the mortgage. If we could have picked another lender we would have done. we had to get out of the mortgage because we were being repossessed and they would not agree to spread the arrears, another bone of contention. I can assure you I never had a first bite of any cherry, let alone the 2nd!

 

I thought the subject of indemnity clauses was covered by UCTA

"The extent and scope of indemnity clauses are regulated by the Unfair Contract Terms Act. A consumer cannot be made to indemnify another party to the contract or a third party to the contract expect to the extent that term of the contract meets the requirements of the test of reasonableness"

Does this come under fairness? Getting you to pay their defence in the small claims?

 

Sorry Bona. Email sent regarding fast track by the way.

going for my dinner now, please do not hate me for this, but the choice was not to take a mortgage, and rent. Sorry but that is what they will say to you in court.

 

And to the subject of fairness, what has that got to do with contract law, I spoken to most the people who have lost now, and now they been though it they understand that the idea of fairness has no place in the court room.

 

Again sorry, but if you think I'm a pain, wait until your in court room.

[Grapes]

Ummm time to return to quietly reading I think .....

Never was any good at this thread thing.

[Guest Zooman]

No I disagree emails arn"t a waste of time to let them walk all over us is the proceedure rules state that parties should be delt with on equal footing and the finacial position of each party therfore if a claim is fasttraked from the small claims to keep it on the same footing costs shaould not be awarded.

bona

equal footing means that you are free to hire a lawyer, or in fact not even bring a claim. You will never get a court to keep someone out of their money, it will never happen, they have a duty to ensure the injured party in but back in a position that was before the injury.

 

I feel the courts feel these are unmeritorious claims, and as such if this is the case they will not protect the claimant from costs. These claims are doing what the court and mortgage companies want acting as a deterrent to others, I have a feeling some are not going to listen to the warning drums but I hope you are not one of those.