IMPORTANT: Please make sure your posts do not contain any personally identifiable information (both your own and that of others). When uploading images, please take care that you have redacted all personal information including QR codes, number plates and reference numbers.

Maxing Out the Counterclaim - Call to action!!!

24

Comments

  • bargepole
    bargepole Posts: 3,231
    Name Dropper Combo Breaker First Post First Anniversary
    Forumite
    The_Deep wrote: »
    ... What would TMOTCO consider to be unreasonable?

    ... Many people treat them as omnipotent, in fact they are usually retired solicitors who spent their working lives dealing with property sales, divorce, wills, custody, etc. I suspect that few would be able to pass the Foreign Office exams.

    The opinion of the Man on the Clapham Omnibus has nothing to do with it.

    Most District Judges (full time) have previously been solicitors or barristers, but are not usually retired. Deputy District Judges (part time) typically are working as practising solicitors when not in court. In both cases, they need a minimum of 5 years advocacy experience before being appointed as Judges.

    Unreasonable behaviour costs, as set out in CPR 27.14(2)(g) are generally only awarded when the losing party has failed to comply with court directions, or failed to turn up for the hearing without notice. Arguing a case, however flimsy or hopeless, is not a reason for awarding them, there is settled case law on that.

    And I suspect that few Foreign Office bods would be able to pass the Law exams.

    I have been providing assistance, including Lay Representation at Court hearings (current score: won 57, lost 14), to defendants in parking cases for over 5 years. I have an LLB (Hons) degree, and have a Graduate Diploma in Civil Litigation from CILEx. However, any advice given on these forums by me is NOT formal legal advice, and I accept no liability for its accuracy.
  • The_Deep
    The_Deep Posts: 16,830 Forumite
    edited 9 October 2017 at 11:38AM
    The opinion of the Man on the Clapham Omnibus has nothing to do with it.

    It has everyhing to do with it. That is why the Berlin Wall collapsed, why children are no longer sent up chimneys, why HomeForm Group went into liquidation, (did you ever work for them)?

    Ignore public opinion at your peril.

    And I suspect that few Foreign Office bods would be able to pass the Law exams

    Most of them have!
    You never know how far you can go until you go too far.
  • bargepole
    bargepole Posts: 3,231
    Name Dropper Combo Breaker First Post First Anniversary
    Forumite
    The_Deep wrote: »
    ... Ignore public opinion at your peril. ...

    You are confusing the roles of the Legislature and the Judiciary, which is a basic building block of the Separation of Powers, one of the fundamental principles of the UK constitution - this is covered in the first term of the first year of any Law degree course.

    Parliament makes the laws, by means of Acts of Parliament (statutes), Statutory Instruments (amendments to existing Acts), and, currently, Regulations and Directives from the EU. The laws they pass may depend on manifesto commitments of whichever political party is in power, and influenced to some extent by public opinion, and the changing nature of society.

    But public opinion doesn't always hold sway - there has been a majority in favour of the death penalty ever since it was abolished, but MPs aren't going to vote on that, or even debate it, any time soon.

    The job of the Judges is to interpret and apply the law as it currently stands. They may not agree with it, and they may be aware that they are going against public opinion (as we have seen from obiter remarks in some judgments), but their job is not to make the laws, they are bound by statute, or by previous judicial decisions from a higher court (case law).

    I have been providing assistance, including Lay Representation at Court hearings (current score: won 57, lost 14), to defendants in parking cases for over 5 years. I have an LLB (Hons) degree, and have a Graduate Diploma in Civil Litigation from CILEx. However, any advice given on these forums by me is NOT formal legal advice, and I accept no liability for its accuracy.
  • safarmuk
    safarmuk Posts: 648 Forumite
    edited 9 October 2017 at 12:30PM
    there has been a majority in favour of the death penalty ever since it was abolished,
    With the utmost respect, not since 2015 it seems, when it dipped below 50% for the first time ... but prior to that yes, the majority were in favour.
    http://www.bbc.co.uk/news/uk-32061822

    However this is a poll ... and we all know the reliability of those! :)
  • The_Deep
    The_Deep Posts: 16,830 Forumite
    edited 9 October 2017 at 12:35PM
    You are confusing the roles of the Legislature and the Judiciary,

    I can assure you that I am not.

    But public opinion doesn't always hold sway - there has been a majority in favour of the death penalty ever since it was abolished, but MPs aren't going to vote on that, or even debate it, any time soon.

    That is because we are signatories of the European Convention on Human Rights and Fundamental Freedoms, it has very little to do with CPRs.

    The job of the Judges is to interpret and apply the law as it currently stands.

    Indeed, but I understand that the law in this instance is imprecise, it does not define "unreasonable conduct". in which case "reasonabily" can be argued.

    but their job is not to make the laws, they are bound by statute, or by previous judicial decisions from a higher court (case law).

    I understand that, my job was to advise ministers making the law

    You seem to see things in black and white Mr C, that is not always so.
    You never know how far you can go until you go too far.
  • But litigants are asking for R27.14(2)(g) costs orders ALL the time.


    It's been held time and time again that a flimsy case is not grounds for such an order, even though a normal person would say this was the very instance in which such an order should be given - flimsy case=should never have been pursued, ergo unreasonable.


    It's also been held time and again that breaching the pre-action obligations likewise fails to reach the threshold required - even though the Practice Direction very clearly contains sanctions for non-compliance, including by way of costs orders, and I've provided all the reported case law for litigants to present in asking for a 27.14(2)(g) costs order.


    The fact is, these orders are very rarely given. And it's not because people don't try, they do (on the forum we advise people to go for these costs orders all the time). This is the reality, much as we'd like it not to be, public opinion or no public opinion.


    I agree with your assessment of the quality of many DJs, but we are stuck with that. They are not there to reflect public opinion they are there to interpret and apply the law as they see fit and in their discretion. Even when they are wrong their decisions are not always appealable, and even if they were people simply do not have the appetite or the time to pursue appeals over these sorts of small claims.


    I agree that far more 27.14(2)(g) costs orders should be given, but the courts require persuasion and it just doesn't work very often.
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
  • The_Deep
    The_Deep Posts: 16,830 Forumite
    flimsy case=should never have been pursued,


    Thank you LOC, but I am not talking about flimsy cases. I am talking about well argued justified cases where to PPC and/or their lawyers have acted unreasonably. IMO this includes most cases presented by Gladstones, BWL, Miah, SCS, etc, Which of the examples in post11 do you think are not unreasonable?

    The fact is, these orders are very rarely given. And it's not because people don't try, they do

    No, it is because the judges incorrectly apply the law. We should be flooding the courts with these claims and raising merry hell when they are not allowed.
    You never know how far you can go until you go too far.
  • The only way of challenging a decision refusing costs (no other way of raising merry hell about it) is to appeal. Most LiPs just don’t want to do that. The application fee is £150. In theory it’s great but the reality is that the vast majority of people don’t want to risk/devote the time to an appeal.
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
  • The only way of challenging a decision refusing costs (no other way of raising merry hell about it) is to appeal. Most LiPs just don’t want to do that. The application fee is £150. In theory it’s great but the reality is that the vast majority of people don’t want to risk/devote the time to an appeal.



    I wonder if it would be worth crowd-funding an appeal to get a case that we could use in our initial submissions [albeit that it wouldn't be binding?]
  • There are two strands under which R27.14(2)(g) costs could be sought:


    1. Failure to comply with the pre-action obligations:
    I've already done full arguments on this, quoting the case law, which many litigants have used. In my view, without quoting the case law the DJs are more likely to gloss over the issue, but with the case law clearly showing that litigants should be and have been punished on costs the argument is more powerful. It is my experience that judges reluctant to make orders can be persuaded to do so if shown the case law to back up the argument. If they go against the case law, their decision is vulnerable to appeal on a point of law.


    2. Unreasonable conduct in the litigation itself:
    We need to come up with some case law for litigants to present in making a R27.14(2)(g) argument under this head. There are the obvious failures like refusing to answer reasonable requests for information, refusal to particularise the PoC adequately, ignoring reasonable correspondence, failing to accept a reasonable offer of settlement (R27.14(3)).
    As for the argument that the case was so weak that it should never have been brought the situation is far from clear and I've looked into the case law briefly:


    Spearing v Jackson [2000] CLY 169:
    it was held that continuing with a claim which the claimant must have known had little prospect of success amounted to unreasonable behaviour.

    Clohessy v Homes (2003):
    DJ decision (Stuart-Brown, sitting in Bristol County Court) made an unreasonable costs order against the Claimant where it was held that on any objective assessment, the claim was likely to have failed from the outset.


    so these two back up the last argument. However, the most recent and binding authority is this one which unfortunately leaves things as unclear as ever:

    Dammermann v Lanyon Bowdler LLP [2017] EWCA Civ 269:
    The Appeal Court gave important guidance on the ‘unreasonable behaviour’ test. It said that it could not give ‘general guidance’ because all cases ‘must be highly fact-sensitive’, but it referred to Sir Thomas Bingham MR’s comments in Ridehalgh v Horsefield [1994] Ch 205, 232F in the context of wasted costs. In that case, Bingham held that: ‘Conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently.’. He went on to provide guidance: ‘The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting in a practitioner’s judgement, but it is not unreasonable.’ Longmore and McFarlane LJJ endorsed Bingham’s guidance: ‘We think that the above dictum should give sufficient guidance on the word “unreasonably” to district judges and circuit judges dealing with cases allocated to the small claims track'.


    Therefore, a party’s conduct will be regarded as unreasonable in the absence of a reasonable explanation.


    It was specifically noted by the Court of Appeal in Dammermann that parties must not be deterred from bringing claims. As Longmore and McFarlane LJJ warned: ‘It would be unfortunate if litigants were too easily deterred from using the small claims track by the risk of being held to have behaved unreasonably and thus rendering themselves liable for costs.'


    I don't think Dammerman really helps at all. The argument over whether a case should ever have been brought and whether this meets the R27.14(2)(g) threshold remains a clouded issue. I suppose if you can show that the same argument has been lost countless times before (eg the age-old Elliott v Loake/AJ Films arguments) then you're more likely to show that the conduct in pursuing the case was unreasonable. claxtome's 1 big car park thread is a good example: the PPC lost a couple of weeks ago on the exact same defence he is running, in the same court and based on the same facts, but still they are proceeding against him and, so far, have ignored his drop hands offer. I think he has a reasonable prospect of showing unreasonableness (excuse the pun).
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
This discussion has been closed.
Meet your Ambassadors

Categories

  • All Categories
  • 342.5K Banking & Borrowing
  • 249.9K Reduce Debt & Boost Income
  • 449.4K Spending & Discounts
  • 234.6K Work, Benefits & Business
  • 607.1K Mortgages, Homes & Bills
  • 172.8K Life & Family
  • 247.4K Travel & Transport
  • 1.5M Hobbies & Leisure
  • 15.8K Discuss & Feedback
  • 15.1K Coronavirus Support Boards