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  • FIRST POST
    • Computersaysno
    • By Computersaysno 6th Oct 17, 9:55 AM
    • 795Posts
    • 595Thanks
    Computersaysno
    Maxing Out the Counterclaim - Call to action!!!
    • #1
    • 6th Oct 17, 9:55 AM
    Maxing Out the Counterclaim - Call to action!!! 6th Oct 17 at 9:55 AM
    Calling all experts on here...


    Many PPCs don't even bother turning up to court if the defendant puts in a decent defence and WS.


    The 'typical/normal' defendant will at most, if they are aware and bring evidence and are lucky, get a max of £95 [+ parking/mileage] for the day they've had to take off work. No compensation for time spent researching defence etc.


    So my question is .....How can we generate a maximum counterclaim [submitted well before the hearing date] that makes the PPC regret not turning up.


    I'll start the ball rolling....


    DPA breach claim - worth £250-£750

    Mileage to investigate and take photos at the site - [multiple visits] - 40p per mile

    Time to prep a defence etc @ £19/hr - how many hrs would seem sensible??

    Postage costs


    Please feel free to add any more you have...




    Hopefully we can get it over the £800 that would allow a 'win' to be escalated to the High Court and/or the PPC to be wound up....
    Welcome to the world of 'Protect the brand at the cost of free speech'
Page 2
    • Loadsofchildren123
    • By Loadsofchildren123 10th Oct 17, 11:52 AM
    • 1,247 Posts
    • 2,119 Thanks
    Loadsofchildren123
    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).
    • safarmuk
    • By safarmuk 10th Oct 17, 12:22 PM
    • 559 Posts
    • 975 Thanks
    safarmuk
    I think a "drop hands" offer (pertinent to saving the defendants and courts time and costs) outlining very clearly why the claim has no prospect of success AND stating categorically why would be a very good case for unreasonable behaviour especially if in the hearing itself those points were exactly what the DJ ruled in favour of the defendant on.

    I think we should encourage all users of this site to send in such a "drop hands" offer going forward (where the case is very strong such as claxtome's).
    • The Deep
    • By The Deep 10th Oct 17, 12:58 PM
    • 7,155 Posts
    • 6,202 Thanks
    The Deep
    think we should encourage all users of this site to send in such a "drop hands" offer


    I don't. I think that we should take every opportunity we can to stiff them for as much money as we can.


    Sending them an LBA costs pence, their having to deal with it costs £££.
    You never know how far you can go until you go too far.
    • Computersaysno
    • By Computersaysno 10th Oct 17, 3:18 PM
    • 795 Posts
    • 595 Thanks
    Computersaysno
    I've had a few run ins and the best thing to do is to immedaitekly slap in a counterclaim...that way they simply can't drop it, or if they do, you can still go to court and make a profit on the counterclaim
    Welcome to the world of 'Protect the brand at the cost of free speech'
    • Computersaysno
    • By Computersaysno 10th Oct 17, 3:20 PM
    • 795 Posts
    • 595 Thanks
    Computersaysno
    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.
    Originally posted by Loadsofchildren123
    Are you happy to share ?? Where can we get a copy of this??
    Welcome to the world of 'Protect the brand at the cost of free speech'
    • beamerguy
    • By beamerguy 10th Oct 17, 3:22 PM
    • 6,142 Posts
    • 7,852 Thanks
    beamerguy
    I've had a few run ins and the best thing to do is to immedaitekly slap in a counterclaim...that way they simply can't drop it, or if they do, you can still go to court and make a profit on the counterclaim
    Originally posted by Computersaysno
    In theory but what would you counterclaim that a judge
    would accept ?
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • safarmuk
    • By safarmuk 10th Oct 17, 3:29 PM
    • 559 Posts
    • 975 Thanks
    safarmuk
    think we should encourage all users of this site to send in such a "drop hands" offer

    I don't. I think that we should take every opportunity we can to stiff them for as much money as we can.

    Sending them an LBA costs pence, their having to deal with it costs £££.
    But ... we suspect that they don't read the letters sent to them in response to the LBCs, so the claim will continue regardless. So, when it does and the defendant wins this "drop hands" offer can be shown in court to support unreasonableness.
    • Loadsofchildren123
    • By Loadsofchildren123 10th Oct 17, 3:31 PM
    • 1,247 Posts
    • 2,119 Thanks
    Loadsofchildren123
    https://www.dropbox.com/preview/COSTS%20APPLICATION%20updated.docx?role=personal


    Costs arguments with case law on pre-action obligations.


    Note that this pre-dates the new Protocol so the bit on breaches may require amending, but the case law bits are still OK, and the sanctions paras of the old Practice Direction STILL apply - the Protocol specifically states this.
    • Computersaysno
    • By Computersaysno 11th Oct 17, 1:41 PM
    • 795 Posts
    • 595 Thanks
    Computersaysno
    Struggling to get that link to work/open....
    Welcome to the world of 'Protect the brand at the cost of free speech'
    • Loadsofchildren123
    • By Loadsofchildren123 11th Oct 17, 2:29 PM
    • 1,247 Posts
    • 2,119 Thanks
    Loadsofchildren123
    still not working? it works if I click on it.


    Here it is again
    https://www.dropbox.com/s/4cn1tbjiim1ycsl/COSTS%20APPLICATION%20updated.docx?dl=0


    I copied the link in a different way so it might work better this time
    • Computersaysno
    • By Computersaysno 11th Oct 17, 2:56 PM
    • 795 Posts
    • 595 Thanks
    Computersaysno
    still not working? it works if I click on it.


    Here it is again
    https://www.dropbox.com/s/4cn1tbjiim1ycsl/COSTS%20APPLICATION%20updated.docx?dl=0


    I copied the link in a different way so it might work better this time
    Originally posted by Loadsofchildren123

    Worked a treat!!! Thanks
    Welcome to the world of 'Protect the brand at the cost of free speech'
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