County Court (Small Claims Track) and Multi Track)

Equaliser123

sombrero wrote: »

Do we think university has some form of protection with regard the fees if lost in court?

Friend is making Freedem of Information request.

What do you mean "protection"?

And what is the FOIA request for?

Cannot see why it should moved from small claims track. Even if it does, it should go to fast-track rather than multi track.

Wonder if their argument is that the trial will be over a number of days and is complex and for that reason small claims is inappropriate.

Your pal needs to consider making a Part 36 offer to settle if there is a risk of an adverse costs order.

sombrero

1. "Protection"...what I mean is that we feel that the University would ahve their fees paid for by some form of indemnity insurance policy..so they are not bothered about reclaiming fees from my friends son...in the same way the university solicitors would have their fees protected by the insurers. However, they deny this.

2. I mean FOI Freedon of Information. OIA is Office of Independent Adjudicators which resolves student disputes with universities etc. They wanted us to go there after we found out about OIA and we said no...3 weeks later we said ok but they wanted £4.5k in costs. Prior to case management hearing we repeated offer to go to OIA but they said ok you can but give us 4.5k in costs.

3. Moving to fast track would be a disaster as if we lose costs will still be over £30k (they have told us this).

4. We have told the court that our case will be 30 minutes and no witnesses.

5. Issuing Part 36 offer is to risky bearing mind friends son is acting on own and there would not much in way of costs anyway and more important it could pave the way to multi track or fast track.

6. CPR state financial position of parties are paramount if one part wants to make case in a higher track and also balances the parties on a level playing field.

I am fairly confident that we can keep case in small claims.

Equaliser123

Yes I think it will stay within small claims but 30 minutes for the case is hopelessly unreaslistic. Will be at least half a day as you will need to establish that the course was not which was reasonably expected. They will doubtless have a number of witnesses.

I know what the FOIA is. I don't understand what you have requested.

Re the Uni's protection against fees - as the claimant is a litigant in person anyway, the fees will not be significant.

Part 36 is a very useful way to focus their mind. It won't make any difference as to the eventual track of the case as it is kept confidential from the judge anyway. Further, if there is any adverse cost awards, it demonstrates that you have tried to resolve the matter at an early stage.

sombrero

Thanks for your reply.

1. I should have said that our side of the case will take about 30 mins to present. In the documents the solictors have stated that they will call 1 witness and 0 expert witnesses;

2. There is a dispute method at the Office of the Independent Adjudicator (OIA). University stated that this is the correct method for resolution of the dispute. We did not know about this in our discussions with university so when negotiations broke down we issued a county court summons. We were offered this method on basis of both parties bearing own costs but declined. Then when when we said ok 2/3 weeks (subject to no costs) they presented us with a bil for about 7k. Then they applied to court via case management hearing and we again offered to go to OIA (with no costs) but they said they would settle at £5k. Friends son when to case management hearing on university's application to have case struck out as OIA was the correct medium plus claimants wording in claim was wrong. Friends son said he would go to OIA or Court Mediation. Barrister argued for case to be struck out or if not case raised to multi track. Judge stayed case and said case can go to OIA or Mediation. No order on costs but reserved. Case was not struck out as judge said he would not strike out and would not raise to multi track at this stage. Solicitors since acting like they won in court!!!

3. As for costs we have been advised that university are paying the solicitors for the fees which we have been advised are now at around £10k and that if the case goes to a full hearing the fees will be over £30k and perhaps £40k. I cant believe that they would purse this with chance of recovery. Friends son lives with parents and has a low paying job. His debts are more than his assets. He will go bankrupt if there is a judgement against him.

4 Part 36 would be good if case in Fast Track or higher and he had legal costs. Concerned it could be used to make the case go from small claims to multi track.

5. We feel we have a genuine case against the university who accepted mistakes in writing. We are now awaiting a letter from the court following friends request to have a hearing in the small claims court.

Equaliser123

You may not get a letter from the Court. Courts simply don't do that. What they will do is ask a Judge to make a decision in this matter.

Part 36 is confidential from the Judge so won't make any difference to the track. If it were me, I would say that if the matter is transferred to fast or multi track then I would instruct solicitors to pursue it. On this basis, the P.36 offer is very relevant for an early settlement and will demonstrate to the Court that you are attempting to resolve matters.

They won't have a chance of recovering the full costs even if they are successful.

Sounds like you are required to go to the OIA. Would be interested to know what the dispute resolution clause says. If it constitutes a valid dispute resolution clause then you were wrong to issue in Court. If not compulsory, then the case could continue in Court.

Which firm are acting for the Defendant? PM me if necessary.

sombrero

Equaliser - You have IM

There is no case law saying you cant sue a university. Barrister argued for a strike out based on a case (different circumstances) and therefore this case should have been dealt with by OIA. Judge disagreed. Barrister then argued for Multi Track. My friends son just said he was happy to go to Mediation or OIA but never mentioned costs. Case stayed pending mediation (no mention of OIA in Decision). We feel we won Round 1.

We have stated in writing that we will go to OIA or Mediation. Solicitors have refused unless we pay costs.

As there is a deadline to go to OIA shortly we have written to the court advising of our position, solictors position, position on solicitors costs and giving our financial situation and saying we want the stay lifted and that we want a case in small claims track. We called the court yesterday and they said its with a judge for a decision but they expect the judge to give a hearing in small claims track.

My guess is that solictors for defendant will then go back to court and ask for case to be moved to multi claims track.

Equaliser123

PM back....

sombrero

PM back thanks

alistair.long

Firstly you have been scared by a barrister, this is normal and they want you to accept any stupid offer they give you.

Court Rules state that the claim is small claims so costs are limited, your friend can also claim £9.25 an hour under CPR 48.6 limited to 2/3 of what a solicitor would get (£80 for a solicitor).
The new costs of fast or multi track will only apply when the track has been changed, as the case is soo far near the end it is unlicky to be more then £3k.

Keep it in small claims track, write letter and recap all the documents you have and be nice and comunicate in letter and follow up with a call to make sure they have received the docs (letter are proof).

Mediation is free and costs are not paid for mediation so therefore even if you did pay costs you dont have to at mediation. It is unlikly the Solicitor will come to mediation for £80 if they win.

Will this case goto Multi track? I dont think it will even goto fast track as it was allocated to small claims. If there is a messup and the case is struck out, and then put back in, it may change track, so dont mess up.

Negotiate and ask the Solicitors what there client is prepared to give.

I believe a small claims loss will only be £80 for you, however I have never lost and paid so I dont realy know.

gordikin

sombrero read the last 4 words of post 20 and ignore everything before that.