CCJ from BE Legal/Excel relating to incident in 2012

TobyZ

Hi all,

Afraid this one has come back from the dead - BW Legal did appeal it and the Court gave them another go...I was hoping they'd forget to pay the hearing fee, which would mean it would get struck out, but unfortunately they remembered so its all going ahead at the end of the month. Have resubmitted all my documents same as before, fingers crossed...

Coupon-mad

You cannot lose this pre-POFA case. Steer the Judge, be VERY clear on 'no liability' and lean on your transcripts that point the Judge in the right direction. Then go for punitive costs.

Have you drawn up a nice 4 figure set of costs to try to argue through? Like the example by sassi?

Loadsofchildren123

Just catching up on this after a long absence. I'm not sure why you did your WS at the same time as your defence. Normally the timetable is they do the PoC, you do your defence, both of you do the DQs, case gets transferred to your local court (but it's already been transferred by virtue of the set aside), local court then issues order with a trial date and dates for exchange of WS and documents.


I'm guessing the order made on your set aside included a date for the WSs/evidence bundles, so you just drafted them both together.


Your Skeleton Argument is like a crib sheet. For both you and the judge. In it you summarise your case, cross referenced by tab and page/paragraph number to your defence and WS/documents and cite from the authorities you want to rely on. There is no requirement to file a SA - although it is usually required in other non-small claims cases. It is useful because it is a one-stop shop for the judge to see what your case is and where each relevant piece of evidence is. ~For you, it is a crib sheet. You just take the judge through it paragraph by paragraph in your oral submissions on the day. Serve it 2-3 days before the hearing and file it at court by email or hard copy, and make it clear when you do that that the document is for a hearing on x date so that it reaches the judge. Take spare copies on the day in case it hasn't reached the judge/other side's representative. When you arrive, find the usher for your court and ask him if the SA reached the judge and, if not, give him a spare copy. If you search other threads for Skeleton Arguments you'll find lots of examples, I was commenting on one just last week or the week before. Make it as brief as you can, you don't need to write in whole sentences because it's essentially a cross-referencing document.


You can also cover any new issues raised by their WS in your SA and make a meal of how these issues should have come to light at a much earlier stage rather than at close of pleadings (ie at a date when there was no further provision for you to file evidence in response to their case).


For the day, make a bundle of authorities (you'll remember from your last visit that they like to have these). Many of the cases you will rely on are what we call "first instance" cases - ie unreported county court cases. These are "persuasive" rather than binding (decisions of the higher courts are binding, ie the judge HAS to follow them, decisions of lower courts are merely "persuasive" although many judges will follow their brethren's previous decisions). Include things like POFA in your bundle. If the BPA/IPC CoP is an issue you've raised then include that too. If you are relying on documents which are long, only include the relevant parts to avoid the bundle being too big.


There will probably be a Rights of Audience issue relating to the other side's advocate, but most judges choose to gloss over this and it's hard for litigants in person to argue.


Lastly, prepare, serve and file at court at least 24 hours in advance a costs schedule - you can find lots of examples on here. The one on Sassii's thread is a good one, if I say so myself - even the judge complimented it. Gem up on R27.14(2)(g) unreasonable behaviour costs. Plus there is the power to award costs under paras 13-16 of the Practice Direction - Pre-Action Conduct.


It is clear that, because you were unaware of the proceedings, you missed any LBC. They could and should have made some attempt after set aside to explain the claim to you. They'll say that the pre-action phase is long gone, but I'd argue that it still applies in this sort of scenario and common sense dictates that they should have made some attempt, albeit retrospectively, to comply with their obligation to explain the claim and how they will evidence in it, so that you may understand it in order to consider settling or so that you may properly understand it if you come to defend it (these obligations used to be the ones in paras 3, 6 and 8 of the Practice Direction, but those parts of the PD have now been replaced by similar and more stringent obligations set out in the new Protocol for Debt Claims. Argue that their failure to engage meaningfully with you should be punished (see paras 13-16 of the Practice Direction - Pre-Action Conduct for the courts powers to sanction). The point is that it was not until the WS stage that you had any real understanding of their claim, because their PoC were so completely deficient.


Set out your costs arguments at the foot of your SA.

TobyZ

Thanks LoadsOfChildren, that's a huge help - I will get on with all of what you suggest and will return if any queries arise while I'm doing it.

Loadsofchildren123

Unreasonable costs orders, and costs orders for failing to comply with pre-action obligations are rarely made. Worth raising anyway. Same thing with the Rights of Audience issue - raise it if you're confident you understand it, but with the expectation it's going to be rejected.

TobyZ

Have just received the witness statement from BW legal - the deadline for this was 14th May, but the statement arrived in an envelope postmarked 16th May, which arrived at my house this morning (17th May). Can I appeal to have this evidence struck off as it is impossible for me to respond to it in my own evidence (which I submitted ahead of deadline over the weekend)?

[Deleted User]

Strictly speaking they're debarred from relying on it, but they'll probably get cut some slack.

Google "relief from sanctions..."

TobyZ

Thanks Johnersh - in this case, the late submission comes after the initial case was originally struck out for the same reason - BW Legal submitted their evidence late then also - and only restored on appeal. Should I refer to that in arguing that they have persistently failed to meet court deadlines, despite being a law firm, even while I meet them easily despite being a defendent in person? Would that strengthen the case for having them struck out again?

EDIT - they also included documents which were not in the initial exchange of documents months ago, or in the documents in the CCJ hearing last year, and which they have made no previous mention they would be disclosing. Seems from my initial reading of some of the cases here that this might be relevant. Thoughts?

Coupon-mad

This OP just won in court re a pre-POFA Excel claim:

https://forums.moneysavingexpert.com/discussion/5785805/6-year-old-pcn-county-claim-form-received

...with a baby in tow and the BW Legal rep sitting next to her to read her bundle!

Should I refer to that in arguing that they have persistently failed to meet court deadlines, despite being a law firm, even while I meet them easily despite being a defendent in person? Would that strengthen the case for having them struck out again?

EDIT - they also included documents which were not in the initial exchange of documents months ago, or in the documents in the CCJ hearing last year, and which they have made no previous mention they would be disclosing.

At the hearing, point out all the omissions and late documents, their clear attempt to ambush you with documents and arguments never previously pleaded, etc.

And go for punitive costs on the indemnity basis.

You do need a rehearsed spiel as to why the Claimant's conduct from start to finish has been wholly unreasonable and vexatious, and a pre-POFA case thrown at a keeper is one of the easier cases to make that argument.

TobyZ

Hi all, I'm working on my skeleton argument. Something else I've realised is they make reference to emails I sent after the initial claim (which I had completely forgotten about). But they never made any reference to these emails at any stage before in this process, or (I think crucially) in the CCJ set-aside hearing, where they claimed they knew of no other means to contact me except the out of date address where the car was registered. The email used is still my current email.

This seems pretty important to me - they withheld information which demonstrated they knew of an alternative means of contacting me all along. Had they disclosed this information, which they clearly had, their whole CCJ case would have collapsed. Surely that's obstruction of justice, or at least abuse of the court system? Plus, of course, it means I never saw this evidence which they now make a great deal of, at any earlier stage, undermining my ability to properly build a defence.

What's the best way of using this against them?