Abuse of Process ... District Judge tells BWLegal

[Deleted User]

I don't think we disagree.

PoFA would exclude a bolt on for a claim reliant on that codified law. C can plead to whatever it likes in relation to claims formulated on another basis.

As you point out, there are good reasons why the claim for contractual costs above that set out on the sign should fail. The passage you cite is clear that the initial fee ought to incorporate overhead and fund the scheme.

That is not quite the same as debarring a defendant from claiming still more, but I think it is powerful argument that there is no basis for it.

legal_magpie

In broader terms Courts have never allowed creditors to charge debtors for instructing debt collectors etc or even for a solicitor's letter before action. Gladstone's etc are adding £60 as a cost of trying to recover payment such as sending letters or instructing debt collectors based on some spurious contract term. Judges are regularly disallowing the extra charges on the basis that the higher figure ( the parking charge less the discount for prompt payment) includes an element of admin work. Guidelines have been given to that effect.
The actions of a few judges in not simply disallowing the extra charge but striking out the entire claim is completely different which is why the November appeals have to be contested properly as if they are allowed they will set a precedent.

beamerguy

legal_magpie wrote: »

In broader terms Courts have never allowed creditors to charge debtors for instructing debt collectors etc or even for a solicitor's letter before action. Gladstone's etc are adding £60 as a cost of trying to recover payment such as sending letters or instructing debt collectors based on some spurious contract term. Judges are regularly disallowing the extra charges on the basis that the higher figure ( the parking charge less the discount for prompt payment) includes an element of admin work. Guidelines have been given to that effect.
The actions of a few judges in not simply disallowing the extra charge but striking out the entire claim is completely different which is why the November appeals have to be contested properly as if they are allowed they will set a precedent.

A county court setting a precedence ?

If that was the case, we already have many we could use as precedence but the fact is judges around the country behave in different ways. A higher court then yes

KeithP

beamerguy wrote: »

A county court setting a precedence ?

A County Court Appeal - somewhat different.

beamerguy

KeithP wrote: »

A County Court Appeal - somewhat different.

Interesting .... so are you saying that if a motorist appealed a bad judgement and won, that would form a precedence

legal_magpie

What I am saying is that if the Circuit Judge allows the appeal it will have persuasive (not binding) authority over District Judges who would normally want a good reason to depart from the decision.
There were examples with flight delay claims, noteably Ron Huzar's claim on technical defects. The real difficulty is that, unlike flight delay claims where there are NWNF solicitors prepared to run cases for Claimants, we are talking about representing Defendants so it's unlikely that a NWNF firm would get involved.

Perhaps the parties to the appeal can find Counsel to act pro bono or possibly a crowdfunding appeal could be started to pay for representation. What is pretty clear is that the parking companies will have good legal representation, not just a solicitor's agent.

Snakes_Belly

My understanding of the Protocol is that it states that the Claimant should avoid additional costs.

In my case it was blatantly obvious that the Claimant had added on an amount that they had not paid. In their WS they cited a case that bore little relevance to justify this.

The abuse of process did not come into question in my case but if the Claimant had appealed I would have used it in my response.

BountyHunter

There is also the added twist in the Newcastle Airport cases that the Byelaws state the keeper is liable therefore they don’t rely on POFA, although the Byelaws also pre-date POFA (Byelaws argument for magistrates court aside)

[Deleted User]

The actions of a few judges in not simply disallowing the extra charge but striking out the entire claim is completely different

Agree. Strike out is always at the discretion of the court. However, the decision is usually made after filing of a defence - long before the hearing. If the case hasn't been struck by then, the remedy sought should be to exclude the costs as irrecoverable. Strike out is supposed to be an option of last resort to be balanced against the right to a fair trial.

The_Deep

Strike out is supposed to be an option of last resort to be balanced against the right to a fair trial.

If the claim is patently fraudulent does the claimant deserve a trial at all? This is a money claim not a criminal offence.