County Court Claim

Le_Kirk

Disappointing for you but at least not a loss - put it down as a score draw. When will judges realise that claimants are abusing the system by failing to furnish their reps with WSs? If that had been you as a defendant that had failed to furnish a WS, I bet there would have been a different outcome and it wouldn't have been an adjournment!

mercuteio

Le_Kirk wrote: »

Disappointing for you but at least not a loss - put it down as a score draw. When will judges realise that claimants are abusing the system by failing to furnish their reps with WSs? If that had been you as a defendant that had failed to furnish a WS, I bet there would have been a different outcome and it wouldn't have been an adjournment!

Yes, I agree with that, although to be fair to the Judge, I think he had initially decided that it was fair simply to give the lawyer time to get up to speed that morning. I think it was only on realising that there was a second hearing due that he decided that it would be best to vacate the current hearing and adjourn until the next one. Oh well. The experience today fortunately allowed me to understand what it feels like in court, and I'm a lot more confident for next time, even if they're more prepared. I'm not as intimidated by the process now.

Umkomaas

I'd say you're 1-0 up at half-time. Sorry it wasn't concluded. VCS have got away with having adjournments agreed a number of times - almost too often to be a coincidence.

But hey, keep warm and loose for the second half, enjoy Christmas, then come back fighting in the New Year.

mercuteio

Umkomaas wrote: »

I'd say you're 1-0 up at half-time. Sorry it wasn't concluded. VCS have got away with having adjournments agreed a number of times - almost too often to be a coincidence.

But hey, keep warm and loose for the second half, enjoy Christmas, then come back fighting in the New Year.

I like this a lot - thank-you

Have a good Christmas, and catch you in the New Year.

mercuteio

Hello everyone, and Happy New Year!

I hope you've all had some good rest over Christmas. First thing on my agenda for this year is to put this vexatious case to bed! As a quick reminder, the story is as follows:

1) VCS decided to serve not one, but two court claims on me for using the same car park twice

2) Said car park has signs from three separate parking companies in it, as well as a ticket machine from a hospital (which I was working at and awaiting a staff parking permit). VCS claim that they have permission to manage the car park, and claim that I agreed to a contract with them by parking there, although there is entirely ambiguous signage. The crux of my defence is that no contract can be construed due to the ambiguous signage under the doctrine of contra proferentem

3) I requested on a number of documents for both cases to be consolidated into one hearing, and on the day that the first hearing took place just before Christmas, two things happened:

(i) VCS didn't provide their lawyer with my witness statement and exhibits, thus giving them a way out of the hearing for that day. Initially, the Judge gave their lawyer a copy and assigned an hour for him to get up to speed;

(ii) However, when the hearing started, the Judge agreed that the two cases should be consolidated, and as the lawyer hadn't had a chance to get fully familiar with my documents, decided to vacate the hearing that day and hold a consolidated hearing on the date set for the second hearing (which I'm still awaiting)

So, with that in mind, I'm currently writing my second witness statement.

My question at this point is: am I right to think that, given that the two cases have been consolidated into a single hearing, I should be able to draw on my witness statement and exhibits for the first case to discuss the second case as well? I am trying to avoid essentially re-typing the vast majority of my first witness statement for my second case, seeing as most of the first witness statement/exhibits applies to both cases, and I think copying a lot of it again will not only be a waste of paper and printing costs, but will also distract from the key points that I do want to focus on for the second case (I need to address one or two specific points that VCS have brought up in their second witness statement, and I also want to discuss cost schedules this time)

However, as I don't really know how court procedures work, what I don't want is to find in the hearing that the Judge won't allow me to use my witness statement and exhibits from Case 1 to discuss Case 2, as they are technically separate cases.

I'm right to think that in a consolidated hearing, all evidence and documents from the two separate case files can be used to discuss both Case 1 and Case 2, right?

Thank-you!

p.s. Please tell me if my question doesn't make sense - I've re-written it a few times to ensure it's clear, but I'm not 100% sure if it is, so just let me know if I need to clarify this question.

Coupon-mad

Yes you are right.

Why not just supply a skeleton argument at this stage, put BOTH claim numbers at the top, and say near the start: 'my defence and witness statement already filed & served are repeated and this skeleton argument summarises the issues, the case law and consumer law that I have had to research in order to extract myself from the harassment and misery of two unfounded and exaggerated claims'.

Then adduce anything you want to expand on.

Put in anything omitted last time (have you already got the CRA 2015 and the POFA?) and seize the opportunity to file a new costs schedule with an extra set of court hearing attendance costs added PLUS your actual daily rate of hours spend on this claim, research, two hearings, all of it at your real earnings rate...

...and spell out that:

- a failure to comply with Pre-Action Protocol for Debt Claims - as happened in these claims where no copy of the contract was provided and no attempt was made to narrow the issues or consolidate the claims - could in itself result in indemnity costs being awarded, but the conduct has been far worse and has deviated from normal conduct, as follows:

- sending a legal rep to hearing #1 without giving him the WS & evidence you can PROVE you filed (attach your proof of email/post), after already:

- filing two claims for cases of duplicate facts, which is morally reprehensible and unjustified against a litigant-in-person, and paid no regard to the court rules about proportionality, or to the consumer's interests, rights and remedies and was contrary to the trite law that still holds good in Henderson v Henderson (1843) 3 Hare 100, 67 ER 313, and;

- adding two sets of false costs that cannot be recovered anyway, as VCS know and as has already been tested in their own application made to Caernarfon court and from the outcome at Southampton court in another parking case where £60 had been falsely added and tainted the entire claims, plus;

- failing to comply the the POFA Schedule 4, or the Consumer Rights Act Schedule 2, or their Trade Body Code of Practice in more than one regard...

...is part of a course of conduct that has been wholly unreasonable and vexatious and certainly crosses the bar above which a consumer should be entitled to claim their costs on the indemnity basis as 'punitive costs' in accordance with the CPRs.

Courts have a very wide discretion in relation to costs. In Bolton Metropolitan District Council v Secretary of State for the Environment (Practice Note) [1995] 1 WLR 1176, referred to by Lord Phillips MR in R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, the court said: –

''As in all questions to do with costs, the fundamental rule is that there are no rules. Costs are always in the discretion of the court, and a practice, however widespread and longstanding, must never be allowed to harden into a rule.''

CPR

Costs are governed by CPR 44 and CPR 44.2(1) gives the court a discretion as to whether costs are payable by one party to the other. CPR 44.2(4) and (5) provide, where relevant:-

''(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances including –

the conduct for the parties…
(5) The conduct of the parties includes…whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
the manner in which a party has pursued [...] its case or a particular allegation or issue; and
whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.''

CPR 44.3 deals with the basis of assessment as being either on the standard basis or on the indemnity basis and the default position is the standard basis (CPR 44.3(4)).

CPR 44.3

(1) Where the court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs –

on the standard basis; or
on the indemnity basis,
but the court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount.

(2) Where the amount of costs is to be assessed on the standard basis, the court will –

only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.
(3) Where the amount of costs is to be assessed on the indemnity basis, the court will resolve any doubt which it may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party.”

EFFECT OF INDEMNITY COSTS ORDER

In Siegel v Pummell [2015] EWHC 195 (QB)

the Queen's Bench Division of the High Court said:-

''8. The effect of an order requiring payment of costs on the indemnity basis is to disapply the requirement that, in addition to costs being reasonably incurred, they should also be proportionate to the sums and issues at stake in the litigation and that, in the event of the assessment Judge having a doubt as to whether or not an item of cost has been incurred reasonably, the benefit of such doubt should go to the receiving rather than the paying party.''

In Kellie v Wheatley and Lloyd Architects Ltd [2014] EWHC 2886 (TCC), [2014] All ER (D) 152 AUG, the Technology and Construction Court of the High Court

It was pointed out that, whatever was previously thought, it is now clear that an indemnity costs order is significantly more valuable than a standard order. The Court quoted Lord Woolf in Lownds v Home Office [2002] EWCA Civ 365, [2002] 4 All ER 775, [2002] 1WLR 2450:-

''The fact that when costs are to be assessed on an indemnity basis there is no requirement of proportionality and, in addition, that where there is any doubt, the court will resolve that doubt (as to whether costs were unreasonably incurred or were unreasonable in amount) in favour of the receiving party, means that the indemnity basis of costs is considerably more favourable to the receiving party than the standard basis of costs.''

In Excelsior Commercial and Industrial Holdings Ltd v Salisbury Hammer Aspden & Johnson (a firm) [2002] EWCA Civ 879, the Court of Appeal declined to give circumstances where indemnity costs orders should or should not be made and emphasised the breadth of discretion of the trial judge and simply said ''there must be some conduct or some circumstances which takes the case out of the norm. That is the critical requirement.''


Read this, which is where I got the above from:

https://kerryunderwood.wordpress.com/2015/03/18/indemnity-costs/

I say, seize your chance to go to town on costs and list the unreasonable conduct on a document that will be easy for you to read from at the next hearing. I think you have a chance of higher costs here.

The last person I said that to last month, got £500 awarded for attending ONE hearing.

mercuteio

Coupon-mad wrote: »

Yes you are right.

Why not just supply a skeleton argument at this stage, put BOTH claim numbers at the top, and say near the start: 'my defence and witness statement already filed & served are repeated and this skeleton argument summarises the issues, the case law and consumer law that I have had to research in order to extract myself from the harassment and misery of two unfounded and exaggerated claims'.

Then adduce anything you want to expand on.

Put in anything omitted last time (have you already got the CRA 2015 and the POFA?) and seize the opportunity to file a new costs schedule with an extra set of court hearing attendance costs added PLUS your actual daily rate of hours spend on this claim, research, two hearings, all of it at your real earnings rate...

...and spell out that:

- a failure to comply with Pre-Action Protocol for Debt Claims - as happened in these claims where no copy of the contract was provided and no attempt was made to narrow the issues or consolidate the claims - could in itself result in indemnity costs being awarded, but the conduct has been far worse and has deviated from normal conduct, as follows:

- sending a legal rep to hearing #1 without giving him the WS & evidence you can PROVE you filed (attach your proof of email/post), after already:

- filing two claims for cases of duplicate facts, which is morally reprehensible and unjustified against a litigant-in-person, and paid no regard to the court rules about proportionality, or to the consumer's interests, rights and remedies and was contrary to the trite law that still holds good in Henderson v Henderson (1843) 3 Hare 100, 67 ER 313, and;

- adding two sets of false costs that cannot be recovered anyway, as VCS know and as has already been tested in their own application made to Caernarfon court and from the outcome at Southampton court in another parking case where £60 had been falsely added and tainted the entire claims, plus;

- failing to comply the the POFA Schedule 4, or the Consumer Rights Act Schedule 2, or their Trade Body Code of Practice in more than one regard...

...is part of a course of conduct that has been wholly unreasonable and vexatious and certainly crosses the bar above which a consumer should be entitled to claim their costs on the indemnity basis as 'punitive costs' in accordance with the CPRs.

Courts have a very wide discretion in relation to costs. In Bolton Metropolitan District Council v Secretary of State for the Environment (Practice Note) [1995] 1 WLR 1176, referred to by Lord Phillips MR in R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, the court said: –

''As in all questions to do with costs, the fundamental rule is that there are no rules. Costs are always in the discretion of the court, and a practice, however widespread and longstanding, must never be allowed to harden into a rule.''

CPR

Costs are governed by CPR 44 and CPR 44.2(1) gives the court a discretion as to whether costs are payable by one party to the other. CPR 44.2(4) and (5) provide, where relevant:-

''(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances including –

the conduct for the parties…
(5) The conduct of the parties includes…whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
the manner in which a party has pursued [...] its case or a particular allegation or issue; and
whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.''

CPR 44.3 deals with the basis of assessment as being either on the standard basis or on the indemnity basis and the default position is the standard basis (CPR 44.3(4)).

CPR 44.3

(1) Where the court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs –

on the standard basis; or
on the indemnity basis,
but the court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount.

(2) Where the amount of costs is to be assessed on the standard basis, the court will –

only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.
(3) Where the amount of costs is to be assessed on the indemnity basis, the court will resolve any doubt which it may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party.”

EFFECT OF INDEMNITY COSTS ORDER

In Siegel v Pummell [2015] EWHC 195 (QB)

the Queen's Bench Division of the High Court said:-

''8. The effect of an order requiring payment of costs on the indemnity basis is to disapply the requirement that, in addition to costs being reasonably incurred, they should also be proportionate to the sums and issues at stake in the litigation and that, in the event of the assessment Judge having a doubt as to whether or not an item of cost has been incurred reasonably, the benefit of such doubt should go to the receiving rather than the paying party.''

In Kellie v Wheatley and Lloyd Architects Ltd [2014] EWHC 2886 (TCC), [2014] All ER (D) 152 AUG, the Technology and Construction Court of the High Court

It was pointed out that, whatever was previously thought, it is now clear that an indemnity costs order is significantly more valuable than a standard order. The Court quoted Lord Woolf in Lownds v Home Office [2002] EWCA Civ 365, [2002] 4 All ER 775, [2002] 1WLR 2450:-

''The fact that when costs are to be assessed on an indemnity basis there is no requirement of proportionality and, in addition, that where there is any doubt, the court will resolve that doubt (as to whether costs were unreasonably incurred or were unreasonable in amount) in favour of the receiving party, means that the indemnity basis of costs is considerably more favourable to the receiving party than the standard basis of costs.''

In Excelsior Commercial and Industrial Holdings Ltd v Salisbury Hammer Aspden & Johnson (a firm) [2002] EWCA Civ 879, the Court of Appeal declined to give circumstances where indemnity costs orders should or should not be made and emphasised the breadth of discretion of the trial judge and simply said ''there must be some conduct or some circumstances which takes the case out of the norm. That is the critical requirement.''


Read this, which is where I got the above from:

https://kerryunderwood.wordpress.com/2015/03/18/indemnity-costs/

I say, seize your chance to go to town on costs and list the unreasonable conduct on a document that will be easy for you to read from at the next hearing. I think you have a chance of higher costs here.

The last person I said that to last month, got £500 awarded for attending ONE hearing.

Woah! Heavy-weight response, CM!

Man, this throws my whole plan under the bus. So, let me get this straight, you mean put down in my costs schedule my actual amount of hours working on this . . . and . . . at my doctoring rate? Not Litigant in Person rate?

I mean . . . wow. I thought I may be pushing my luck to put down 8 hours at £19/hr Litigant in Person rate + two days loss of earnings at £95 each, but goodness only knows how many hours I've actually put in here. And if it's at my actual work rate, rather than the Litigant in Person rate, then that's probably going to be quite a high figure.

Have I understood that correctly, CM? You definitely mean put the actual amount of hours I've put in as research, and at the actual rate I normally get paid? I suspect that could come to well over £1000.

I was under the impression that judges aren't keen on awarding costs in the small claims track at the best of times, so is it not possible this may anger them and make them more likely to rule against me? Or am I just being lily-livered?!

Coupon-mad

Hmmm...I am in a mood where I fancy trying to get much higher punitive costs for a Defendant, and have just read back over your whole thread and I still reckon your case is a good one to try.

Your defence and WS and evidence already filed/served are great, and I don't think you need to add anything to them except the final judgment from DJ Grand (which actually says very little which is why I've not rushed to add it to CEC16's thread yet!).

Even this is disingenuous conduct:

I suspect that the reason they offered to settle initially was after noticing that one of my exhibits was in fact one of their own photographs from their exhibit pack, which actually demonstrates the exact problem of conflicting signs within the same car park . . . that photo sort of did part of my job for me! The rest of their witness statement for the second case, which turned up a couple of days ago, looks pretty similar to the first case on casual skimming, but I noted that this photo seems to have mysteriously disappeared in their exhibits, so they must have noticed.

Send me a pm if you like, and we can talk about this by email - I do this free but small sums are sometimes donated by people to a cancer or other health-related charity, if they are that way inclined. Entirely up to you. And also it's a good thing to do afterwards to get the court transcript out of your costs if you win (if costs paid out to you are quite high, that is, as transcripts are a bit expensive).

I was thinking of how to write a skeleton argument that summarises the legal issues. I'd like to help with that, and assume the hearing isn't for some time so we have a few weeks to work on it, given there is no deadline for a skelly or a costs schedule as long as they provide reasonable notice for the other side.

Plus I want to discuss with you, a revised costs schedule arguing that to drag someone to court, not once but twice, a Defendant who they knew before they even started the claim was an emergency Doctor on call at the hospital, is 'morally reprehensible' in itself.

Then we can list all the other unreasonable conduct I touched on above and you can use it as a crib sheet to try to reach that high bar of showing the C has acted so unreasonably that costs should reflect the real cost to a Doctor of their conduct at a hospital where even their own evidence (which in the second claim they have actively tried to hide, by removing a photo) shows the signage is deliberately or negligently confusing and certainly not in keeping with the NHS Car Parking Principles.

The 2 bits of info I am missing here are, what did the Hospital or PALS say in response to your complaint, and who are VCS saying is the company who contracted them and are they arguing that these specific car park bays are somehow like a little shark infested island group (Bermuda triangle stylee) and not part of the Hospital?!

Don't answer here!

If you are happy to try to advance this and discuss trying to get you more recompense than the (relatively) paltry sum so far put in as your costs, send me a pm and I'd like to see their WS and evidence and/or the SAR if they sent them electronically.

I'd also like to see the aerial views you prepared to understand the set up.

mercuteio

Coupon-mad wrote: »

Send me a pm if you like, and we can talk about this by email - I do this free but small sums are sometimes donated by people to a cancer or other health-related charity, if they are that way inclined. Entirely up to you. And also it's a good thing to do afterwards to get the court transcript out of your costs if you win (if costs paid out to you are quite high, that is, as transcripts are a bit expensive).

Hi CM,

Firstly, thank-you so much for these incredibly helpful responses. I've briefly skimmed them, but I need to read them properly and mull over them a bit. Thank-you also for this kind offer of helping me - I've sent you a PM, but am not totally sure if it's sent, seeing as I can't see it in my sent messages. If not, perhaps you can send me a PM that I can respond to?

I've had a few difficulties with this forum since the time of my first Witness Statement, as my IP address was banned, and still hasn't been re-instated despite quite a few messages to the administrator (I access this forum by switching off my wifi and tethering to my phone's 4G instead, so that I can use a different IP address when I come on here!). I don't see any reason why this should have any impact on my ability to send private messages, particularly when I'm using my phone, but if you haven't received it then just let me know.

Also, more than happy to contribute to charity if I win! Had been thinking about it myself too

mercuteio

Coupon-mad wrote: »

Yes you are right.

Why not just supply a skeleton argument at this stage, put BOTH claim numbers at the top, and say near the start: 'my defence and witness statement already filed & served are repeated and this skeleton argument summarises the issues, the case law and consumer law that I have had to research in order to extract myself from the harassment and misery of two unfounded and exaggerated claims'.

Then adduce anything you want to expand on.

Put in anything omitted last time (have you already got the CRA 2015 and the POFA?) and seize the opportunity to file a new costs schedule with an extra set of court hearing attendance costs added PLUS your actual daily rate of hours spend on this claim, research, two hearings, all of it at your real earnings rate...

...and spell out that:

- a failure to comply with Pre-Action Protocol for Debt Claims - as happened in these claims where no copy of the contract was provided and no attempt was made to narrow the issues or consolidate the claims - could in itself result in indemnity costs being awarded, but the conduct has been far worse and has deviated from normal conduct, as follows:

- sending a legal rep to hearing #1 without giving him the WS & evidence you can PROVE you filed (attach your proof of email/post), after already:

- filing two claims for cases of duplicate facts, which is morally reprehensible and unjustified against a litigant-in-person, and paid no regard to the court rules about proportionality, or to the consumer's interests, rights and remedies and was contrary to the trite law that still holds good in Henderson v Henderson (1843) 3 Hare 100, 67 ER 313, and;

- adding two sets of false costs that cannot be recovered anyway, as VCS know and as has already been tested in their own application made to Caernarfon court and from the outcome at Southampton court in another parking case where £60 had been falsely added and tainted the entire claims, plus;

- failing to comply the the POFA Schedule 4, or the Consumer Rights Act Schedule 2, or their Trade Body Code of Practice in more than one regard...

...is part of a course of conduct that has been wholly unreasonable and vexatious and certainly crosses the bar above which a consumer should be entitled to claim their costs on the indemnity basis as 'punitive costs' in accordance with the CPRs.

Courts have a very wide discretion in relation to costs. In Bolton Metropolitan District Council v Secretary of State for the Environment (Practice Note) [1995] 1 WLR 1176, referred to by Lord Phillips MR in R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, the court said: –

''As in all questions to do with costs, the fundamental rule is that there are no rules. Costs are always in the discretion of the court, and a practice, however widespread and longstanding, must never be allowed to harden into a rule.''

CPR

Costs are governed by CPR 44 and CPR 44.2(1) gives the court a discretion as to whether costs are payable by one party to the other. CPR 44.2(4) and (5) provide, where relevant:-

''(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances including –

the conduct for the parties…
(5) The conduct of the parties includes…whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
the manner in which a party has pursued [...] its case or a particular allegation or issue; and
whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.''

CPR 44.3 deals with the basis of assessment as being either on the standard basis or on the indemnity basis and the default position is the standard basis (CPR 44.3(4)).

CPR 44.3

(1) Where the court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs –

on the standard basis; or
on the indemnity basis,
but the court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount.

(2) Where the amount of costs is to be assessed on the standard basis, the court will –

only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.
(3) Where the amount of costs is to be assessed on the indemnity basis, the court will resolve any doubt which it may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party.”

EFFECT OF INDEMNITY COSTS ORDER

In Siegel v Pummell [2015] EWHC 195 (QB)

the Queen's Bench Division of the High Court said:-

''8. The effect of an order requiring payment of costs on the indemnity basis is to disapply the requirement that, in addition to costs being reasonably incurred, they should also be proportionate to the sums and issues at stake in the litigation and that, in the event of the assessment Judge having a doubt as to whether or not an item of cost has been incurred reasonably, the benefit of such doubt should go to the receiving rather than the paying party.''

In Kellie v Wheatley and Lloyd Architects Ltd [2014] EWHC 2886 (TCC), [2014] All ER (D) 152 AUG, the Technology and Construction Court of the High Court

It was pointed out that, whatever was previously thought, it is now clear that an indemnity costs order is significantly more valuable than a standard order. The Court quoted Lord Woolf in Lownds v Home Office [2002] EWCA Civ 365, [2002] 4 All ER 775, [2002] 1WLR 2450:-

''The fact that when costs are to be assessed on an indemnity basis there is no requirement of proportionality and, in addition, that where there is any doubt, the court will resolve that doubt (as to whether costs were unreasonably incurred or were unreasonable in amount) in favour of the receiving party, means that the indemnity basis of costs is considerably more favourable to the receiving party than the standard basis of costs.''

In Excelsior Commercial and Industrial Holdings Ltd v Salisbury Hammer Aspden & Johnson (a firm) [2002] EWCA Civ 879, the Court of Appeal declined to give circumstances where indemnity costs orders should or should not be made and emphasised the breadth of discretion of the trial judge and simply said ''there must be some conduct or some circumstances which takes the case out of the norm. That is the critical requirement.''


Read this, which is where I got the above from:

https://kerryunderwood.wordpress.com/2015/03/18/indemnity-costs/

I say, seize your chance to go to town on costs and list the unreasonable conduct on a document that will be easy for you to read from at the next hearing. I think you have a chance of higher costs here.

The last person I said that to last month, got £500 awarded for attending ONE hearing.

Coupon-mad wrote: »

Hmmm...I am in a mood where I fancy trying to get much higher punitive costs for a Defendant, and have just read back over your whole thread and I still reckon your case is a good one to try.

Your defence and WS and evidence already filed/served are great, and I don't think you need to add anything to them except the final judgment from DJ Grand (which actually says very little which is why I've not rushed to add it to CEC16's thread yet!).

Even this is disingenuous conduct:


Send me a pm if you like, and we can talk about this by email - I do this free but small sums are sometimes donated by people to a cancer or other health-related charity, if they are that way inclined. Entirely up to you. And also it's a good thing to do afterwards to get the court transcript out of your costs if you win (if costs paid out to you are quite high, that is, as transcripts are a bit expensive).

I was thinking of how to write a skeleton argument that summarises the legal issues. I'd like to help with that, and assume the hearing isn't for some time so we have a few weeks to work on it, given there is no deadline for a skelly or a costs schedule as long as they provide reasonable notice for the other side.

Plus I want to discuss with you, a revised costs schedule arguing that to drag someone to court, not once but twice, a Defendant who they knew before they even started the claim was an emergency Doctor on call at the hospital, is 'morally reprehensible' in itself.

Then we can list all the other unreasonable conduct I touched on above and you can use it as a crib sheet to try to reach that high bar of showing the C has acted so unreasonably that costs should reflect the real cost to a Doctor of their conduct at a hospital where even their own evidence (which in the second claim they have actively tried to hide, by removing a photo) shows the signage is deliberately or negligently confusing and certainly not in keeping with the NHS Car Parking Principles.

The 2 bits of info I am missing here are, what did the Hospital or PALS say in response to your complaint, and who are VCS saying is the company who contracted them and are they arguing that these specific car park bays are somehow like a little shark infested island group (Bermuda triangle stylee) and not part of the Hospital?!

Don't answer here!

If you are happy to try to advance this and discuss trying to get you more recompense than the (relatively) paltry sum so far put in as your costs, send me a pm and I'd like to see their WS and evidence and/or the SAR if they sent them electronically.

I'd also like to see the aerial views you prepared to understand the set up.

Right, then . . . game on!

CM, I have now read through that Kerry Underwood blog, and in so doing have come to understand the rationale behind your first post (#137) from yesterday much more clearly. Heavy reading, but what a fantastic resource! Prior to reading this I did not know that indemnity costs existed, let alone what they meant practically speaking.

My understanding is that:

a) If the court deems the Claimant to have been unreasonable to a high degree, then they can make an order for indemnity costs to be paid rather than standard costs

b) The fundamental difference between indemnity costs and standard costs is that indemnity costs have a penal element, and are designed to ward off vexatious litigants demonstrating unreasonable behaviour, both in the nature of the claims taken to court in the first place, and the manner in which litigants conduct themselves before and during the judicial process.

c) Practically speaking, this means that standard costs have two requirements, those being that the costs are both reasonably incurred and proportional to the claim. Indemnity costs, by contrast, have no requirement to be proportional to the claim, but instead must simply meet the single requirement of having been reasonably incurred.


Now, this is right up my street. More than anything, the reason I am pursuing this case is because it's simply not right for companies to act in such a bullish way, and specifically to build a core element of their business from an expectation that most people will be fearful of the court system. Furthermore, to send out thousands of court claims per month is such a monumental waste of court resources that it almost takes my breath away - equivalent to patients who attend A&E every day with a minor ailment in the hope that every so often they'll be admitted and get a free meal! (This is a caricature of a real story, which was actually even worse than my one-sentence depiction here!). How are genuine litigants with genuine concerns meant to use the judicial system if it's clogged up with self-serving time-wasters like these?!

So I am very keen to send a clear signal to PPCs that there is a genuine penalty for abusing the system. If a message can be sent through their wallets that there is the potential for a substantial loss for every claim lost then perhaps it may encourage them to be a little more circumspect about when they choose to pursue a case, and the aggressive and bullying manner in which they do so. If they think they have a genuine case, then they deserve their time in court, but the flagrant disregard of their conduct is such an insult both to the judicial system as a whole, and the individuals that these companies trample on, not for justice, but for profit, that I believe it is worth forcing their hand into actually thinking about who they choose to pursue and why.

Whilst winning some money would always be welcome, this is relatively low on my list of priorities here. My main motivations are firstly to ensure that VCS don't win, and secondly to send a message to them that they will feel when they act in such an ill-considered and disdainful way, such that hopefully they consider things more carefully in future. Given these primary motivations, it will make some sense when I say that, if I can recover indemnity costs to a level that will allow this, I will happily pay for the court transcript and provide it to this forum such that others can use it later, and with the remainder will be more than happy to donate at least half of the proceeds to a healthcare-related charity, either of the group's choosing or my choosing (if the forum has no specific preference - my own choice would be something related to mental health, but cancer charities that have been referenced above would also be good).

CM, I do have some concerns pursuing this route. The first, and most pressing of these, is that the Witness Statement deadline is, in effect, tomorrow and I don't know how much of this needs to be submitted as part of the Witness Statement. Thereafter, there are also one or two other concerns that would potentially stop me from pursuing this route. Perhaps PM me and we can continue this discussion in private.

With warmest regards, and sincere thanks.