Questions about Schedule 4 of POFA

bargepole

The hearing fee is still payable, whether it's conducted in person or remotely - it takes up a block of the Judge's time.

The other side may still instruct a solicitor's agent to plead their case at a remote hearing, and he/she will be charging a fee for that. Of course, they can only recover that from the D if they win, and can establish unreasonable behaviour by the D.

ihatetrump

Thanks @bargepole

Unreasonable behaviour!! - hopefully the other way around:

1. Non PoFA NTK (non relevant land in my opinion) I was not the driver.
2. Lease granted by Council to PPC - not executed as a Deed, not witnessed, signed without documented authority by Council, breach of CA 2006.
3. Management Agreement in breach of CA 2006 and incomplete in evidence.
4. Misleading photos in WS from another site.
5. and the list goes on & on.....

ihatetrump

Finally had my hearing and yes it was a Directions Hearing.

Claimant (Napier) represented by BWL appointed their agent to attend. Judge did not have the Claimants' WS to hand but this was irrelevant as it was only a Directions Hearing. Judge was very pleasant and understanding of the fact that I was nervous (who isn't in these circumstances?) and listened but soon became aware that any attempts at mediation were futile as I was not going to settle (save for a pittance) and claimant was not going to budge either. 

Judge has now recommended a 2 hour hearing with a further 30 minutes reading time @ a date yet to be advised. 

ihatetrump

When I posted on 25th October I omitted to mention that the Judge for this Directions Hearing did not have a copy of the Claimants Witness statement (even though I did and so presumably the claimant had filed the same).

I have now received a 'Notice of Allocation to the Small Claims Track Hearing'.

This hearing is to take place on 13th January. However, claimant has been instructed to pay a Court Trial fee of £27 by 16th December or the claim will struck out. I presume that the claimant will pay this fee so that the hearing can proceed - is this normal?

The claimant was instructed to refile it's witness statement within 7 days - which I presume was within 7 days of the date of the Notice (11/11/21) - again, I presume they complied, but how can I find out?

This notice also states: 'The Parties must ensure that at the final hearing the court and every other party and any witness have access to a paginated bundle of documents they wish to rely on'. Although I have already submitted my WS, does his now afford me the opportunity to amend my WS?

Here's the reason for asking:

Included within the Claimants WS were two documents (a 'lease' and a 'management agreement') which purport to give landowner authority (the landowner is Milton Keynes Council, through it's proxy Milton Keynes Development Partnership LLP).

Having carefully examined both of these documents I note that the lease (dated November 4, 2015) refers to the term as per the following:

 
Clause 2.4 referred to is:


Finally here's what the 'Management Agreement' says about the term:




Maybe I am being pedantic here, but I see nothing in the 'lease' that permits the term to extend beyond 14th May 2016  - and if I am correct, the lease term could not extend beyond this date. The Management Agreement therefore under clause 4. c would also terminate on 14/05/2016.

The alleged contravention took place in January 2019 - therefore, does this mean I could further my argument that even though I have already claimed it to be non-relevant land (and therfore fails PoFA 2012 for keeper liability), there is no evidence of landowner authority at the date of the alleged contravention?

Jenni_D

No - a paginated bundle (does it say an agreed bundle?) is to be the same copy that all parties will refer to at the hearing. It does NOT allow you to amend your filed/served WS. You may be able to submit a Supplementary WS to expand on your existing WS.

Clause 3 says that the agreement will roll over unless either party terminates it. It does NOT say that the agreement will terminate on 14-May-2016.

ihatetrump

But clause 4  says it will terminate on the earliest of c. the date of termination of the lease.?

And the lease has no provision for an extension beyond 14th May 2016. Therefore surely the lease terminates on 14/5/2016 and with that the Management Agreement terminates also? - basically you can't have a Management Agreement without a lease being in place.

TBH, the whole 'lease' is a fiasco - executed as a deed (by MKDP) but didn't have any witness signatures as required by Law of Property (Miscellaneous Provisions) Act 1989. 

The Management Agreement was signed by a person (for MKDP) who couldn't even get his signature on the right line and although he used the title Chief Exec was never registered as an Officer of the company at Companies House and therefore the agreement fails the strict requirements of Section 43 and Section 44 of the Companies Act 2006.

 

Coupon-mad

I'd add in a brief supplementary WS pointing this out.  Plus update your costs assessment to cover the two hearing costs.  Make site you meet your deadline to file and serve your paginated bundle and in the covering email, draw the Supplementary WS to the court's and claimant's attention.

ihatetrump

When I posted on 25th October I omitted to mention that the Judge for this Directions Hearing did not have a copy of the Claimants Witness statement (even though I did and so presumably the claimant had filed the same).

The claimant was instructed to refile it's witness statement within 7 days - which I presume was within 7 days of the date of the Notice (11/11/21) - again, I presume they complied, but how can I find out?

Before drafting my supplementary WS I decided to do some googling on the author of the claimants' WS - low and behold, according to his Linked in Profile, he left BW Legal back in July - 3 months before the Directions Hearing in October!

So if my hearing goes ahead next month - the claimants' witness will not be available - does this further weaken their case? and if so, how can I exploit it in my supplementary WS?

Jenni_D

The person who writes the C's WS is never present at a hearing - even if they still work for the C.

ihatetrump

OK got it - thanks - I've already criticised their WS via my own WS (inclusion of photos of signage from other sites, photos taken 2 years previously etc etc - and the list goes on) - hopefully BWL will be their usual selves and employ a 'gun for hire' again for the main hearing - I'll make sure the Judge knows the C's witness is no longer employed