Please Help - have to submit a defence asap - very poor signage at non pay and display car park

D_P_Dance

DC, I am well aware of your interpretation of reasonabilty but itr conflicts with several others I have read. I should be interested in your comments on this one.

https://en.wikipedia.org/wiki/Reasonability.

Jenni_D

Reasonability is as defined within the CPRs ... a general definition from Wiki or a dictionary is irrelevant.  

bargepole

My comments on that link are as per the instructions given by the lecturer in week 1 of my LLB Open University course: Do not rely upon anything you read in Wikipedia, that is an unmoderated and unverified source of information, which may be right or wrong.

Here is a commentary on unreasonable conduct costs in small claims cases, from a leading set of chambers: An Acid Test for Unreasonable Acts: Unreasonable Behaviour Costs on the Small Claims Track - Becket Chambers (becket-chambers.co.uk)

D_P_Dance

 a general definition from Wiki or a dictionary is irrelevant. 

Irreleant to whom?    I think that I could put up a good rgument to a judge that they are not.

Jenni_D

As Mr. Pole says above, what Wiki or a dictionary or Sir Deep believe to be the meaning will likely be irrelevant to a judge - they have guidelines to follow - unless you happen to get an amenable judge.

D_P_Dance

David  I have read the link and bring to your attention 

  Quite what such unreasonable behaviour amounts to is not defined by the CPR


 “The acid test is whether the conduct permits of a reasonable explanation…If so, the course adopted may be regarded as optimistic…but it is not unreasonable”.


What amounts to such “unreasonable” behaviour is not specified anywhere in the CPR 


The Court of Appeal noted that cost cases are “highly fact sensitive” and so it is hard to give general guidance. It referred to the case of Ridehalgh v Horsefield [1994] Ch 205 which

the decision does limit still further the potential for litigants to recover the costs of arguing their case.

Nothing in the above defines unreasonable conduct.  In many cases court claims by PPCs are indoubtedly unreasonable, especially when compared to Local Authority fines, and I am struggling to understand why judges do not award these costs more often.

 

D_P_Dance

 they have guidelines to follow 

But a guiline is a guidance, not set in stone 

Le_Kirk

Jenni_D said:

bargepole said:

D_P_Dance said:

IMO, if everyone who won and was not awarded costs for their time complained to their MP and JACO things might improve.  

Unreasonable conduct is surely not diffricult to define,  dropping litter is unreasonable conduct, smoking where you should not is unreasonable conduct.  Let us flood the system with complaints.  

The definition of unreasonable conduct, as intended by CPR 27.14(2)(g) has nothing to do with the substantive facts of the case. The examples that you give are potentially minor criminal offences, not matters within the jurisdiction of the County Court.

Unreasonable conduct in matters of civil proceedings, generally include failing to follow Court directions and deadlines, such as failing to file and serve a witness statement by a given date, or at all.

Yet the PPCs and their legals seem to get almost free-reign to abuse the court process at their whim, and rarely get sanctioned for it. But should a LIP (who is unfamiliar with the process) make a small mistake they get dropped on from on high. It really is time that the courts/judges woke up and smelled the coffee. 🙄

Not just me then, that thinks this and posts about it when it happens.

RapidD

bargepole said:

They rely upon the Judge taking their WS and evidence at face value, but so often, as in this case, the stock images of the signage don't match up with what is actually displayed at the site, and their WS is clearly just a collection of templated paragraphs which aren't all relevant to the particular case.

At the risk of appearing to give them an ounce of credit, I will say that there were a few short paragraphs in their WS that directly addressed what I put in the opening few paragraphs about my defence, that were most definitely detailed to my case. I'm sure 99% of it was from a template with a couple of things added in. In fairness, that's pretty much the same for us defendants too! 

It's interesting to read the differing opinions on 'unreasonable conduct'. Obviously the CPR's are the only opinion that matters. In my case, the judge spent the best part of 10 minutes figuring out if Gladstones' no show was legit. Apparently they'd send an email asking to be excused. The admin person has to forward that email to the judge after the hearing had started and we had to wait for a) the email to be delivered (it was not instantaneous) and b) for the judge to determine if it was a reasonable request under the circumstances, which he didn't share with me. 

In my humble opinion, if a solicitor is representing a claimant they should damn well have a good reason for not attending. Furthermore, when it's been proven that there claims are factually false (their site plan basically claiming some signs present when they aren't) I would also argue that's unreasonable and wasting the courts time. That's frivolous in my opinion. 

Don't get me wrong, if their evidence is accurate and the judge has to rule whether the signs were obvious enough, that's what the process is for. But when they're basically lying and trying it on, surely that's unreasonable?

The judge commented on how he had to rule 'based on the balance of probability'. So does that mean therefore, if I hadn't proved their signs weren't where they said they were (through photographic evidence), would he have ruled in their favour? I think quite possibly as he probably would have took their site plan on face value. 

So yes, the more I think of it, the more I feel I was hard done by, not getting any costs awarded.  

bargepole

On the question of whether they should be excused attendance, CPR 27.9 says that if a party does not wish to attend the hearing, and wishes the Judge to consider their case on paper evidence only, they must notify the Court and the other party at least 7 days before the trial date. It's not clear from the above whether they actually did that.

If you hadn't produced photo evidence to show that their signage wasn't what they said it was, it's likely that the case would have gone in the Claimant's favour, on balance of probabilities.

The fact that they appear to have filed evidence which was provably false, may in the eyes of some Judges, have crossed the threshold of unreasonable behaviour. But this isn't an exact science, and is subject to judicial interpretation. You should, however, at least have got your ordinary costs for attendance, at £95 per day.