Default CCJ - VCS used wrong address even if I emailed them the correct one

Le_Kirk

You right that they should send the Notice of Discontinuance to you AND the court and if they haven't (again) that is one more string to your bow of unreasonable behaviour.  It is a high bar to cross for unreasonableness but if they have discontinued this time, there will not be a hearing unless you ask for a costs hearing.  Keep trying the court for your status.  If they have not filed the Notice with the court and they have not paid the court fee, you will suddenly find that the court have mysteriously discovered they did pay!

bridgefixer

I sent an email to the Court on Monday, asking them kindly confirm:

1) if the Claimant has filed the Notice of Discontinuance also to the Court, 
2) if the Claimant has paid the trial fee of £27.00 by 31 March 2023 as instructed in the Notice of Trial Letter that listed the hearing provisionally on 28 April 2023, and
3) if the trial will proceed as provisionally listed on 28 April 2023?

And they replied that with reference to your email:
1) The Claimant has not filed a Notice of Discontinuance
2) The Claimant does not have to pay a hearing fee as the hearing is going ahead only because the Defendant has so requested it.
3) The hearing currently remains listed on 28 April 2023.

So the show and bundle preparation must go on... 

It seems that they my inquiries about cost hearings have been interpreted as a request. A good strategy in my case would have been wait till the trial fee payment/non-payment, and contact the Court right after the deadline to confirm the payment and status. If they did not pay, the cost would have been ordered, and I could have asked for a cost hearing as/if needed.

In my earlier email to the Court, I should have asked for confirmation of a possible discontinuation, and about costs only after if the discontinuation was confirmed - If I'm interpreting this right.

Coupon-mad

OK so the hearing remains as a costs hearing due to what you must argue is wholly unreasonable conduct by the Claimant.  You've started so you must finish it and that needs another WS in support of your costs.

You can't drop it now, but if they've sent you a NoD and not filed it with the court, that seems unreasonable to me.  Do you have wasted costs?  YOU MUST MAKE WRITTEN SUBMISSIONS.

Have a look at the example in the NEWBIES thread by @bluetoffee1878 (he achieved it) and also this one:

Premier Park Ltd ordered to pay £500 in costs for unreasonable late discontinuance at Southampton County Court (includes all orders and judgment transcript following his application for a costs hearing:  Premier Park v S Jones):
https://forums.moneysavingexpert.com/discussion/6271727/residential-pcn-premier-park-ltd-ordered-to-pay-500-in-costs-at-southampton-county-court

The letter to the Judge asking for costs - like yours and bluetoffee's - was treated as an 'application' by the Court:

https://www.dropbox.com/s/pjuljss3bo0totu/04%20C%20TWIMC%20%2B%20Costs%20Hearing%20Legal%20Arguement.pdf?dl=0

The OP said:

"The 05 Witness Statement is interesting and quotes a post from this forum. The statement by Mr Byers-Nolan was riddled with errors and inconsistencies, ignored the main points of the case and was delivered so late that the Judge ignored it. As he did with my skeleton argument…
 
You might think I would be steaming with anger with PP, BW Legal, DRP, Gladstones, CST Law, Zenith Collections et al, but no. If POPLA are going to boast on their website that they take “into consideration the relevant law, guidance and standards and the BPA Code of Practice.” they should do exactly that. Don’t employ someone with experience of “conflict resolution” and “problem solving” to decide on points of law. How about employing someone with a legal background to decide on legal matters? The new Government CoP will hopefully remove POPLA from the equation.

And finally, for the Premier Park Ltd and BW Legal employees who lurk on this forum: we still have a BIG problem with the other 24 PCNs you plastered my vehicles with, don’t we?"

bridgefixer

Thank you @Coupon-mad! These are really useful. 

Yes, I'm writing down the whole story in the witness statement, with dates, events, and evidence to make a case for unreasonable behaviour throughout the process - from the lack of signage, negligence with the address I had provided and getting a judgment in default, not helping to sort it out even if it was clearly their mistake, misleading and irregular filings leading up to the set-aside hearing, arguing for the claim to be kept alive only to serve a notice of discontinuance after my defence and sending a few letters offering/threatening to settle, and failing to file discontinuance to the court twice. Sounds somewhat unreasonable to me. Even if they could argue that some single point is reasonable, put together they reveal a pattern of behaviour that is wholly unreasonable. 

The whole process has been a massive waste of effort and cost (albeit I've learnt a lot), and I've listed time and costs throughout the process, although I cannot possibly include all hours as that would make the claimed sum far too high even at £19/hour. I'll detail them in the schedule of cost, by phase like you advised me when I was preparing the set-aside hearing bundle. 

I'm asking the Court to consider the costs based on:
CPR 27.14 for any normal costs, application fees, material costs, and two times 1/2 day for hearing. 
CPR 27.14(2)(g) "such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably", related to the litigant in person costs
CPR 44.11(1), "(a) a party or that party’s legal representative, in connection with a summary or detailed assessment, fails to comply with a rule, practice direction or court order; or (b) it appears to the court that the conduct of a party or that party’s legal representative, before or during the proceedings or in the assessment proceedings, was unreasonable or improper," related to the Solicitor's filing irregularities. 
CPR 46.5, for litigant in person costs, i.e. hours of effort at £19/hour. 

It's not entirely clear to me if 44.3 (indemnity vs. standard costs) applies to the small claims track and my case, and should I refer to this at all, if the test of reasonability resides solely in CPR 27.14.

For CPR 27.14(2)(g), I plan to use a following this to show a test unreasonable behaviour as suggested by @Galloglass earlier.

"Unreasonable" also means what it has been understood to mean in this context for at least half a century. The expression aptly describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case, and it makes no difference that the conduct is the product of excessive zeal and not improper motive.

But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting on a practitioner's judgment, but it is not unreasonable."

Ridehalgh v Horsefield & Anor [1994] EWCA Civ 40

Is there anything else I should or could consider. Or am I complicating this too much? 

Coupon-mad

No, you are nailing it!  Love it.

bridgefixer

A little update. 

Yesterday I filed and served my trial bundle (all 103 pages) and authorities by email to the Court and VCS.

Today VCS responded they do not accept service by email (even if they served an amended Claim form by email). So I responded them reminding f the precedent that they served an amended claim form to me by email, and then I said I would arrange a hard copy as well for their convenience. It costs little money, but such is life.

Then, right after requesting hard copies, they filed the Notice of Discontinuance to the Court by email. Interestingly, this new Notice of Discontinuance was dated 13 April 2023 (today), whereas the Notice they sent to me earlier was dated 14 February 2023. So they made a new document to be filed to the Court, and did not use the same one they submitted to me earlier. What could be their reason for this? 

So, the Claim is now officially discontinued by them. I, however, presume the hearing may go ahead the court earlier said the "The Claimant does not have to pay a hearing fee as the hearing is going ahead only because the Defendant has so requested it.", but I need to check this with the Court now, and see if I need to make a separate requests for a cost hearing.

Interesting times. 

bridgefixer

To continue to the previous post, I had a hard copy printed and delivered, and the driver confirmed the documents have been delivered to VCS, and I have an invoice and email for that. 

So, they should have now all documents as a hard and an electronic copy by the deadline to serve the documents.

Coupon-mad

I think you do need to ring the court and remind them what they told you earlier, that this is continuing as a costs hearing.  You should also check that your emailed bundle is OK and not too large (do they also want a hard copy)?  

Over 100 pages is often too big and courts refuse to print it...

And I think the phone call is needed JUST IN CASE a different clerk at the court has seen that NoD and knee-jerk vacated the hearing...

B789

Great news that your robust defence and WS has sent this scammer off with their tail between their legs. However, you may need to be aware for future reference what the MoJ says about serving documents to court by email, especially about the number of pages and file size:

Please consider this list carefully before continuing with your email correspondence with the court. Any document filed by email which is excluded by this list will treated as having not been filed.

• A request to issue a specified or unspecified claim as these claims are excluded from application by email

• When printed out, the email and any attachments, including any document embedded in another, together with sufficient copies for service on the required parties, the process or accompanying attachments do not exceed 50 pages (excluding Local Authorities, Cafcass and Cafcass CYMRU).

• A page is one side, therefore 50 pages equals 25 pieces of paper printed on both sides

• The total size of an email, including any attachments, must not exceed 25 megabytes.

• A party must not use more than one email to take any step in a claim which requires a document or documents to be filed.

Full guidance here: https://www.justice.gov.uk/courts/email-guidance%23canfile

bridgefixer

Yes, I'll print out and deliver a hard copy to the court, and I'll also be in contact with the Court.

My local court requires a hard copy to be filed for in-person hearings latest at least three clear days before the hearing, but I'll deliver it much earlier to make sure they've got all the papers.