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

bridgefixer

After all filing and serving of digital and hard copies, the hearing has now been vacated.

I received the Order below from the Court for my earlier inquiries, and now that the Claim is formally discontinued, the listed hearing has been vacated as per the 1st point. However, when I asked if the Claimant had paid the trial fees, the court said the hearing would proceed as I had requested it (they had not formally discontinued at that point). So it seems the below Order overrides that one. 

1. The hearing listed for 28 April 2023 do proceed until such time as the Claim is formally discontinued
2. In the event that the hearing proceeds, the matter of costs and conduct pursuant to CPR 27.14 be considered by the trial Judge.
3. If it does not proceed, no costs orders have been made and the parties are pointed to the provisions of CPR 27.14.

I emailed the Court to ask if they could arrange a separate hearing for the costs or order the costs based on the documents I filed for the hearing, given that the costs are yet to be ordered. Let's see what follows.

Also, turns out that SRA does not regulate ELMS Legal. SRA advised to report them to CILEx Regulation, which I did. However, I have no idea why they are not regulated as solicitors if they call themselves "Solicitor for the Claimant."

https://cilexregulation.org.uk

Fruitcake

Elms, the company, are not regulated by the SRA, but they do have individual solicitors who are. This means you can only complain about a specific solicitor to the SRA, if they are a member, and not about the company.

However as you have discovered, Elms are CiLEx registered so you can complain to them about the company.

Umkomaas

Fruitcake said:

Elms, the company, are not regulated by the SRA, but they do have individual solicitors who are. This means you can only complain about a specific solicitor to the SRA, if they are a member, and not about the company.

However as you have discovered, Elms are CiLEx registered so you can complain to them about the company.

I believe Elms have just one solicitor - Ed.

This is he:
https://find-and-update.company-information.service.gov.uk/company/09160334/officers

Coupon-mad

You will need a hearing about costs and it is surely wholly unfair conduct (meeting the high bar in Dammerman) if a Claimant can get away with:

- improper service of a claim, sent knowingly to a wrong address, when the Defendant had already emailed their correct address, which the Claimant held

- inflating the claim with costs not incurred and obtaining a CCJ for that enhanced sum

- refusing to consent to set aside the CCJ despite knowing the claim was improperly served, this causing the Defendant to have no option but to spend £275 on a set aside fee

- then sending a discontinuance to the Defendant but failing to file it in a timely manner with the court

- and finally sending a very late (and freshly dated) notice of discontinuance to the court, in the apparent hope of avoiding a costs order based on the indemnity basis due to their wholly unreasonable conduct.

Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not normally apply to claims allocated to the small claims track (r.38.6(3)).

However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."   

bridgefixer

Thank you @Fruitcake and @Umkomaas for explaining the difference between solicitors and solicitors. The regulatory divide between individuals and companies is clear, and as I didn't exchange emails with Ed, the complaint was out of SRA's remit. 

@Coupon-mad - I emailed the court regarding CPR r.38.6 and White book annotations and the hearing. I laid out the unreasonable behaviour and wasted cots in my previous email, stating that chronologically ordered events, evidence and costs are detailed in the trial bundle. Along with the parts that cover inflated costs. 

Below are some paragraphs of my filed witness statement. 108-110 restate much of what's been said in previous paragraphs, and 111-115 outline my legal argument. I hope they are approximately right as I didn't have time to iterate them much. Also, when I have time, I will redact parts of my witness statement and share it with you. 

---- 

The Defendant’s disproportionate burden to resolve this matter.

108. Throughout the process, I have spent a significant amount of time and resources, and paid court fees to try to resolve this matter. As a litigant in person, I have had to learn relevant law from the ground up and spent a considerable time researching the law online, trying to reach the Claimant, processing and preparing an application package, set aside hearing materials, my Defence, this witness statement, supporting evidence, and trial bundle, among other things. This has led to a significant accumulation of wasted efforts. A conservative and reasonable account of the litigant in person time, costs, and court fees I have incurred are detailed in the Schedule of Costs.

109. At the same time, the Claimant has engaged in wholly unreasonable behaviour and vexatious litigation, if not outright misconduct. The catalogue of errors begins from the absence of signage, terms, conditions, and any contractual basis – and continues with the failure to use my current address they acknowledged having had all along, obtaining a Judgment in Default using a wrong address acquired in a way that did not adhere to regulation, the lack of interest to provide any relevant details or help appeal the wrongly entered Judgment even if it was clearly a result of their mistake, their Solicitor’s misleading ‘consent order’ and irregular filings before the set aside hearing, requesting the Claim to be kept alive in the set aside hearing only to serve a Notice of Discontinuance after receiving my Defence and sending a few letters offering and threatening to settle for a hefty sum, and failing to file the Notice of Discontinuance to the Court, not once but twice. This has caused significant stress.

110. Even if the Claimant would argue that some single point listed above is a genuine error or otherwise reasonable, put together, they reveal a pattern of behaviour that is wholly unreasonable which is based on unfounded allegations and Particulars of Claim.

Due to the Claimant’s unreasonable behaviour, I seek my costs on an indemnity basis.

111. I seek my costs on an indemnity basis following the Claimant’s wholly unreasonable behaviour throughout the process, pursuant to CPR 27.14(2)(g), as detailed in the Schedule of Costs. At the very least, I seek the court fees (N244 application fee of £275) and standard witness expenses for attending a hearing (2*1/2 day), pursuant to CPR 27.14 and Practice Directive 27A.

When considering the Claimant’s behaviour, I would like to draw the Court’s attention to Ridehalgh v Horsefield & Anor [1994] EWCA Civ 40: https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/1994/40.htm. The authority articulates the definitions of unreasonable or improper behaviour as follows:

a) "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.

b) "Improper" means what it has been understood to mean in this context for at least half a century. The adjective covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty. It covers any significant breach of a substantial duty imposed by a relevant code of professional conduct. But it is not in our judgment limited to that. Conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion can be fairly stigmatised as such whether or not it violates the letter of a professional code.

112. If the Court finds the Claimant’s behaviour unreasonable, considering Ridehalgh v Horsefield & Anor [1994] EWCA Civ 40 cited above and pursuant to CPR 27.14(2)(g), the Court can order "such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably." In this case, I seek my litigant in person costs as detailed in the Schedule of Costs, pursuant to CPR 46.5, and on an indemnity basis, pursuant to CPR 44.3.

113. CPR 44.4(3) states that when deciding the amount of costs, the court will also have regard to “(a) the conduct of all the parties, including in particular (i) conduct before, as well as during, the proceedings; and (ii) the efforts made, if any, before and during the proceedings in order to try to resolve the dispute”, and “(c) the importance of the matter to all the parties.” In this case, the Claimant’s conduct before and during the proceedings has been unreasonable. Unlike the Particulars of Claim state, clearly visible signs, terms, and conditions were absent, and the Claimant failed to use my current address in any correspondence to address this matter. This led to the Judgment entered in Default, which this Defendant considers a highly important matter. Yet, the Claimant did not offer any help to resolve it, even if it was a direct consequence of their negligence with addresses. To make the matters worse, the Claimant served an amended claim form after the set aside hearing, only to serve their Notice of Discontinuance to the Defendant soon after but failing to file it to the Court, twice.

114. Following CPR 44.11, the Court can also consider and order costs in relation to misconduct where "(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." Although the bar for misconduct is high, I ask the Court to consider if the Solicitors for the Claimant and the filing of a misleading ‘consent order’ to the Court whilst not filing my documents can be construed as a failure to comply or if they behaviour has been unreasonable or improper, considering the definitions articulated in Ridehalgh v Horsefield & Anor [1994] EWCA Civ 40 cited above.

115. Finally, considering the Claimant has served their Notice of Discontinuance to the Defendant but not filed it to the Court, attention is drawn specifically to the (often-seen from this industry) possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not normally apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."

B789

Your link here...

When considering the Claimant’s behaviour, I would like to draw the Court’s attention to Ridehalgh v Horsefield & Anor [1994] EWCA Civ 40: https://www.bailii.org/cgi- bin/format.cgi?doc=/ew/cases/EWCA/Civ/1994/40.htm. The authority articulates the definitions of unreasonable or improper behaviour as follows:

does not work, either with the erroneous space between "cgi- bin" or corrected without it.

This link seems to work: https://www.bailii.org/ew/cases/EWCA/Civ/1994/40.html

Or a prinatable version: https://www.bailii.org/ew/cases/EWCA/Civ/1994/40.pdf

bridgefixer

B789 said:

Your link here...

When considering the Claimant’s behaviour, I would like to draw the Court’s attention to Ridehalgh v Horsefield & Anor [1994] EWCA Civ 40: https://www.bailii.org/cgi- bin/format.cgi?doc=/ew/cases/EWCA/Civ/1994/40.htm. The authority articulates the definitions of unreasonable or improper behaviour as follows:

does not work, either with the erroneous space between "cgi- bin" or corrected without it.

This link seems to work: https://www.bailii.org/ew/cases/EWCA/Civ/1994/40.html

Or a prinatable version: https://www.bailii.org/ew/cases/EWCA/Civ/1994/40.pdf

I removed the erroneous space to fix the link. Should work now, and it's correct in the filed document. 

Thank you for spotting the error and sharing the direct links. Should have used those. 

bridgefixer

Now I have a reply from the Court, saying that "in order to get a costs hearing listed you are required to file a N244 application and pay a £275 application fee. Details are available online. We look forward to hearing from you." 

So more money and more filings, and who knows what starting that process would bring with it. 

Will call them tomorrow to get a better understanding of the process, and if there any alternative options. I understand courts cannot give advice on legal matters, but they are not very forthcoming with any process related information either even if they are the managers of the process.

From a cost perspective, paying £275 for an application would probably result at least in na order that makes the Claimant pay £275 and some costs back for the set-aside. So in that sense it would be not be much of loss or profit. If I would get my litigant in person costs, then it would be beneficial, and if a judge wouldn't buy my argument of unreasonable behaviour, I'm not sure if I'd have to pay some of the Claimant's costs, as I assume they'd file their documents and send someone to argue that they've been behaving well.

Coupon-mad

£275 is utterly ridiculous bearing in mind the hearing fee is £35, had the Claimant paid it.

Ask them why you cannot merely pay the hearing fee as you would have done had there been a discontinuance by a claimant, where a counterclaim was in play.  The Defendant/counterclaimant simply pays the hearing fee in that situation, to stop it being vacated.

What exactly is the difference?

Further, it would be cheaper for you to file a claim for your wasted costs because that would be a filing fee of £25 or £35 plus a hearing fee!  Well under £75 and would expend FAR more court time if you started from scratch.

When you got the CCJ set aside what did that Order (after that hearing) say about your £275 costs for that set aside?

Johnersh

Failing that you could, in theory, issue a new £35 claim for pecuniary loss arising from the defence unmeritorious pursuit of a claim which was withdrawn...