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

bridgefixer

Just called the Court, or a combined service centre where all calls are handled (after holding them first on the line).

I explained the situation, asked about the process, and if I could possibly talk with someone who's actually dealing with my case. The person on the phone was nice, but she said it's not per their process for me to talk to a person who actually handles the case, and advised to file N244 and pay to 'reinstate' the case, and that she could not comment on the fees and practices of other courts that are not serviced by this service centre. 

The CJJ set aside Order said nothing about the costs – only some further filing directions.

1. The judgment against My Name be and is hereby set aside.
2. The Claimant is to file and serve an amended claim form with the Defendants correct title, and to serve this on the Defendants current address within 14 days.
3. The Defendant is to file and serve a defence to the claim within 14 days thereafter
4. The claim is adjourned to the first open date after 28 days with a time estimate of 90 minutes, parties to attend The matter is to be allocated to the Small Claims Track upon filing of the Defendant's defence
5. The Court is to send out standard Small Claims Track directions in due course

The Order I received when I asked after receiving a first discontinuation states as follows:

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.
4. Parties are reminded to include opposing parties in their correspondence with het Court, and if a party seeks an Order be set aside or varied, it must do so by form N244 and pay the proper fee.

So, it seems, the court thinks the order needs to be varied as per the fourth point to be able to exercise the third point where they kindly point to CPR 27.14 provisions. 

Is it only me who thinks all this is rather confusing?

Coupon-mad

I would see if the hearing is vacated first, and if it's not vacated, turn up and ask to see the judge for ten minutes about costs.

Otherwise I think filing a claim for a £35 fee (then a hearing fee) is best because none of those orders dealt with costs, so they are still owed.  Tick yes to mediation when you are the Claimant!

bridgefixer

Yep, let's see what happens with the hearing, and the person on the phone said there's no deadline as such regarding N244, and I presume the same applies to the claim (and I may need to write a letter before claim before that).

bridgefixer

I contacted the court a day before the hearing, and it turns out it was vacated. So the cost order remains an open matter. 

I'm now looking into the ways to get the cost ordered, and it seems there are two options within the scope of the discontinued claim, but I'm not entirely sure if I am reading my options right. Any help would be received with great appreciation, especially with the second option as the deadline is fast approaching, so I'm looping @Coupon-mad, @Le_Kirk, @Johnersh in.

Option 1: CPR 44.10, Where the court makes no order for costs, says:

(1) Where the court makes an order which does not mention costs –

.....

(2) Where the court makes –

(a) an order granting permission to appeal;

......

(3) Any party affected by a deemed order for costs under paragraph (2) may apply at any time to vary the order.

(4) The court hearing an appeal may, unless it dismisses the appeal, make orders about the costs of the proceedings giving rise to the appeal as well as the costs of the appeal.

The latest court order says that:

3. If it does not proceed, no costs orders have been made and the parties are pointed to the provisions of CPR 27.14.
4. Parties are reminded to include opposing parties in their correspondence with het Court, and if a party seeks an Order be set aside or varied, it must do so by form N244 and pay the proper fee.

Could the courts order "...if a party seeks an Order be set aside or varied, it must do so by form N244 and pay the proper fee." be interpreted as "(2)(a) an order granting permission to appeal"?

Am I reading this right, or I am totally misguided here? Also, in this option it seems there's no deadline as such. 


Option 2: CPR 38.4, Right to apply to have notice of discontinuance set aside, says:

(1) Where the claimant discontinues under rule 38.2(1) the defendant may apply to have the notice of discontinuance set aside(GL).

(2) The defendant may not make an application under this rule more than 28 days after the date when the notice of discontinuance was served on them.

In this option, the deadline is fast approaching, contradicting the service centre's response comments of no deadline as such. 

(Also, for the deadline, I assumes the time would be counted from the date when they served the freshly dated discontinuance to the court, and not from they served the first notice of discontinuance but did not file it to the court.)

For both, I'd need to file and serve a notice of application, draft order, and witness statement, unless I use the one I prepared for the vacated hearing. But I have a feeling the case and legal argumentation for unreasonable behaviour could be improved. Also, my witness statement bundles at the moment evidence and legal argument, and I guess those should be separated and the legal bits moved to a skeleton argument.

Coupon-mad

Could the courts order "...if a party seeks an Order be set aside or varied, it must do so by form N244 and pay the proper fee." be interpreted as "(2)(a) an order granting permission to appeal"? 

No, it's not.

N244 = an application. Not an appeal.

bridgefixer

Coupon-mad said:

Could the courts order "...if a party seeks an Order be set aside or varied, it must do so by form N244 and pay the proper fee." be interpreted as "(2)(a) an order granting permission to appeal"? 

No, it's not.

N244 = an application. Not an appeal.

Thank you for clarifying this.

So, it seems I'm left to apply for the set aside of the notice of discontinuance in that case, or to make an application to vary an order as the court advices. Or alternative I need to file a fresh claim. 

Coupon-mad

None of those seem right, except ... if costs were not mentioned at all in the first order then you might have to make a claim for them, yes.

If costs were 'reserved' from an earlier hearing, you can just email for the attention of the Judge and point it out.  As shown in the costs example by @bluetoffee1878 that I already provide as a link in the NEWBIES thread.

If the first hearing Order said "no order as to costs" then there are no costs you can pursue.

bridgefixer

Indeed options are a bit odd - the costs were not reserved or mentioned in the CCJ set-aside order. My inquiries about a cost order in the hearing or about their reservation right after the CCJ set-aside hearing did not produce any results, and when I contacted the court regarding the costs after the claimant served the notice of discontinuance (which they did not file with the court at the time), I received the following order from the court.

3. If it [the hearing] does not proceed [following a formal discontinuance], no costs orders have been made and the parties are pointed to the provisions of CPR 27.14.

4. Parties are reminded to include opposing parties in their correspondence with the Court, and if a party seeks an Order be set aside or varied, it must do so by form N244 and pay the proper fee.

So, I've been considering options, and these are the ones I'm aware of at the moment. 

1. CPR 38.4, Right to apply to have notice of discontinuance set aside.

According to the green book, "The purpose of this Rule is to forestall abuse of the discontinuance procedure bearing in mind that permission is not usually required to effect discontinuance", and "The defendant may not make an application under this rule more than 28 days after the date when the notice of discontinuance was served on them." 

An application costs £275 and, as per my understanding, having the discontinuance set aside would also revive the whole claim, not only the costs part. Even if I would very likely win the original claim as well, this is not an ideal option.

2. An application to vary the previous order, referring to CPR 27.14 

The points of order 3 and 4 mentioned above indicate I could file an application to have the costs ordered as per the provisions of CPR 27.14, since they are yet to be ordered. For this option, the application fee would also be £275, and I'm not sure if the court would consider the cost incurred by that point or throughout the process.

Also, I'm not aware if there are deadlines by which I should make an application, and the court was of no help when I tried to find it out. So, I have no idea if the deadline has passed or not. The order was dated 16 March, the notice of discontinuance with the court 13 April, and the vacated hearing was supposed to take place on 28 April. 

This seems to be the most straightforward option as I could refer to the history of the claim in my application, even if the application fee is £275 - and upon a succesfull application I could possibly get it back. 

The court refused a cost hearing without an application, welcoming me to file N244 and pay the fee, but they did not provide any further instructions. So I'm not sure if they were welcoming an application on the grounds of 38.4 or as a variation to the previous order.

Moreover, annoyingly, they construed my query about the costs order after the claimant had served the discontinuance (the one which they did not file with the court) as a request to proceed with the hearing even if the claimant did not pay the hearing fee (which would have triggered a cost order). But, when the claimant filed the discontinuance with the court, they promptly vacated the hearing and asked me to pay £275 to have a cost hearing. They said that they cannot order costs without a hearing. 

3. Make a fresh claim and start a process to recover money

This is also an option since the costs are yet to be ordered and they owe me money. And while this is cheaper in terms of upfront money, personally this is the costliest option. Unless I pay money for someone else to do this (which I may not be able to recover as per the small claim track cost rules), I would have to learn the process, relevant legal bits, write letters, claims, and go to hearings and so on. As a result I would probably recover some of the fixed standard costs, and possibly some more for unreasonable behaviour as I have quite a strong case for it. But this is a bit of a lottery as one can never know what happens in the court. And as this process has taken already so much of my time and effort, I am not sure how much more I can invest in this given other priorities.

If anyone knows about better options or any relevant guidance I should read, I'm happy to hear about it.

I do not care about money as such – but also it cannot be right to let parking companies harass people with baseless allegations and legal abuse without facing any consequences. I've spent more than 100 hours making submissions to defend my rights, and paid ~£350 in direct costs, and this does not even begin to cover the stress and lost work. 

I also wrote my MP about this, and I'm going to write to the judge as well, but whether he cares about it or not is a different matter. 

So far, the overriding objective of the civil produce has not quite worked out in my case.

(1) These Rules are a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –

(a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence;

(b) saving expense;

(iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly;

I also talked with someone at the Citizen Advice Bureau, and while she sympathised, she encouraged me to be happy about the fact that I no longer have a CJJ and the claim has been discontinued – but she was much less encouraging about pursuing a cost order considering the time and cost and that outcomes are uncertain.

In sum, @Coupon-mad's advice about making sure at the set-aside hearing that the order will state in writing that the costs are reserved is pure gold. It saves lots of trouble. I did not quite understand it when I was preparing for the CCJ set-aside hearing, and thus failed to enforce my point it even if I asked about costs. 

Following a CCJ set-aside, late discontinuation is very likely. There's very limited monetary upside for a claimant even if they would win once the defendant's fixed set-aside costs have (~£300) been reduced from the claimed sum, let alone if they face the risk of paying for unreasonable behaviour. No point to invest time and money – just discontinue if a defendant produces a trial bundle and the claim seems to proceed to a hearing. The court seems not to care and the defendants are likely to lack knowledge/time/money to pursue a claim afterwards. But if the defendant does not file and serve all required documents in time, the claimant wins by default.

This turned out a long post as I had to summarise the situation I think I am in, and hopefully others can learn about it as well. 

bridgefixer

I received a reply from CILEx Regulation regarding the misleading 'consent' order I reported. The one that was titled as 'consent order', started with the "Upon the Parties having consented and agreed to the terms set out below: -" and had my name typed under the points of order. 

They will be writing to them reminding them of the need to comply with their legal and regulatory obligations and the importance of ensuring that they take all reasonable steps to avoid any risk of the court being misled, including unintentionally.

So, keep reporting and maybe their clean up their act and/or face an actual enforcement if enough cases are reported. 

EDIT: Here you can find my complaint regarding misleading 'consent' orders here along with with CILEx Regulation's response.

https://www.dropbox.com/scl/fo/a10o2s2usrq75yjpgmlyf/h?rlkey=gr4ys46k0qdt83z3hrguul3yy&dl=0

Coupon-mad

bridgefixer said:

I received a reply from CILEx Regulation regarding the misleading 'consent' order I reported. The one that was titled as 'consent order', started with the "Upon the Parties having consented and agreed to the terms set out below: -" and had my name typed under the points of order. 

They will be writing to them reminding them of the need to comply with their legal and regulatory obligations and the importance of ensuring that they take all reasonable steps to avoid any risk of the court being misled, including unintentionally.

So, keep reporting and maybe their clean up their act and/or face an actual enforcement if enough cases are reported. 

That is a good result, at least!  Could you ask CiLex for a copy of the letter please?  Tell them you need a copy as evidence, as you are considering a claim against the Claimant for losses arising from their unreasonable conduct throughout, and this is part of it.

I think filing a claim for your £275 and other costs is the only sensible step. You do not need a solicitor to do that.  Costs £25 or so but you must plead it properly.