Persimmon Homes - power of attorney

[des8]

Sorry about the tardy response

Good luck with your response, but I doubt if you will prevent your claim being struck out..
1)wrong defendant
2) no contractual connection with defendant

Tagging Amethyst & R0b to see if they have alternative view

[willdo]

Yes please Amethyst and R0b do you have any opinions?

I can't see how my sister could request I handle things and they accept I am handling things, and then they repeatedly harass her afterwards, and force me to incur £100's of calls from abroad in the process, and I cannot ask a Judge to order the end of said harassment and compensation for my call costs?

[R0b]

Based on what I've read I have to agree with Des.

This is a very common tale of a litigant in person who has little to no knowledge of the legal process and thinks that by issuing a claim against a company (particularly those who are large corporates and have multiple subsidiaries) without complying with the relevant protocols and/or actually understanding who it is they are contracting with, suddenly realise there are consequences in the form of costs.

There's a number of problems I see here:

1. As Des has pointed out, Persimmon are arguing that the defendant has no contractual relationship with the claimant. If found to be true, that's fatal.

2. Claims for harassment can't be brought using the Money Claims Online system. That type of claim is known as a Part 7 claim whereas the Civil Procedure Rules confirm that for claims of harassment, the Part 8 process should be used in the first instance (that means on papers). Doesn't look like Persimmon have picked up on that point but that would also be fatal to your claim.

2. The way you have handled things throughout is unlikely to help you, particularly the contents and tone of various correspondence you've sent to Persimmon. That's really not going to go down well with a judge and you may or may not realise that, any corrspondence you send to the other side may very well end up in a judge's hand.

3. Power of attorney is a legal concept and given that you referred to that in your claim is wrong. The general process where one is acting on behalf of another is to have a signed letter of authority, confirming that they are authorising that person to act on behalf of and/or handle certain matters.

4. Persimmon suggest they have a right to do work on or around the property, whatever that may be by giving 2 weeks notice. Have you actually checked the terms and conditions of sale? If there is a clause in there that says they can do this, then really there is nothing that can be done about that and your assertion that they have no right to come onto your sister's property is in fact wrong, because it has been agreed - whether notice has been given is another argument.

I think what sums this all up is that the witness statement at the very end says that they put you on notice and offered the opportunity to seek independent legal advice and presumably if you pursued this course of action then they will make an applicaiton (being the strike out application) with costs. On the face of it, it looks like they have given you ample opportunity to understand your current legal position but you chose to press ahead and I think that will definitely be a factor in favour of awarding costs against you.

Options? You could offer to withdraw the claim on a 'drop hands' basis, meaning that all parties walk away and bear their own costs. If Persimmon refuse then you could try to appeal to the judge's good side and ask him/her to exercise discretion in not awarding any costs. Equally, if Persimmon don't provide a schedule of costs you could raise that as a rebuttal point and say they ought to have done so 24 hours in advance and since they hadn't no costs should be awarded since you've had no opportunity to consider the costs they are seeking.

Limited options I'm afraid, but a harsh lesson learnt no doubt.

[Amethyst]

In agreement with Des and R0b.

Are you aware of Persimmon Homes Ltd making an application to the court for access to your sisters property as mentioned in Paragraph 14 of the Witness Statement ?

Im guessing that is what the communications early July were about...

Then sent a separate letter to tell me my Sister has two weeks to agree to this work or they will take further legal action and claim costs against us.

Your sister needs to check her terms of sale and then if there are legitimate and reasonable concerns about the access required to complete the works engage with the court process. Seeking legal advice first.

Personally it seems it might be a whole lot less stressful on your sister and her new baby to let them get the works done.

[willdo]

If I request to withdraw the claim would the app even be considered?

[willdo]

rob "Options? You could offer to withdraw the claim on a 'drop hands' basis, meaning that all parties walk away and bear their own costs. If Persimmon refuse then you could try to appeal to the judge's good side and ask him/her to exercise discretion in not awarding any costs. Equally, if Persimmon don't provide a schedule of costs you could raise that as a rebuttal point and say they ought to have done so 24 hours in advance and since they hadn't no costs should be awarded since you've had no opportunity to consider the costs they are seeking."

So the case was struck out as having no prospect of success. There was though no order as to costs.

The other side have now emailed me, a week after the date of the order, to ask me how I propose to pay their costs, and included a schedule which is 1K.

Do I have to worry about this?

[R0b]

Did you attend the hearing?

Did they raise the issue of costs or did the judge order any costs at the time?

If the answer is no the general rule is that where costs are silent then there is no order as to costs. I'm intrigued how they've sent you a schedule of costs after the hearing and are now asking you to pay.

You should not need to worry about this but that is assuming you've told us everything and nit missed anything out.

It would be sensible to write back to them and say that there was no order as to costs and so you are not required to pay their costs.

[willdo]

Did you attend the hearing?

Did they raise the issue of costs or did the judge order any costs at the time?

If the answer is no the general rule is that where costs are silent then there is no order as to costs. I'm intrigued how they've sent you a schedule of costs after the hearing and are now asking you to pay.

You should not need to worry about this but that is assuming you've told us everything and nit missed anything out.

It would be sensible to write back to them and say that there was no order as to costs and so you are not required to pay their costs.

I could not attend as I was abroad. But I think it went ahead without an hearing. There is nothing about costs on the order. And I did not raise it beforehand, though they requested their costs be covered.

Could they make an application for costs now?

[R0b]

If there isn't any mention of costs on the court order you received then the general rule is that no party is entitled to costs. This is unequivocally set out in CPR rule 44.10 (click here)

Strictly speaking, they could make an application but I think they would struggle to get a judge to agree. This is because the issue of costs should have been raised at the end of the hearing and if they forgot to, then that's their own fault not yours. Of course if they did raise and the judge agreed to a costs order but wasn't included in the judgment order, then they might have a better chance but that will also cost them money, probably more than what they're asking for.

If I was in your position, I would write back to them and state that the Judgment Order does not contain an order for costs. Therefore you do not consider yourself liable to pay their costs - the fact that they've given you a costs schedule post-hearing, suggests to me that they either forgot to seek costs or they weren't given any costs and are now trying it on with you.

[willdo]

Thanks R0b

Their app did have this at the end:

"The costs of the application to be summarily assessed"

Does that make any difference?

[R0b]

Nope - costs are at the discretion of the court, not guaranteed (except very limited circumstances not applicable here)

[willdo]

R0b thank you Sir.

[willdo]

Hi all,

Have a look at this would you?

It is what Persimmons expect to be returned to them.

My sister allowed them to do the work as long as the case is dropped without cost implications. They made a part 8 application a few weeks ago.

We are staying the claim one month so they can complete the work, in which case all will be considered settled and the Court will be notified.

I am concerned about the last paragraph in particular - 'costs in the case.'

They have told me this does not mean any acceptance of costs in relation to the claim. But I want to double check.

It seems to me that if this paragraph means nothing, and costs are going to be considered only if the case carries on after the one month pause, that the inclusion of this last sentence is meaningless? So why include it?

[des8]

That phrase refers to an order at the end of an interim application in litigation that the costs of the application will be in favour of the party who wins at trial at the end of the proceedings and paid by the side which loses the trial

It relates to practice Direction 44.4,2 (http://www.justice.gov.uk/courts/pro...costs2#rule4.1)

[willdo]

So should she sign it? Is she accepting that she will have to pay costs if for some reason we do end up going to trial and she then loses?