Alleged Wrong Defendant and Civil Procedure Rule 16

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*already

[atticus]

R0b and Atticus, thankyou so much for your input, this has come at a really bad time because I have a lot going on at work but I'm hoping to be able to have a proper stab at it before the deadline! I'll let you know how I get on.

That's one of the things about litigation. Doing it properly often requires quite a commitment of time.

[jaguarsuk]

Posted in Error

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Hi Everyone,


Following a postponement of the original hearing a new hearing date has been set and I have received an email from the solicitors who had previously been in contact (who appear to have decided that they now represent Premier Inn Ltd. not PIHL).

They have sent me a 'Legal Bundle Index' and asked me to comment on it, approve it and agree it. Is this normal practice or are they trying to get me to agree that a defence was in fact filed?

They have also cheekily stated that if I don't reply within 3 days then my approval will be presumed.

Any thoughts?



Attached Index:

[R0b]

When is the new hearing date? It is very cheeky of them to expect a reply within 3 days and there's certainly nothing in rules I know of that says you must respond within 3 days otherwise non-response means that approval is assumed, cheeky buggers! Think you need to reply to that and not bow down to their demands and say you acknowledge receipt but you need time to review the bundle and 3 days is unacceptable, especially if the hearing date is at least a month away.

It's quite common to have an agreed bundle of common documents so the judge doesn't have to look at 2 sets of bundles. I've seen recently that court orders are now suggesting that joint bundles should be agreed where, possible and prepared by the claimant unless the claimant is not represented and if the defendant is, then the defendant prepares the bundle.

What you probably need to do is make sure what they have included in the bundle e.g. defence, witness statements and evidence matches what they submitted previously to you and the court. Sometimes certain unscrupulous people will try to insert things that were not previously inserted if it assists them in the case.

Item 3-6 should be standard and nothing that would cause an issue but worth checking anyway.

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Thanks Rob,

The hearing is late next week. By agreeing to this list would I not be accepting that a defence has been filed? When in fact I'd like to argue that no defence has been filed in this case.

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Just thought I'd share the outcome of the hearing.

The claim was dismissed.

At the start of the hearing I requested a summary judgement and the judge refused this because a) he believed PIHL must be the correct defendant as it would otherwise seem odd that they were offering themselves as a defendant in the case and b) PIHL’s solicitor searched for Premier Inn Ltd. (supposedly for the first time) on companies house and said it appeared to be a dormant company and c) I had not raised the issue prior to the hearing.
I quickly showed the judge the emails I had sent to the court about the issue and he removed that reason from the decision. I also pointed out that Premier Inn ltd. was detailed within the website terms of use page as the company responsible and the judge then also noticed Premier Inn Ltd. is stated as the company that owns the intellectual rights. I asked whether Premier Inn Ltd. being a dormant company makes the website and all the contracts within it invalid. I also pointed out that the solicitor was representing a company not party to the claim so had no business being at the hearing.
The judge asked the solicitor if he had any comments, which he did not, other than to say he had not been instructed regarding this.
At this point the judge adjourned the hearing for 2 hours to seek some advice and allow PHIL’s solicitor to take instructions from PIHL (who were not present).

After the adjournment the judge confirmed that he would not be making a summary judgement and that I had two options. a) agree to change the defendant and continue with the hearing or b) adjourn the hearing until a later date to allow Premier Inn Ltd. to submit a defence. The judge also advised that I would be less likely to recover any sum from a dormant company. He asked why I was reluctant to change it and I said I believed Premier Inn had used this (and kept it quiet until I started a claim) deliberately to make it appear that I had been unreasonable in bringing this claim and to seek costs afterwards. The judge asked the solicitor if he had any intention of seeking costs based on this and he said yes he had been instructed to but that he was willing to proceed without that intent.

I took option a, as otherwise I could have just ended up in the same position again after 6 months.
The hearing progressed. The (now)defendant had 1 witness (the hotel handyman) who wasn't present at the hearing. The judge agreed that due to the modest value of the claim it wouldn't have been cost effective for the witness to attend. However the defendant’s legal team did submit a copy of their legal fees (some £2,000) to the courts before the hearing, presumably as a scare tactic. So I think the witness ought to have been there.
After quite a few questions between the three of us it basically boiled down to the fact that within the conditions it says the guarantee cannot be claimed for things that aren't promised by the hotel and because I could not prove that there is a specific mention that a shower will be provided the claim was dismissed.

The website does now state that the room includes a 'powerful shower' but I have no proof that it said that at the time and the specific hotel webpage isn't included on the way back machine website. I told the judge that I believed it was reasonable to assume that a hotel would include a shower but he said this wasn't enough to satisfy the conditions of the guarantee.

The solicitor appeared to be due at another hearing in the same building after ours and had been held up at another one in the same building before ours. It seems a bit of a coincidence that a solicitors firm (based nowhere near here) would have three hearings in the same place on the same day. Do the courts arrange the hearings around the legal firms?

Thankyou all for your input throughout this claim it’s been extremely helpful and I appreciate the time some of you have put in to helping me, even for the questions which will have no doubt been a bit mundane for you.

E

[R0b]

Thanks for the update, I'm sure it was a learning curve and you'll remember to learn what you can do better if you're in a similar situation. Just a couple of observations from me:

- If summary judgment was refused, you could always request permission to appeal that refusal on the basis the judge has failed to take into account your evidence that the contract is with PIL not PIHL. The fact the company may be a dormant one is neither here nor there and is irrelevant to the issue in question. The court should be asking itself who were the contracting parties at the time and if the evidence points to PIL as the contracting entity e.g. the website, the terms, the invoicing etc. then the assumption is that it is with PIL so in the absence to the contrary, PIHL is not a party and that is Premier Inn's fault for the failure to file a defence. Think the judge was giving Premier Inn a lot of slack on this one and I've seen other senior judges give summary judgment for much less like being a day late on filing a defence.

- Was there a costs order in the end? Sounds like there wasn't but wanted to confirm either way.

- Court's don't arrange hearings around law firms, rather law firms may have different clients in the same region so it makes sense for the same lawyer to handle multiple hearings on the same day.

- Ultimate lesson to learn is to make sure you get everything in writing if you want to support your claim as without physical evidence, you will have a much hard hill to climb. Hopefully you at least may have enjoyed the experience anyway!

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Hi Rob,

It certainly was a learning curve but I hope I'm never in this situation again to be honest.

-Would I still be able to appeal the decision even though I subsequently agreed to amend the defendant in the case? If they did allow me to appeal it is there any further risk of costs being awarded and/or having to have another hearing? The judge did say that he had considered those arguments but that he thought on balance it was unlikely PIHL would put themselves forwards as a defendant if they weren't one. So I worry that another judge may just do the same thing.

-There was no cost order. The solicitor was asked if he wanted to pursue costs but said that although he had been instructed to, he had no good arguments for it.

-So the defendants solicitor would probably have been independent of both PIHL and the legal firm representing them?

-Thanks, I wouldn't say I've enjoyed it, it's mostly just been frustrating and I've taken it as a bit of an eye opener that as the law gets more and more complicated over time, it'll be harder and harder for anyone without years of legal training or lots of money to fight those that do/have.


E

[Manxman]

I'm sorry to have to say so but I'm not particularly surprised that you were unsuccessful and I don't think it was a particularly complicated matter either.

"... After quite a few questions between the three of us it basically boiled down to the fact that within the conditions it says the guarantee cannot be claimed for things that aren't promised by the hotel and because I could not prove that there is a specific mention that a shower will be provided the claim was dismissed..."

I think both islandgirl and I pointed out to you some weeks ago that we doubted whether Premier's Good Nights Sleep Guarantee covered low water pressure and I'm really not surprised that the judge took the same view.

Add to that the facts that the room cost you £161, that Premier had offered you £60 goodwill (which you had already accepted) and that you were suing for the balance of only £101, and I think it was unrealistic to expect this would end in a win.

I don't think it's got anything to do with complexity or with who the correct defendant was.

Sorry, but I think you were wasting your time.

(And I say so now not to get at you - but in case anybody reading this in future finds themself in the same position as you did)

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Hi Manxman,

I couldn't prove that Premier Inn offered a shower because I didn't have evidence of what the website advertised at the time of booking. If you look at the website now you will see that they advertise not only showers in every room but 'powerful showers', which I suspect they were also advertising at the time but I can't prove it.

Given that they do now advertise a powerful shower, I don't think you can say that it isn't covered by the Good Night Guarantee can you? The website doesn't promise a roof on the bedroom, heating, electricity or a lock on the door but I'd say these are all reasonable things to expect too, an absence of which would lead to a poor night's sleep.

I appreciate that you don't like my reason for making a claim but it's not unreasonable to expect a working shower in a hotel room, and to expect a hotel that has such a guarantee to have to honour it. Just out of interest, do you believe Premier Inn have acted reasonably by hiding their real trading name?

The £60 Good Will payment is irrelevant as I've already explained but if you'd like to tell me why that matters, I'm all ears.

For anybody else reading this, I would encourage you to challenge Premier Inn if they have been unfair to you and make a claim like I have done. They are clearly dishonest and use under hand tactics such as hiding under a different trading name, don't let them fob you off.