judge's behavior and totally incorrect judgement

[carmichael]

Hi all,

Hope everyone is ok. I am a defendant of a long running claim for rent arrears and counterclaimed for failing to protect the deposit. Recently, I had the trial at a county court under small claims track and was unlucky to have a judge who must be hating Litigant in person as for no apparent reason was very negative towards me.

I explained this is my first ever case and asked for some explanation of the format of the hearing as I was not expecting a a case where claimants own counsel cross examining the claimant etc - only to be told by judge 'I am not here to give you legal advice'

I had well prepared for the case, but Judge wanted me to ask questions of the claimant and present my 'submissions' later.. Is this normally the format ?

anyway, judge was also hurrying me up and did not even make an attempt to guide a LiP. All of this meant, I was thrown off course and could not even point out some key documents in the bundle which are crucial for the case.

I had submitted the bundle more than a year in advance and had submitted a skeleton argument, but disappointed judge did not see them at all..

As a result, I got a judgement which is not favourable for me. I then even asked for permission to appeal, which the judge also refused. But, I know if I appeal, I am 100% likely to win as the bundle already submitted has everything I need - it was a simple case of pointing out to the judge.

so, what options do I have ? is there a way to appeal based on above or should I just accept the judgement event hough it is wrong and only that way due to my bad luck and not knowing the format ?

thanks

[dslippy]

Sorry, but the judge seems to have got it about right.

He is not there to assist you, but must at least read the papers.

[carmichael]

yes, probably true..but at least was expecting bit more guidance from the Judge. He was as if he hates LiP.

even shocking was claimant said he wants £X and he also admitted £ y could be deducted from it for repairs, but Judge ordered full £X to be paid !
(he simply forgot about repairs during judgement order).

Given this, how can I get this corrected? also no prospect of appealing even when it was refused at the hearing ?

[MIKE770]

In most cases permission to appeal to the Court of Appeal is required. The lower court may grant permission, but this is unusual as it is a way of saying that the judge accepts the decision may not be right. More often, permission is refused and one has to apply for permission from the Court of Appeal itself. It is vital to initiate this process quickly. One has to lodge an “Appellant’s Notice” within 21 days of the decision to be appealed along with grounds of appeal.

Get Professional advice as this can be expensive.

Sure others will advise or suggest, but time limits are in process.

[atticus]

With respect, the OP should have sought information about the procedure in advance of the hearing. The judiciary of England and Wales produced this helpful guide some years ago - https://www.judiciary.uk/guidance-an...-civil-221013/

[R0b]

First of all, as a litigant in person you have no special treatment. If you don't know the rules or the process before issuing a claim then you shouldn't start proceedings until you are somewhat familiar. The rules can be daunting and complex but there is plenty of articles and materials to support LiPs if you do a little research, as the one provided by Atticus.

As for appealing, I think only you can decide whether you have grounds to appeal the decision. Based on the limited information you have given, I suppose it is possible that you may be successful on appeal - maybe not all of the grounds you might be seeking but perhaps at least one. Even if permission was refused orally by the judge in question, you still have a right to make a written application for appeal.

If the case fell under the small claims track, then you need Form N164 and the fee is £129. I'm not going into great detail but AdviceNow provide a decent basis guide on how to appeal and on what grounds you can appeal, link here: Appealing against a county court decision | Advicenow

There are limited grounds you can appeal but the common grounds are: the judge made an error of fact, error of law or the decision was unjust due to the irregularity of the court. The last ground is considered a high hurdle but not insurmountable and can include issues like:

- the judge deciding points that have not been pleaded in the particulars of claim:Satyam Enterprises Ltd v Burton [2021] EWCA Civ 287; Charles Russell Speechlys LLP v Beneficial House (Birmingham) Regeneration LLP [2021] EWHC 3458 (QB)

- a party did not have a chance to make submissions: Dunbar Assets plc v Dorcas Holdings Ltd and others [2013] EWCA Civ 864

- there were no reasons or at least there were inadequate reasons for the decision given: Pendragon v Coom [2021] 3 WLUK 366; Weymont v Place [2015] EWCA Civ 289

- or the way the judge handled the evidence was poor: Serafin v Malkiewicz & Others [2020] UKSC 23; Hadi Jemaldeen v A-Z Law Solicitors [2012] EWCA Civ 1431; Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz [2016] EWCA Civ 556; Loveridge v Mayor and Burgesses of the London Borough of Islington [2021] EWHC 70 (Ch)

You should be able to find most if not all of the decisions using British and Irish Legal Information Institute (bailii.org). If you can't find it there, do a search and there should be articles, sometimes copies of the judgments on solicitor or barrister websites.

The key point is to keep your appeal brief. There is no requirement for small claims appeals to include a transcript but where you are questioning the decision of a judge or what he/she has or hasn't said, it is almost inevitable that you should obtain a copy. Again it comes at a cost and must be done by an authorised transcription company but you usually only need the decision element which tends to be cheaper than having the whole case being transcribed as that can be more expensive. More info here Apply for a transcript of a court or tribunal hearing - GOV.UK (www.gov.uk)

Of course, if successful you should be able to get back any monies paid as part of the appeal.

[carmichael]

thanks all for the replies. on hindsight I think I should have seeked professional advice.

But, I had researched a lot about case laws and was feeling very confident as the truth was on my side. But, I failed at pointing out relevant documents within the bundle and I assumed Judge would have seen them.

I had also attended multiple hearings leading to this hearing and thought, the format would be same. basically, what I am saying is, I failed to present the evidences in the 'format' of the hearing despite I had overwhelming amount of documents in the bundle that would have definitely swayed the judgement.

so, having read the AdviceNow guidance on appeals, my question is this, despite judgement order saying appeal is refused as it has no realistic chance of success, can I still file permission to appeal based on the following.

- As LiP I failed to point out the evidence in the bundle
- Judge also made an error in not subtracting the repair costs admitted by Claimant orally during the hearing.

If I make such an application, does that mean I do not have to pay the claimant the sum as in the order of judgement until I get a decision on N161?

[carmichael]

Hi rob / atticus

any advice on the above pls? basically would like to know if my appeal on the basis of failing to point out a document that was already in the bundle and the fact that some costs orally agreed by the claimant is not subtracted in the judgment gives me ground to appeal ?

also, I looked at N161, is my understanding correct that when I lodge it, I can tick a box to say 'vary the order' which means I do not need to comply with the initial judgement I had received until a decision is made on the appeal - which effectively means Claimant cannot enforce the judgement?

thanks in advance.

[atticus]

You may try.

In my opinion, it is for you to draw the attention of the judge to anything you consider relevant, and to explain why. Simply placing a bunch of stuff in front of the judge and hoping that he sees what you want him to see is not good enough.

[carmichael]

Hi atticus , yes I am kicking myself for not doing that at the hearing as that document was pivotal and categorically would have proved my point. I may try given filing the Appellant Notice is only £129 and I stand to win many times more if the appeal is allowed. is there anything I might have to pay?

anyway, the second reason of not reducing the repair costs alone give grounds for appeal ?

also if my make request to appeal, I do not need to comply with the initial order right until decision is made on N161 ?

thanks

[R0b]

is there anything I might have to pay?

As it's an appeal, the small claims cost rules apply and I don't believe there are any associated costs if you lose since an appeal is not supposed to be a re-hearing of the case.

However, as I mentioned above you will inevitably likely need a transcript of the decision, I refer you back to my earlier post.

anyway, the second reason of not reducing the repair costs alone give grounds for appeal ?

Possibly but that depends on what was said. If, for example the Claimant might have said if the case is proven that their damages claim should be offset against your damages claim if your case is proven (and the keyword here is proven) then it depends on whether the judge found your case to be proven. If you failed to walk the judge through your case then you may not be deemed to have proven your case. Only you can work out whether that was the case or not. Nevertheless, you may want to include it as an appeal point anyway.

also if my make request to appeal, I do not need to comply with the initial order right until decision is made on N161 ?

You are still required to pay the amount pending the appeal. The general rule is that the Claimant has already won the initial claim and should not be required to wait until the outcome of the appeal before being paid. If the appeal is successful, the claimant will need to pay you back.

[carmichael]

thanks rob

I thought I will not have to pay as the case is pending appeal. But I can understand about the general rule of paying and not keeping the claimant waiting.

But, the issue here is the orignal judgement I hv won the counterclaim too, so claimant owes me money, so in my settlement can I take that away and pay him the rest? so as per judgment I owe him 9k, he owes me 6k, so should I look to pay him 9k or the difference 3k - would any of these has any adverse effects for my appeal notice ? (please note, one ground of my appeal is about the 6k as it only takes into account one tenancy for s214, but in fact there were two)

i.e claimant cannot claim 'everything is done and dust' and uses that as an argument to deny my request to appeal.

I will read about transcripts, am I right in thinking I need it even to file an Appellant Notice ?

also, out of curiosity what happens if I do not pay anything at all ? claimant gets a CCJ against me ?

Thanks

[R0b]

If the judgment states each party to pay each other X then that is what you must do, which is pretty poor way to do things where a counterclaim is involved. It is quite normal that claims against each other are offset so that neither party has to pay each other the full amounts claimed, only the difference. I suppose there is no harm in seeking to agree that with the claimant directly but make sure you get it in writing and you can't force them to accept that if the judgment says otherwise.

You would normally need to file it with your notice but the courts can be slow and the transcripts aren't always given to the transcription companies within a reasonable time so you may have to chase up. If I remember on the notice there is a question about transcripts and you can explain in there why one is not attached i.e. there have been delays by the court in getting the transcript over to the company despite repeated requests. Appellant will file a copy of the transcript with the court as soon as it is received.

If you don't pay within one month from the date of judgment, you will get a CCJ against your name and will be reported on your credit file for the next 6 years. If you pay it off after one month then you can request a certificate of satisfaction which may help your credit to some extent but you are still tarnished with the fact that you received a CCJ in the first place. Mortgage rates or credit limits and renting will likely be impacted and may need to explain the situation.

[carmichael]

thanks again rob

about the payment, if I come to an agreement or pay the claimant in full, how will the courts know it's been paid. what stops claimant from forcing the judgement despite receiving the due payment pls? (asking because claimant is a tricky person to deal with) You had asked me to get claimants agreement in writing, so I imagine it would be used in courts, is there a separate process he has to follow with courts?

also, regarding appeal, claimant cannot bring fresh claims against me during the appeal process right ? as respondent, he only gets to defend and not make a counterclaim against me? just want to make sure I do not invite any more false claims from him.

and wherever I read, I get the idea appeal process is complex and I need professional help, but N164 seems like a form, I can manage on my own. does it only get complicated during the appeal itself and not when requesting permission to appeal ? (I unfortunately don't qualify for legal aid and at same time cannot afford to pay £350 per hour for legal advice, so weighing up the merits of appeal even though, I know I have a good chance of appeal being granted for the obvious mistakes - claimant already admitted repair costs in his witness statements and it is documented without need for transcript to prove it, I believe)

thanks

[carmichael]

Hi all,

I tried to get some professional advice given the timelines and the issue at hand, but the lawyer I saw wasn't even aware there are two stages to the appeal process and I was gobsmacked ! is there a specialist lawyers I need with Appeal process?

anyway, looks like this forum has more accurate info than anywhere else - could rob or atticus reply to my post (#14) above pls?

thanks