Lynnzer - Patient Direct Court Claim

[Amethyst]

Ahh that is good news Lynzzer. You'll be annoyed it was by default due to them failing to pay the hearing fee.

Do you want the posts that we unapproved reinstating and moving to the public forum ? or just moving as is ?

[Lynnzer]

Ahh that is good news Lynzzer. You'll be annoyed it was by default due to them failing to pay the hearing fee.

Do you want the posts that we unapproved reinstating and moving to the public forum ? or just moving as is ?

you can move everything back.

[Amethyst]

Re-approved everything for you and moved back to public forum.

[Lynnzer]

Re-approved everything for you and moved back to public forum.

Thanks Amethyst.
For the information of those who haven't followed this case yet, the topic was taken off the general forum so that "items of interest" to Patient Direct in relation to their submitted court claim were outside of their reach.
The case has now been kicked out by the court for non payment of hearing fee but that's only a marginal success. This case is probably typical to many other cases where PD have misled people and I would have preferred it to go to court. I guess I should have added a counter-claim so that even if the case was kicked out then the counter-claim would have still been live.
Since the start of the action against us, I have knocked up a website at http://www.thebridesmother.co.uk/PD/index.htm This is being updated as soon as I can get round to it so that a complete breakdown of the issues and all the complexities are available for people to use in their own case.

I will mention here right now, though, that PD have a clause in their terms and conditions (which they will probably not inform you about as they never seem to show people them,) that all legal action should be settled in their local court at Blackpool. Northampton processing court seem always to just throw the case to the local court of the defendant anyway, but I do know that PD wrote to our local court and asked for the case to be moved to Blackpool. I wasn't shown the correspondence but I think it would have made it clear that the Terms and Conditions of the contract made said that court action would be at Blackpool.

So, how does that stand in the legal considerations?
Well, for one thing it means that if they are successful in getting Blackpool court then it'll be a huge inconvenience to you. It probably means that a lot of people would just fold at this point rather than go through the expense and time of visiting Blackpool. I guess this is what PD rely on.
At the other end of the consideration, if the defendant's local court is allocated and it won't transfer the case it means that PD will have the same sort of inconvenience of having to travel and perhaps even make an overnight stay. The logistics get awkward here methinks so it's probably likely that PD will fold if they can';t get a Blackpool court hearing.

In any case, there are some considerations you ought to be aware of to negate the potential of the case being heard at Blackpool without you having to just cave in a pay them. Your defence is the important thing. If, for instance, your case is heard with you present then the judge will no doubt skim through the defence submission rather than look at the details. You will be asked questions which you may not be prepared for and of course PD's legal representative will perhaps be able to "fill out" their case further from the submitted details. In our case the Particulars of Claim on the Claim Form simply said, "There is a business to Business contract in place with the defendant. They are insisting they do not have a contract with us due to to their company being non existent (NB they claimed against a company which isn't ours, as it didn't have the Limited on the end of the name) I have done checks this company was incorporated on the 27th March 2003 (yes, the Ltd Company was - but the contract was made with a name which didn't have Ltd on it therefore the two companies are not the same)
The defendant paid a deposit by way of credit card. No monies further have been received and services are being provided. We have tried to resolve this matter to no avail. The contract is with one of our companies T/A Patient Direct. They are insisting they do not have a contract with us and yet we have card details for a deposit and bank details for a direct debit mandate."

Now, in the real world, such a claim would fall foul of being an unsubstantiated case. There's nothing to support the claim. No contract was submitted, nor was it sent within the time allowed for it to be sent as Further Particulars of Claim, and without that this is nothing more than a hearsay case. There is no breakdown of the sum claimed and many other things absent that would be necessary to build their case. I know of cases where the court has thrown out a case on such a basic unsubstantiated claim. So, the ideal situation would be that they aren't given the chance in court to expand on their almost non existent case. A court should anyway, be up to speed on these things and should examine the facts before it went to a full hearing but most courts are so much behind in their admin that you can't guarantee it. What you need to remember then is that if the case does proceed, either in your local court or at Blackpool, you really want it be heard in the absence of either PD and yourself. The way to prepare for this, as already said, is to put in a defence that is more like a full presentation of the issues so that it reads like a book. To give a simple example, it is the defendant's case that the claimant's representative didn't show us the rear page which included the Terms and Conditions" just won't work. They aren't responsible for your lack of astuteness and it is already accepted that the courts will not readily overturn a foolish decision. However, the same example can be enlarged that will then sit well in legal terms to give you an upper hand. "It is the defendants case that when the claimant's representative said that the contract was for a 2 year period, they didn't mention the roll-over of contract as explained in the Terms and Condition which we never shown. That makes the statement of the contractual period a half truth since it wasn't divulged yet gave an automatic contractual period extension. The court is reminded that a half truth is a misrepresentation and we ask the court to consider it at best as an innocent one for which the remedy is rescission of contract." You have built a strong legal argument here. The court is now aware that even though you were never shown the Terms and Conditions which is entirely your own fault, the lack of clarity, or the half truth statements made in regard to the T & C's is evident and you have also brought in the reason why this matters and how to deal with it by rescission of contract.

I know that the time taken to build up a defense to use in this manner is very long. However, in our case we had a £10500 reason to do it. I suggest you now consider the same sort of defence if needed but in the meantime, if things haven't quite go to a claim being issued make sure that every piece of correspondence between you and them is full of loaded questions that will assist you if things do eventually turn nasty.

[Amethyst]

Thanks Lynzzer I'm sure that will be useful for others dealing with this company.

Im not sure you said - was the case allocated to Blackpool after the claimant made their submissions on the matter ?

Also was the case allocated to small claims track or fast track ?

[Lynnzer]

Thanks Lynzzer I'm sure that will be useful for others dealing with this company.

Im not sure you said - was the case allocated to Blackpool after the claimant made their submissions on the matter ?

Also was the case allocated to small claims track or fast track ?

I was placing the court under some considerable pressure. I had submitted a Strike Out Application to court on an ad-hoc basis in early September. This was returned to me 3 weeks later with the request that I make out a Strike Out Application on the proper form and pay the fee of £255. I did this right away. I called the court in the week before the Hearing Fee had to be paid to see how things stood. I was told that the Strike Out Application was in the normal process and that I couldn't rely on it being heard in time so it was recommended that I continue as if the case would progress. At the time I was told that the Hearing Fee hadn't been paid yet anyway but they had a few more days for that.
At the time of the last payment date I was in Spain on business so couldn't check things out, but did so 3 days later when I returned. I was told that as far as they could see the fee hadn't been paid but all the papers were with the District Judge so they couldn't advise further. It was then that they told me that PD had requested the case be transferred to Blackpool. I asked for the email address of the Case Workers ans shot off a request that the transfer be refused. I also sent another email the day after advising them that PD had failed to respond to Practice Directions in the first part of the claim and had been given a further opportunity to do so, that they had failed to now pay the Hearing Fee and that in any case their case was lacking any substance that it was a meaningless bare claim with no supporting evidence. I reminded them that failure to pay the Hearing Fee was subject to the automatic Strike Out as in CPR 3.7A1 but seems not to have been.
Two days later I got the Strike Out for failure to pay the hearing fee.
It was allocated to the small claims track.

I have submitted a claim for costs as it was never shown on the Strike Out. I don't expect it to be allowed but here's the letter I sent.: I herewith submit a request for payment of costs applicable to the proceedings which has been struck out, together with a request to set a further punitive damages award.
1. Accrued actual costs. A fee of £255 was paid for a Strike Out Application. I request a return of that amount from the claimant
2. Purchases of stationery such as A4 printing paper, DVD discs, document folders, envelopes, and stamps amount to approximately £40
3. Time spent on research and construction of defence. This is almost impossible to calculate since I was researching for many weeks often for hours each day, by visiting legal websites and studying legal aspects of contract law to use in the defence. It would account for no less than 60 hours, and as can be seen from the submitted documentation such as the defence you have a good idea of how much work was put into it. I make a claim for 60 hours of work at an hourly rate of £19 as per CPR 46.5 being time undertaken as absolutely necessary to build a well informed defence. It was crucial that I studied the legal aspects of contract law to understand our position and to a non legally trained L.I.P. this was no easy task. Cost total for this is £1140.
4. Travelling to various alleged advertising locations to obtain proof of non service of contractual obligations by the claimant.
Visit to Stockton General Hospital on two occasions each at a return journey of 32.2 miles ie total of 64.4 miles at a cost of 0.45 per mile = £28.98
2 visits to Hartlepool Hospital at a return distance of 19.4 miles each = 38.8 miles at 0.45 per mile = £17.40
3 visits to Peterlee hospital with a return distance of 3.6 miles = 10.8 miles at 0.45 per mile = total of £4.86
4. Parking in each location on each occasion, necessary to prevent a Parking Charge Notice at £3 per each visit = £30
5. The claimant's behaviour throughout has been nothing short of shoddy. The Claim Form - Particulars of Case was bare of any detail so was useless for evidential purposes but still required as strong a defence as possible from us. They failed to file their Directions Questionaire in the usual statutory period, they failed to pay their Trial Fee, and latterly have also failed to send out documents to both ourself and the court on which they intended to rely in court. Despite all their failures we have had to proceed with our own extensive and expensive deliberations on the chance that they would be excused their procedural impropriety.
6. Punitive award of damages. I submit that the claimant acted in a grossly unprofessional and shoddy manner through the proceedings and prior to the issue of a claim. Email evidence within the trial defence bundle clearly shows that the claimant was named wrongly on the claim, and the respondent was also wrongly named. Also the fake signature was drawn to their attention. The claimant's attention to these points was repeatedly drawn and explained to them but they continued the action without any change of direction. The early notification of cancellation of a provisional contract as was promised by the respondent's representative was totally rejected even before any work had been done to progress the advertising application. They ignored all requests to stop any further work and their attention was drawn to the fact that failure to do so would be taken as lack of mitigation of costs. They responded with a mere "the contract does not have a right of cancellation".
The claimant's representative acted in a manner that can best be described as being totally unconscionable, ie he told lies, made numerous misrepresentations by way of half truths, deliberately posing as a director when in fact he was not and taking advantage of a weaker party who was, and now at the age of 70 is, suffering from mental decline. He didn't show or explain the fact that the Agreement was a 2 sided document with the Terms and Conditions on the reverse of it,thus being deliberately undisclosed. This was grossly unconscionable due to highly disadvantageous terms and conditions not being able to be assessed. The representative promised to leave the terms and conditions so that an initial conditional acceptance of the Agreement could be either confirmed or rejected after viewing them by the Company Secretary, ie Mr Lynn Robson. Nothing was left, and in fact even the business card that was presented at the place of the meeting had insufficient detail to it to allow contacting the company.
The claimant is still using terms and conditions, and an Agreement, that has already been found to be unconscionable by the Federal Court of Australia with necessary changes to its format having to be made in order to ensure fairness, in particular but not alone, the need to show the Terms and Conditions on the front of the Agreement to prevent them being "hidden". The continued use of the original Agreement within the UK is no less unconscionable and the claimant should have been aware
that the use of it in the manner it was could not be excused.
The stress placed on the respondent, ie Mr's Robson personally, has been unbearable. The claimed amount was sufficient to bankrupt the company. Mrs Robson has spent the last several months in a dire state. She has had endless sleepless nights often in tears, and has come close to closing the business as a result of the worry. On the 26th October we (that is myself Mr Lynn Robson and Mrs June Robson) had our Golden Wedding Anniversary. It had been intended that we would take a holiday to celebrate but the threat of having to find over £10,000 if the claim proceeded to court and was found against us, took all that away from us.
As the Federal Court fined the claimant's Australian incarnation an amount of 230,00 Australian dollars, the claimant should have been wary of the consequences of using the same sales tactics here, especially since they are all controlled by the same directors who would all be aware of the Australian case.
I ask the court to consider an amount of £2000 as being just and fair in all circumstances even though we will never have the opportunity to wipe away all of the misery of having lost the chance to properly celebrate our Golden Wedding again. Not only would it mitigate our own misery to some extent but would serve as a warning that similar sales tactics with other potential customers of theirs would not be tolerated. I know of another 3 companies undergoing the same problems with them and I am assisting them in their own efforts to reject the continuance of the contracts. Each of these companies use the same advertising locations as we were considering, and at which there is no evidence at all of any advertising taking place. To the contrary, as can be seen in the DVD in the defence bundle, there is ample evidence of the screens at the locations being switched off.
7. Total claimed against the international conglomerate.
1. Strike Out Application fee = £255
2. Stationery costs as in 2. above = £40
3. Necessary research and preparation of defence and further amended defence, £1140
4. Travelling expenses = £51.40
5. Parking Expenses = £30
6. Punitive Damages = £2000
Gross total = £3516

[Lynnzer]

I have a result from my written costs submission. I think??????
Got this today:
General Form of Judgement or Order
IT IS ORDERED THAT:
1. Unless the Claimant by 4pm on 2nd January 2019 applies to the Court for relief from sanctions the Order of the Court dated 13th November shall remain in full force and effect.
2. If the Order of 13th November 2018 remains in full force and effect then the Defendant shall serve an application for costs in the case by 16th January 2019
3. If the Order of 13th November 2018 remains in full force and effect then the Defendant's application in respect of costs shall be listed for hearing on the next available date after 16th January 2019 with a time estimate of 45 minutes.

Wow.....
I think.
I haven't been down this road but it appears to me that PD can ask for the case to be reopened? Eh?
If they don't then the costs application will stand.
Does anyone know if there's a proper application form for costs, and if a payment is required for making it?
Any advice on this further process will be really appreciated.

The way I see it is that if they apply for relief it means the case is unstruck out? and it is relisted? with them having to pay a Hearing Fee.
If they don't apply for relief then it goes to a costs application (in my previous post) and I would think they would have no clue about how to defend it or even bother turning up for their objections to be heard. As it would probably mean them having to do some pretty quick work in the latter end of the year I doubt if they'll even have the time for it.
But maybe I'm wrong so please throw some light on this if you can.

[Amethyst]

It sounds like they have complained to the court that they were sanctioned for not paying the hearing fee in time, and the court has ordered they apply formally for relief from sanctions. If they don't do so by the 2nd Jan the judgment is held.

Then IF the judgment is held you can file for your costs before the 16th Jan to have a hearing of 45 mins after that date.

IT sounds likely that PD will be apply for relief from sanctions so all you can do at this point is sit tight and check with court on the 3rd Jan and go from there.

[Lynnzer]

It sounds like they have complained to the court that they were sanctioned for not paying the hearing fee in time, and the court has ordered they apply formally for relief from sanctions. If they don't do so by the 2nd Jan the judgment is held.

Then IF the judgment is held you can file for your costs before the 16th Jan to have a hearing of 45 mins after that date.

IT sounds likely that PD will be apply for relief from sanctions so all you can do at this point is sit tight and check with court on the 3rd Jan and go from there.

Yup.....
Just called court. They have made a formal application for reinstatement of the claim.
Oh bugger.......
Will send an objection to court then.

[Lynnzer]

To the court:
I have today received a General Form of Order or Judgement in respect of the claim above which gives the claimant the opportunity to apply from relief from sanctions, ie for the case which has already been Struck Out to be reinstated.
It is my submission that this is not worthy of the court's consideration as an acceptable progression of the case.

1. The claimant didn't file their Small Claims Direction Questionnaire in the statutory time and was served a second chance to do so by the Court sending out a General Form of Judgement or Order giving them more time to do so.

2. They sent no documents or supporting items to substantiate their claim with their original Claim form which would be necessary for them to progress their claim, and more importantly upon which we as defendant in the case needed to properly defend the action. They submitted only a bare unsubstantiated monetary claim.

3. As the court knows well enough, they didn't pay the Hearing Fee in the time allowed. This was inexcusable since the company is an international conglomerate with ample legal expertise to draw upon. Failure to pay in a timely manner is a breach of CPR 3.7A1 and the correct action was undertaken as a result in the claim being struck out. It is inexcusable and we submit that the reinstatement of their case is not in the interests of justice which should give certainty to the Court's process. It is our submission that any application for relief should take this into account.
Striking out a case gives a defendant reasonable belief that due to the claimant's procedural impropriety the case is rightly closed and it should not be reinstated with impunity.

4. The claimant has never sent any items/ documents which both parties are required to do within 21 days of the Hearing date, which are to be used in court. We sent a full bundle to the court and the claimant but have received nothing from the Claimant so it is entirely incomprehensible as to how they can state their case given that they have nothing to uphold their claim. At this stage of proceedings it is perhaps even an abuse of process that they fail to send supporting documentation, fail to pay the hearing fee and still hope to have the case reinstated. The Court is not their servant.

5. The Strike Out awarded was for their non payment of the Hearing Fee. That alone. However, we have also made a Strike Out Application bringing in a number of other points. This Application will be on file and may not have been considered due to the earlier Strike Out for non payment of fees. However, a payment was made for the Strike Out Application and we submit that this should now be considered, especially since it was submitted in a timely manner, and in light of the claimant now trying for relief from sanctions. At worst, it should be considered alongside the merits or otherwise of the reinstatement request. The Strike Out for non payment of fees is potentially compounded for the reasons already set out in our Strike Out Application, some or all of which may well have resulted in a Strike Out for different reasons which may not have been easily refuted. A reinstatement should not progress further without consideration of the proper Strike Out Application made by us.

6. The Claimant is still unable to show proof of service of the agreed advertising, the basis of this claim. It has been sent a DVD in the bundle (as has the court) which shows clearly that the advertising screens were switched off, that a FOI request to the NHS Trust hosting the advertising even agrees that no monitoring has taken place of the advertising screens being switched on, and that a video clip at one of the advertising locations show a conversation with a receptionist who clearly says that the screens have never been switched on at all. Their case is without merit.

7. They had ample opportunity to rebut the defence points and didn't. They have therefore admitted by default to numerous occasions of misrepresentation, the "amendment" of the signature of the defendant's representative. and further points upon which we rely as part of our submissions

8. The Claimant has named the wrong defendant. Norma and June Fashions Ltd is not the party shown on the contract.

9. The Claimant is wrongly named. It is not Multimedia International Services Ltd. The contract was with Patient Direct .

I present this objection to the reinstatement of their case as being considered in light of all the other filings which the court has from us on the way that the Claimant has handled itself.
Respectfully Yours

[R0b]

Hi Lynnzer, did the court say whether the application was made with or without notice? Any application for relief from sanctions should be made with notice as opposed to without notice and a hearing is generally given too. If Patient Direct didn't do this then that could also be an argument to put regarding your opposition to relief.

In my view, I think you should set out the grounds for opposing the relief from sanctions in the same format as defence or witness statement but substituting the title to something like "DEFENDANT'S GROUNDS FOR OPPOSING RELIEF FROM SANCTIONS"

Also the relief from sanctions is based on CPR 3.9 and what is known as the Denton Principles (derived from a case of the same name). It's based on the following:

1. Was the breach significant or serious?
2. Was there any good reason why the breach occurred?
3. All circumstances of the case

You would be wise making arguments against that backdrop because that's what a court would take into account.

[Lynnzer]

Hi Lynnzer, did the court say whether the application was made with or without notice? Any application for relief from sanctions should be made with notice as opposed to without notice and a hearing is generally given too. If Patient Direct didn't do this then that could also be an argument to put regarding your opposition to relief.

In my view, I think you should set out the grounds for opposing the relief from sanctions in the same format as defence or witness statement but substituting the title to something like "DEFENDANT'S GROUNDS FOR OPPOSING RELIEF FROM SANCTIONS"

Also the relief from sanctions is based on CPR 3.9 and what is known as the Denton Principles (derived from a case of the same name). It's based on the following:

1. Was the breach significant or serious?
2. Was there any good reason why the breach occurred?
3. All circumstances of the case

You would be wise making arguments against that backdrop because that's what a court would take into account.

I take it that if the Strike Our Order didn't say that it could be objected to then it didn't give Notice in the way I think you mean.
The Strike Out Order is attached for comments

[Amethyst]

Sorry just a small thing.

The claim has been submitted by Multimedia International Services Ltd.

then you put this is your response to the relief from Sanctions application

9. The Claimant is wrongly named. It is not Multimedia International Services Ltd. The contract was with Patient Direct .

so the Claimant is correctly named. Part of your defence I believe was that you contracted with Patient Direct and not Multimedia International Services Ltd - however Patient Direct is a trading name of Multimedia International Services Ltd ( I think you were arguing that that wasn't disclosed to you at the time of taking out the contract?)

Re the Notice, the claimant should have served a copy of their application for relief from sanctions on you as well ( with notice ).

[R0b]

What I meant is did the court confirm or were you able to ascertain whether the application for relief from sanctions was made with or without notice. CPR 3.9 governs applications for relief and is self-explanatory and it is usually the discretion of the court to grant relief (in this case the striking out of the claim be set aside and the claim continue). I can't quite put my finger on it but I am fairly certain that there was some case law suggesting that any application for relief must be made with notice i.e. you are made aware of it and there should be a hearing to allow the other side to put their case why relief should not be granted.

Whenever an application is made for relief the 3 questions above are derived from a Court of Appeal case, Denton v TH White Ltd which requires a court to apply a 3 stage test when deciding to grant relief. As a basic example, applying the 3 stage test in your case, you might argue the following:

1. The breach was significant and/or serious in that a non-payment of fees meant that the claim could not progress further and otherwise delayed proceedings.

2. There was no good reason why the fees had not been paid on time. The duty was on the claimant to pay the required fees and the claimant was made aware by an Order dated [DATE] that the fees had to be paid by [DATE]. [The Order further warned the claimant that a failure to pay would mean that the claim would be struck out. The claimant took no steps to make the payment by the required time.] [The argument that the claimant relied on the advice of the court staff is not acceptable. The court staff are not legally qualified to give advice and it was wrong for the claimant to rely on them.]

3. In all the circumstances there have been serious consequences flowing from the breach of non-payment because the date for trial has been lost as a result of the breach and the court has to expend further limited resources that it would not have otherwise used had the claimant complied in the first instance.


Obviously I have not read your full thread and the above may or may not apply but just gives you a flavour of how you can oppose relief from sanctions. There might be more you can add to the above and the wording in bracket sis optional as not sure it is applicable to you.

[Lynnzer]

The M.I.S Ltd v Patient Direct situation is spelled out in the defence. In fact that claim form says "This contract is with one of our companies T/A Patient Direct"
That seemingly innocuous statement really muddies the waters as far as I can ascertain. To put it into context think of it as British Rail being a Group. Then a court case mounted by it against a British Rail Properties customer would not have the correct party named as the Claimant. In this current case, since it's M.I.S. Ltd making a claim and stating the action is for one of its group members T/A Patient Direct it cannot really change that descriptive cock-up and therefore has no Privity of Contract. At least it's worth arguing.

To compound that assertion it's worth noting that we were never sent a copy of the contract (or anything else) in the Particulars of Claim, nor does the P.O.C make any statement that Further Particulars would be sent. In fact nothing more was sent to uphold the basis of the claim. So what they have here is a bare claims submission with no evidential documents/items to substantiate their claim.

As for the matter now in consideration for relief from sanctions I am keen to get things correct and seek specific advice on how I should draft up an objection. I agree that the format should be as already mentioned (thanks Rob, post #26).
What I really need is specific advice on whether or not the request should have been made with notice to me, and whether or not it should have taken place in a hearing. If we should have been informed before an application is made then it's yet another instance, seemingly, of lack of procedural compliance which is essential to strengthen the objection.

What I have from the court seems to suggest that they have to make an application for relief by 2nd January but it doesn't make it clear that consideration of that application would be at a hearing to determine its legitimacy. It may be that they can make an application and the court may then decide to refuse it out of hand or otherwise convene a hearing if they consider the request has merit. The Order only says "........Unless the Claimant by 4pm on 2nd January 2019 applies to the court for relief from the sanctions....." that leaves it pretty loose by my reckoning. Application can presumably be binned without any notice or if the application succeeds than the application does not give a reversal of the sanction but serves only for them to have the case considered. Or am I wrong in that?

Whichever way I word the objection relies on my full understanding of this presumption.