Lynnzer - Patient Direct Court Claim

[R0b]

Yes, the court could refuse to admit the WS and your points are valid and you could also point out that their conduct is contrary to the overriding objective too. Whether a court would refuse to admit any witness statement I am not sure, as that's usually a draconian measure and you would have to give the court some good reason to do so - They would probably be more likely to adjourn the hearing with or without costs awarded against them) but if you are going to sit around and do nothing knowing that you don't have the WS then I also don't think the court would have much sympathy for you either.

If you've tried to contact them (maybe at least 2 in case they didn't receive the first letter) and requested a copy of the WS but they have ignored or refused to do so then you can point to that as a reason. You would be expected to take reasonable steps to ascertain the WS and that might be by contacting the court too who will have a record on file.

[Lynnzer]

Emailed PD and asked for a copy of the application. If they fail to send a copy of the WS then it would be good.
Also sent this to the court by email:
For the URGENT attention of the Court Manager

In respect of the above case, an Application for Strike Out was made based on numerous facts prior to the original case hearing date. Before my own application was considered, the court struck out the case itself for non payment of the hearing fee. This is subsequently being appealed against by the claimant and in fact a hearing date is accordingly being set in the near future.

I take issue with the fact that the claimant is being given an opportunity to claim relief from sanctions without the prior application for the case to be struck out being considered first.

My objections to the application for relief from sanctions included that fact. Any further hearing should first consider the Strike Out request already held on file and I believe that to allow a hearing for relief without prior consideration of the Strike Out request is not in accord to the overriding objectives of the court. Should the application find merit with the court then there would be no requirement for a hearing to address the relief from sanctions. It would not be in the interests of justice to deny the Strike Out application from being heard prior to a furtherance of other issues.

The Strike Out application was not a trivial matter as it includes many facts that are not rebutted by the claimant all of which stand to the good of the defendant. The Application even had video footage to prove non service of promised contractual advertising.

Please be so kind as to consider the lack of proper procedural application of matters already within the process that have not yet been addressed and attend to whether the claimant's relief from sanctions hearing is the right course of action when the extremely important Strike Out application is still outstanding.
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However, I'm wondering..... Is it even possible for the court to consider my strike out application while the case is not yet reinstated? As it stands the case is shut except for a hearing to reinstate it.

[Lynnzer]

Letter from court. They seem to have overlooked the Strike Out Application due to it being already struck out.
It has now been listed for hearing at the same time as the Relief from Sanctions hearing on 16th April at 10.00 am. That's a fair old drive from Blackpool to Middlesbrough to get there for then.

The court letter included a copy of my Strike Out Application submissions but were missing 2 pages. I know they were all sent to court so I wondered if PD had also been sent an incomplete copy. As a precautionary measure I emailed them a full copy, with the court on a bcc copy. I also referred to my previous email and asked them to acknowledge the contents. That was asking them for a copy of their case submissions to which they haven't responded as yet. I'm presuming they will forget to answer or ignore it anyway so a bcc copy to court will show my request for the documents. It all adds to my advantage if they persist in ignoring things.


Just to put all this together I attach a copy of my Strike Out Application submissions less the appendixes. Strike out application.pdf

[Lynnzer]

Letter from court. They seem to have overlooked the Strike Out Application due to it being already struck out.
It has now been listed for hearing at the same time as the Relief from Sanctions hearing on 16th April at 10.00 am. That's a fair old drive from Blackpool to Middlesbrough to get there for then.

The court letter included a copy of my Strike Out Application submissions but were missing 2 pages. I know they were all sent to court so I wondered if PD had also been sent an incomplete copy. As a precautionary measure I emailed them a full copy, with the court on a bcc copy. I also referred to my previous email and asked them to acknowledge the contents. That was asking them for a copy of their case submissions to which they haven't responded as yet. I'm presuming they will forget to answer or ignore it anyway so a bcc copy to court will show my request for the documents. It all adds to my advantage if they persist in ignoring things.


Just to put all this together I attach a copy of my Strike Out Application submissions less the appendixes. [ATTACH]n1447002[/ATTACH]

No response my request for a copy of their case submissions has been made. 2 requests with the court copied in on the 2nd email request.
I presume that gives a very good reason to have any witness statement they rely on, as well as their own case knocked out for lack of opportunity to consider a rebuttal on their stated case.
If the Judge allows it then would I have a right to ask for time to consider their documentation/witness statement and have the case re-listed with a wasted costs order.

[R0b]

It should put you in good standing to argue that you have been prejudiced by their failure to provide their witness statement and other supporting documents.

I think you would need tonsay what you want upfront. Rather than asking to strike out the statement and then asking again for an adjournment you need to say both together. So you are first seeking it to be struck out or alternatively an adjournment to consider their application in full. Failing either you could ask the court for your costs of the hearing based on their conduct and deliberate conduct of ignoring several requests of which there was no acknowledgment.

You can never guarantee anything in court scoworst case, dont assume you will get anything you've asked for. County Court judges are like a lottery.

[Lynnzer]

I had to visit Peterlee Hospital today for an X-Ray to my neck.
All screens switched off, and photo taken.
At the hearing I will produce picture of it along with the Google Maps location app to show that I was at the said location at that specific time.
Still haven't heard anything from PD in response to my request for details of the witness statement and the documents or things they will rely on at the hearing. I'm please I cc'd the court into my last request. They can't say it wasn't sent.

[Lynnzer]

Well guys 'n gals. Everything came together nicely for the hearing today. Fist off they didn't show up so their application for relief was dismissed and the judge had looked over my strike off application and said he'd rule that it was also allowed in my favour.
Then onto costs. He said he'd award me the Strike Off fee but couldn't see a way to go beyond that as it was a small claims court. I reminded him of the various points of law regarding LIP costs, and then the punitive element for vexatious behaviour and compensatory awards for mental anguish along the way. I had a witness statement from someone else who was in court 13 days ago at Blackpool and who won due the forged signature. So he read my full costs submission and told me he was awarding the full amount £3157.
Will update my own website in due course to assist those other people who have come forward from being scammed.
Thanks for your help along the way, to each and every one of you.

[Amethyst]

Nice work Lynnzer ! Well done, you have put a lot of work into this which will hopefully go on to help others too xx

[R0b]

Congratulations on the win.

Maybe I have missed something but wasn't this an interim application (relief from sanction application) rather than a trial assigned to the small claims track? If so, not sure how the judge is able say the hearing was subject to the small claims rules. It has always been the case that interim hearings are subject to the usual rules on cost.

Either way, you got what you wanted so that's a result. Would be interested to see your arguments/points on the unreasonable conduct costs.

[Lynnzer]

Congratulations on the win.
Maybe I have missed something but wasn't this an interim application (relief from sanction application) rather than a trial assigned to the small claims track? If so, not sure how the judge is able say the hearing was subject to the small claims rules. It has always been the case that interim hearings are subject to the usual rules on cost.
Either way, you got what you wanted so that's a result. Would be interested to see your arguments/points on the unreasonable conduct costs.

It was the application for relief, PLUS the forgotten about Strike Out application that was submitted prior to the court striking it out on their own terms for non payment of court fees. So I was left wondering if a judge could strike out a case before hearing the relief application as it was still struck out at that point. Seemed to me that if the judge dismissed the relief application he had no need to consider the overdue strike out application anyway but he had read my submissions and said he would mark it as allowed. Don't know whether he can make a dual dismissal on record but I guess the Order will show what he has exactly put. He totally accepted my Strike Out submissions anyway. I would like the Order to state that reason for this as it can serve as a precedent in other cases.
The Costs application is attached. I thought for a brief moment I wasn't getting anything except the Strike Out application fee. I fortunately brushed up on the award of punitive and compensatory costs first thing this morning.
I reminded him that if the costs were thought to be excessive then PD had a right to appeal them anyway so he agreed and let them go.
My costs presentation had been shown to a couple of people who said I hadn't a snowball's chance in hell of getting them, one of them a barrister, who assisted the case 13 days ago as a friend of the defendant and was denied any costs at all over in Blackpool. The judge asked what costs were awarded in that case and I told him none at all but that was due to the late submission of evidence by the defendant and in our case early notification of all the evidential stuff had taken place. Lesson to be learnt then. Present all the evidence you have as early as possible, and then put a considered costs application together. I guess I was somewhat fortunate as he had time to read through my costs claim in full before finally deciding. Costs claim.pdf

[Lynnzer]

Couple of questions.
1st is do they have any appeal rights for the costs award.
2nd is the process for passing to bailiffs for non payment

[R0b]

Just briefly going back to your previous post, since the hearing related to relief from sanctions / strike out, they are considered to be interim hearings i.e. matters of procedure and preliminary decisions rather than a trial hearing which hears the facts and evidence and then a judgment is made. I can't see how the applications were allocated to the small claims track so I stand by my point that the normal costs rules apply under Part 44 (as they have always done).

I think on reading your costs application, I would have to say I am surprised that the judge awarded punitive damages because there is authority to say they are limited to certain categories (the case of Rookes v Barnard springs to mind) and should not be awarded generally, particularly breach of contract. That said, judges make decisions based on the evidence presented before them and without any representation from the other side, the only evidence that the judge could go off is what you presented.

In answer to the questions:

1. Yes they will have the right to submit an appeal on the costs only side of things, and they will need to seek permission from the court. I don't think they could argue on some of the costs, but there's probably good grounds for having the £2,000 punitive damages removed. It may have been more reasonable to claim aggravated damages instead of punitive but thinking back, I don't think you can claim aggravated damages for breach of contract either.

2. Generally, the easiest method is to use bailliffs to enforce the judgment and have it passed up to the High Court so they can attend the business address. I'm sure ploddertom can assist on that.

[Lynnzer]

Just briefly going back to your previous post, since the hearing related to relief from sanctions / strike out, they are considered to be interim hearings i.e. matters of procedure and preliminary decisions rather than a trial hearing which hears the facts and evidence and then a judgment is made. I can't see how the applications were allocated to the small claims track so I stand by my point that the normal costs rules apply under Part 44 (as they have always done).

I may have misinterpreted the judges findings but he did say he denied the relief from sanctions then topped it off with commenting on the strike out.
He seems somewhat unsure of his need to look at the case as his first words were, "well I see this is already struck off. Do you wish it to be reinstated?"
Had to point him to the relief being applied for by PD and as far as I was concerned I didn't want them getting that relief. So he denied that application at that point. He then went on to my own Strike Out application. He said that he didn't need to consider it as the case was already dead beyond repair but I pressed him on it to the extent that his agreement of the submitted application would set at least some minor precedent for any other cases by this company. He agreed and said he would include mention in his findings. Will need to wait and see I suppose.

I just wonder if the Strike Out application would pass as a "trial hearing" as per small claims procedure.

I think on reading your costs application, I would have to say I am surprised that the judge awarded punitive damages because there is authority to say they are limited to certain categories (the case of Rookes v Barnard springs to mind) and should not be awarded generally, particularly breach of contract. That said, judges make decisions based on the evidence presented before them and without any representation from the other side, the only evidence that the judge could go off is what you presented.

I really can't comment on CPR 44 as I don't have time to read and digest. However he said that he was only inclined to pay costs for my strike out application. I reminded him that as a LIP I was under the impression that he was authorised to award the going solicitor rate. He agreed. I also took him onto the punitive element and watered it down verbally saying it incorporated some element of compensation for the stress and heartache along the way. He said he doubted very much if we would get payment but I said that was not important and it was up to them to appeal if they thought it unreasonable. So he let it all through.

He may well get overruled if it goes to appeal but hey.... not a bad result even if it's short lived. The case is dead. Great.

On another front, these sods aren't taking me the way they did without retribution. I am looking at starting a legal complaint against them. The judge said he could refer the case to the police for fraudulent signature and fraudulent representation but it would be better to do it myself and include other companies onto it that have been scammed too.
I'm considering the best way to do this. I think the police's response would be "this is a civil matter" so I may try and get Trading Standards onto it instead by quoting the Federal Court case in Australia.

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More thoughts on costs.
When they applied for relief from sanctions the order was them to submit their case for hearing on or before 13th January I believe. The Order went on to say that failing that a hearing for costs would be allowed. Guess that would apply here.
Found it. post #22

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Have slept on things and I can remember the judge saying words such as vexatious so he may well have awarded costs on that basis.

[Lynnzer]

Just a bump regarding my last edited inserts

[ploddertom]

As the sum involved is for over £600 then you can transfer it up to the High Court for enforcement once you have received the paperwork. See https://thesheriffsoffice.com/instruct-us for more details.

If you go this route then be prepared for the Defendant applying for Set Aside because they didn't attend - tough in my opinion as surely they must have known as it was their case. I imagine as they didn't turn up then their application would fail. They may also try for a Stay of Execution against the Writ used for Enforcement but again think that would fail as well.