Lowell Portfolio I Ltd v dasher13

[R0b]

Re: Lowell Portfolio I Ltd v dasher13

Well, the problem is that there are no documents which have been supplied so there is no ground or reasoning to come to any settlement if there is no proof that the debt is owed/exists by the Claimant. I am aware that the mediation team can be a bit awkward and annoyed saying its a waste of time and that mediation slots are limited, if there is no documents that enables you to enter into some kind of settlement, then mediation shouldn't be selected.

It would be a different story if you did have the documents to agree mediation but in this case it would be a waste of time. The decision is Dasher's of course.

[MIKE770]

Re: Lowell Portfolio I Ltd v dasher13

all mediation will ask have you the document to proceed> if not they will inform you mediation cannot take place and refer back to the court for the next stage, you will have shown reasonable willingness to mediate but cannot without due & proper infiormation

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Thank you all so much for helping.

Just looking at the forms - Directs questionnaire (Small Claims Track) N180- can I just confirm that on the first page at the top I put my name and that I am the 1st Defendant? (top left of the form)

Then on the top right I put "in the"...County Court Hearing Centre ?? and then the claim number?

I appreciate that it may be daft to ask but don't want to get it wrong!

So I think I am right in saying that I do not want to appear to be refusing mediation because I do not want to do it - but because I cannot do it as Lowell have provided no documentation whatsoever?

So if I tick "yes" that I agree for this case to be referred to the Small Claims Mediation Service does that mean that at some point in the future I can then say "I will enter mediation once Lowell have provided documents as how can we come to any agreement when I do not have the necessary evidence/documents to examine that will allow me to understand my position and if this is my debt"...? Or is it better to tick "no" as Lowell have not provided the documents - if so where do I explain why I am ticking "no"?

The form then asks whether I agree that the small claims track is the most appropriate track. Do I?? (I am sorry if I sound stupid)

The section on the "hearing" - I guess the venue is my nearest one, the one listed as my local one on the letter that came with the forms.

As for the rest I have no idea - do I want ask permission to use written evidence? Will I have witnesses? Is it just me??

There does not appear an option to include a covering letter. If there was I would explain that I require the documents from Lowell which they have referred to and used to bring the claim.

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Sorry also I read about putting the claimant to strict proof of their claim - is this something I can/should do?

R0b has warned me before about basically confusing things (and myself!) but thought I would ask.

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Hello again - is anyone able to please help with the above? I only have a few days to submit the forms and dont want to get them wrong.

Thank you again.

[MIKE770]

Re: Lowell Portfolio I Ltd v dasher13

[MENTION=87380]Diana M[/MENTION]

[Amethyst]

Re: Lowell Portfolio I Ltd v dasher13

So I think I am right in saying that I do not want to appear to be refusing mediation because I do not want to do it - but because I cannot do it as Lowell have provided no documentation whatsoever?

So if I tick "yes" that I agree for this case to be referred to the Small Claims Mediation Service does that mean that at some point in the future I can then say "I will enter mediation once Lowell have provided documents as how can we come to any agreement when I do not have the necessary evidence/documents to examine that will allow me to understand my position and if this is my debt"...?

YES Basically when the Mediation Lady rings you up she'll ask you if you have all the docs, you say no, she'll say oh well, and that'll be that ... sometimes they send you a form to tick boxes on instead of ringing you - so on there you can just put that the claimant hasn't supplied any documentation evidencing their claim.....

soo........

Directions Questionnaire

In the Northampton CCBC
Your claim number

To be completed by ... your name ... then circle Defendant

A - tick YES
B- your contact info
C- Yes
D - put your local county court name - you don't have to put a reason but 'as I am a litigant in person' works fine.
D2 - no
D3 - 1 ( ie. just you)
D4 - just put any holiday dates in
Interpreter - No ( presumably)


SIGN & DATE


Then send copy to the court AND to the claimants.

[R0b]

Re: Lowell Portfolio I Ltd v dasher13

Whilst I don't normally disagree with Ame on things, I have to disagree on this point. It is a waste of time ticking the box for mediation when you don't have any documents, and I think there just needs to be some common sense.

Depending on availability your not going to get an appointment for 2-3 weeks maybe longer and then all your going to do is say you don't have the documents so medication can't take place.

So in reality, you have no intention of agreeing to mediation because there's no documents and your wasting a mediation slot for someone who might be better suited. On top of that it delays your court hearing by a couple of months as well, and doesn't really help co-operate with the overriding objective either in that it's more expense, or expeditiously. The guidance note that you get sent with the pack also reiterates that without enough information or documentation then the case is not suitable.

Obviously go with whatever you feel, but I think it's a waste of time in your case

[Amethyst]

Re: Lowell Portfolio I Ltd v dasher13

I don't mind you disagreeing with me Rob, my thinking is that if the documents show up between returning the DQ and the mediation appt it can be useful to have that stop gap in there, if it gets to hearing and the Judge is narky and reads that the claimant were willing to mediate and the defendant wasn't, it could colour his views, the tick box list usually puts paid to mediation anyway and it does point out that the defendant was willing to mediate but was unable to due to the claimants inability to provide any evidence on which to mediate.

Big picture wise (in my cuckoo cloud bubble anyway) the Courts are bound to get pee'd off eventually with all these failed mediation appts in cases involving the usual suspects.

[R0b]

Re: Lowell Portfolio I Ltd v dasher13

I do understand, but as we know all judges are different and come a various angles, what I said above was almost verbatim of what a judge said to me in court a few weeks ago, in fact he even went as far as deducting £100 costs for wasting time and the claim was dismissed without any argument because of the lack of evidence. Whether he could do that or not I don't know and wasn't challenged because the end goal was just a dismissal.

Sometimes the judges are only told that mediation has failed rather than the reason why it failed, because of course you can't discuss mediation.

if the documents are not provided at the time when the DQ is filed, that ought to be a good enough reason why mediation is not suitable, couple that with the lack of pleadings and you can't mediate something which no evidence has been supplied. It goes back to the Nomura v Granada case I've mentioned a few times, claimants cant just issue proceedings on a whim without evidence to back it up and then hope at some point during the course of proceedings something does turn up as that amounts to an abuse of process.

Obviously no real harm in ticking the box, just means it causes an unnecessary delay to proceedings.

[Diana M]

Re: Lowell Portfolio I Ltd v dasher13

what I said above was almost verbatim of what a judge said to me in court a few weeks ago, in fact he even went as far as deducting £100 costs for wasting time

Why did the DJ sanction your client (deducted £100 costs claimed/ordered) for agreeing to but then failing to go ahead with Mediation so wasting court time when (a) the contents of a Mediation session are strictly confidential so the DJ should not have known which party (Claimant or Defendant) "failed", or why it didn't go ahead (such as lack of documents) and (b) the Mediation service have a 28 day window to set up a Mediation by which time the paperwork may turn up so showing willingness to Mediate can only be a positive sign, and (c) Mediation is only available in the Small Claims Court where costs are not normally awarded except indemnity costs?

Added to that, how would willingness to attempt or failing Mediation be considered a waste of the court's time?

All that would have happened was the hearing would be listed a month later in the diary. No hearing would have been listed prior to Mediation so no DJ would have been left twiddling their thumbs for an hour until the next hearing. In fact hearings are often block blocked for 10.30 am or 2 pm and even overbooked in the hope that some will settle/adjourn/vacate before the date.

In fact in one case I was called the afternoon before a Fast Track trial to be told that it was re-listed because no DJ was available due to overbooking.

Di

[R0b]

Re: Lowell Portfolio I Ltd v dasher13

I don't know why he sanctioned, he did have a little rant but he was sort of alluding to the fact that the documents ought to have been in the claimant's possession at the time off issuing the claim, and how can there be a willingness to mediate if the claimant doesn't have any documents it has referred and in turn doesn't show that the Defendant isn't liable for the things stated in the claim. He appeared to be very clued up on claimants and their claims being brought with a lack of evidence so I don't know. He did restate a number of times there should be a common sense approach and the reason we agreed to mediation was that we did not want to be seen as unreasonably refusing to mediate, yet the DJ thought that it was a wasted appointment to agree to mediation and then say a couple of words which means mediation could not have taken place.

As for confidentiality, I've come across this a few times and I think the DJ was thinking along the lines that mediation is without prejudice save as to costs. The £100 sanction was pennies to the client so it was not worth the hassle and argument, perhaps we caught him on an off day.

Anyway, I do agree with some of his comments in that it is a waste of time and there is no need to agree to mediation on the off chance that documents might show up, it should be based on at the time, do you have the documents you need to enter into mediation. I think its perfectly reasonable to refuse mediation on the grounds that the the claimant has failed to provide documents when expressly requested on a number of occasions.

[nemesis45]

Re: Lowell Portfolio I Ltd v dasher13

As I understand it nothing regarding what is discussed in HMCTS Small Claims Mediation can be used in court including reasons for mediation not taking place, successful mediation usually results in a Consent (Tomlin Order) which states only that which has been agreed between the parties nothing in regards to how said agreement was reached.

IMO it is wise o agree to mediation even if the " paperwork " is deficient as [MENTION=6]Amethyst[/MENTION] has said the late disclosure of documents can be a problem.

nem

[MIKE770]

Re: Lowell Portfolio I Ltd v dasher13

as most if not all solicitors etc probably will tell you, it is succession to saving courts time if can be seen to be an attempt to settle without due procedure within a court room , in fact would seem to be common sense, the outcome of which would show ignorance or failure to attempt to settle without engaging a DJ, and save as to sanctions for either ignorance to try and sort or attempt to intimidate defendant!

[Diana M]

Re: Lowell Portfolio I Ltd v dasher13

It's also a misconception that Mediation is based on the Defendant opening their cheque book. Mediation is there to attempt to settle the dispute which may not involve any payment of money.

I'm aware of one Mediation settlement where the "offer" made by the Defendant was that the Claiment agree to Discontinue the proceedings on a drop hands basis (i.e. each party absorbs their own legal costs).

The Claimant accepted the "offer" because they knew they had no hope of winning with an irredeemably unenforceable agreement which they had produced.

Even though this was a Small Claims Court case, the Claimant was fully aware that they could be ordered to pay the other side's legal costs on an indemnity basis so presumably made a commercial decision to bring matters to a halt sooner rather than later.

Di