** WON ** MCOL Court Date - Advice about Witness Statement

[lucky13]

Hi

I am the claimant against a large gym chain that have failed to supply me with working gym equipment or an environment safe or comfortable to work out in

I have now been supplied with a court date for my MCOL claim, in the supplied literature it states "Each party must file with the court and serve on their opponent his/her witness statement."

So a couple of questions about this witness statement.

1) Due to the extended duration of the gym issues I have around 70 photos of failed gym facilities, how is it best to reference these in the statement, I don't want to only provide a small sample as it doesn't show the full magnitude or extended duration of the issues, I feel all the photos are relevant and would like to use them but would this come across as information overload ?

Could I for instance say in reference to the numerous failures of the air-con please see photos 1-30 for gym equipment failures please see photos 30 - 50


2) It also states I have to send all evidence to the opponent, can I just send it to the company head quarters without naming an individual person, in my original claim details I am suing the company but in a recent telephone mediation hearing ( where no negotiation was agreed upon ) a representative from the company attended.. do I now have to send all evidence to this company representative ?

3) Regarding postage do I need to send the evidence recorded delivery to my opponent and also to the local court the hearing is being held at ?

4) When attending the court hearing am I only allowed to read my witness statement and that is it, I cant verbally add anything else that isn't already in my witness statement ?

Many thanks

J

[pt2537]

Photographs will be exhibits, they should be in a bundle and clearly referenced within the statement

normally you would say at the early p[art of the statment

There is now produced and shown to me a bundle of documents marked AB1. Exhibit AB 1 contains copies of the photographs taken by me and which show the defective items.

You would go through at the start and exhibit each bundle of documents AB1 , 2, 3 etc, AB is the initials so replace with whatever your initials are

you would be able to refer and expand to them in the main body of your statement too. i would normally refer to them by page number. So for example i would say

At exhibit AB1 page 5 there is a picture of the treadmill, the treadmill is clearly on fire and cannot be used. it was abalaze every time i went to the Gym ......

Hopefully you get the drift

[pt2537]

2) It also states I have to send all evidence to the opponent, can I just send it to the company head quarters without naming an individual person, in my original claim details I am suing the company but in a recent telephone mediation hearing ( where no negotiation was agreed upon ) a representative from the company attended.. do I now have to send all evidence to this company representative ? you send to their address for service which is the address used on the Claim form or the address they gave you to serve papers

3) Regarding postage do I need to send the evidence recorded delivery to my opponent and also to the local court the hearing is being held at ? Worth doing to be sure you have proof of service

4) When attending the court hearing am I only allowed to read my witness statement and that is it, I cant verbally add anything else that isn't already in my witness statement ?

Your statement should cover all of the points you want to raise, you cannot raise issues which the opponent is not on notice of, that would be hijacking and is not allowed

......

[lucky13]

you send to their address for service which is the address used on the Claim form or the address they gave you to serve papers
......

Thanks for your feedback I really appreciate this

You mention I should send it to the address they gave you to serve papers ...I can't find any address given to me on my recent letter from the court it just lists the company name of the Defendant ..is there anyway I can view previous letters from the court as I have misplaced these during a house move.

The only other address I have is the one I initially used to submit the claim on the MCOL website which was the company head quarters.

Many thanks

[pt2537]

If you go to the Claim form, that will have the othersides address on it for service of documents, if they havent told you to send letters and docs elsewhere you can rely on that in my view

[lucky13]

Great thanks I have this info now...just one last question

I didn't realise when I started this claim that an eventual court hearing would cost an extra £55, so I didn't add this amount to the initial claim which I logged on the MCOL website, The way the capping worked was something like up to £300 it cost £25 to submit the claim and then £500 it cost £35 to submit, so I claimed the max I could which was £500 for a submission fee of £35

How do I now add the extra £55 for the hearing if I win the case ?

Can I amend the amount I'm claiming in my Witness Statement to £555 or do I have to stick to the initial claim when it was submitted and lose my £55 court hearing fee ?

Many thanks

[lucky13]

Can anyone advise on the above question ? thanks

[Amethyst]

When/if you win you ask for that hearing fee to be awarded as part of the costs. You are claiming £500. You then ask the court to award your costs, being the court fee £35, hearing fee £55, any statutory interest claimed/accrued, and also potentially ask for costs for attending the hearing ( travel, dayoff work etc ).

I am a little concerned about your claim being limited by the court fee sum - is the £500 what you would have claimed had cost of issuing have been no issue ? Is the £500 repayment of your gym fees paid for the service that you feel was not up to standard / provided etc ?

[pt2537]

Great thanks I have this info now...just one last question

I didn't realise when I started this claim that an eventual court hearing would cost an extra £55, so I didn't add this amount to the initial claim which I logged on the MCOL website, The way the capping worked was something like up to £300 it cost £25 to submit the claim and then £500 it cost £35 to submit, so I claimed the max I could which was £500 for a submission fee of £35

How do I now add the extra £55 for the hearing if I win the case ?

Can I amend the amount I'm claiming in my Witness Statement to £555 or do I have to stick to the initial claim when it was submitted and lose my £55 court hearing fee ?

Many thanks

The Court has powers to assess your costs so it can consider the costs once the Claim is determined, if you win you can ask the Court to order your costs to be paid by the otherside.

[lucky13]

Thanks for the help guys

One last very quick question as my hearing is in 2 days.

I have been supplied with the T&C's of my gym via the companies defence solicitor there is a clause that states:

"We have the right to increase, reduce or withdraw certain facilities, services or activities in any of our clubs either permanently or temporarily ( for example to carry out cleaning, repairs, maintenance or security work"


Does this mean I don't have a chance in winning as my complaint relates to many services or equipment is the gym being broken or faulty again and again sometimes for months at a time...

Does this clause mean they can literally supply me with terrible service and get away with it ?

Many thanks

[lucky13]

Can anyone help as my hearing is tomorrow... thanks

[Amethyst]

Has the other side quoted this clause in their witness statement as backing up their defence of the claim?

I don't think the clause would be seen as reasonable if they permanently closed all the equipment and activities thus stopping any service being provided for example, so it will be a matter of degrees and how much the issues you experienced actually stopped your use of the services.

[lucky13]

Thanks for your help guys, my hearing was on Friday and I won the case, the judge said I was an impressive witness and this is primarily thanks to all the great advice I received on this website, so a huge thank you to everyone who helped

If anyone's interested I defeated the companies unfair clause listed below

"We have the right to increase, reduce or withdraw certain facilities, services or activities in any of our clubs either permanently or temporarily ( for example to carry out cleaning, repairs, maintenance or security work"

by quoting the Consumer Rights Act 2015 Part 2 Section 62 Part 4

(4)A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.
"

The defence solicitor looked really shocked when I quoted this and I think really helped me win the case as I said they had been abusing this clause

[Amethyst]

Fab ! Well done for standing up for your rights and good call on the unfair term !

Did you get your hearing fee and costs? ( presumably you were claiming a full refund of all your membership fees as well? )

[R0b]

Thanks for your help guys, my hearing was on Friday and I won the case, the judge said I was an impressive witness and this is primarily thanks to all the great advice I received on this website, so a huge thank you to everyone who helped

If anyone's interested I defeated the companies unfair clause listed below

"We have the right to increase, reduce or withdraw certain facilities, services or activities in any of our clubs either permanently or temporarily ( for example to carry out cleaning, repairs, maintenance or security work"

by quoting the Consumer Rights Act 2015 Part 2 Section 62 Part 4

(4)A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.
"

The defence solicitor looked really shocked when I quoted this and I think really helped me win the case as I said they had been abusing this clause

Well done on winning your case, did you manage to get all of your costs back?

I am interested in your argument about the clause being unfair and it would help me and the rest of the forum readers if you could provide a summary of your argument on that point as to why it was unfair (I don't think you've given us the background or reason as to why you are claiming against the gym). Also any arguments by the gym's solicitor as to why it wasn't an unfair clause would also be of help.