Claim is stayed and will be struck out - incompetent judge!

[hume]

I have a claim against a college for a vocational course they failed me for.
The reasons they gave for failing me are entirely fictitous and I've tried to make the court aware of this by submitting a N244 form with the relevant arguments.

Today I went to a second allocation hearing (the first was in june) and my claim was stayed pending a claim from the defendant to have the claim struck out.
The original judge (at the first hearing) has retired and the judge today was a deputy who admitted he hadn't read the claim but was inclined to have it struck out!

I've amended this claim 4 times. twice under the direction of the judge and twice because of the CPR and court jurisdiction.

If as I suspect the claim is struck out, what grounds could I have the claim set aside?

The judge is allowing written evidence to support my claim before the next hearing. Should I use this to set out my position or rely on my PoC?

[teaboy2]

Re: Claim is stayed and will be struck out - incompetent judge!

So what your saying is you went on a vocational course and they failed you on the final exam that test your knowlegde and manual ability to carry out a specific job for which the course is for.

You say they fabricated the reason for you failing.

Sorry but am struggling to see how or why they would fabricate the results, unless their saying you never turned up enough to complete the course or something similar, when in fact you turned up every day.

There are thosuands of school leavers doing these courses every year for free (i assume you were the same) and there is also loads of them that do not complete the course or fail on the final exam simply because they were not good enough on the thoery side or the manual side to be deemed fit enough to pass let alone carry out work in the choosen proffession. i.e. a car mechanic - It simply would not be safe to pass someone not upto standards on theory or the manual side of the course as doing so could cost lifes if they made a mistake working on someones car.

Now am not saying your claim has no grounds for action, becuase i can not say that till we know what exactly the reason was they gave and why you dispute it - Though what i am saying is the college would not benefit from making up excuses to fail you and they do fail people all the time, but this is the frist time i heard of someone taking them to court. As their is no guarantee given by any college or course provider that you will pass.

So i will go with the basis that you do have grounds for action, assuming you turned up for all the lessons etc, and that you did well in the final exam and was failed by error or by reasons known only to the college etc

But the problem you will find here is that we can no give you the advice you need without knowing more about the case, what your claiming, and what the defence is.

As for setting side their claim to have your claim struck out well it would be unlikely and you may have to reissue the claim instead. But the judge had given you a lifeline, by allowing you to use written evidence to support your claim at the next hearing, so personally i would concentrate on that evidence and when at the hearing state your case clearly based of that evidence.

Too be honest you really should have come to us sooner prior to issuing the claim, then we could have given you much better advice on whether you had any chance of winning and helping you put the claim the together, but now it does look like you face losing and having to pay the colleges legal cost as a result. Though if its struck out then you might get away with it depending on if they make an order for costs against you.

I know its probably not what you wanted to hear, but its difficult to advise without knowing the ins and outs, though i do understand why you kept your post brief. And if it really is the case that the college fabricated the reason for failing you then i am definitely on your side, though your best course of action would have been to go for libel against the person that fabricated the reason for failing you as a successful win there would have forced the college to re-evaluate its position and whether to give you a pass on the course, or allow you to resit etc and/or whether to compensate you too.

Basically give us more details and we will beable to help you alot more than what we can based on what you have currently told us. Plus this forum section is only readable i believe by members so only members can access your posts in this section of the forum i believe, but i will check first and get back to confirm that for you.

EDIT

No its not one of the private sections so is viewable by the public. though if you ask one of the site team, am sure they can move it to a private registered members only area of the forum for you.

[hume]

Re: Claim is stayed and will be struck out - incompetent judge!

teaboy2, the course was a 4 day course which cost me over a £1,000. There was a theory test and a practical test. I was failed for the practical test. An analogy for the practical test is for person A to tie a string around 3 boxes and ask person B to move them to various locations. The college is claiming I didn't understand what was involved despite answering 64\65 technical question correctly to pass the theory test.
The college is a QUANGO. I went through it's complaint procedure and at every turn I was lied to. The inconsistencies are truly breathtaking. They have a manager who not only receives disputes but also appeals them! I was wondering if someone can take a look at my PoC and see if my claim is flawed.

[teaboy2]

Re: Claim is stayed and will be struck out - incompetent judge!

Morning Hume

Right, so basically what they are saying is that you did not understand what was involved, when it comes to tieing string round three boxes to hold them securely together and get person B to then move them round to different locations with out the 3 boxes coming loose kind of thing?

Since you paid money then there must have been a contract, what does the contract state about what recourse you have if you fail the course?

I now see why your suing them too, given the fact you paid for it and passed all but one question.

As for getting their claim set aside, i would argue that your claim is valid and has every chance of success, and their claim for strike out is just an underhand tactic that casts doubt on their own faith in their own defence being successful. As it is clearly an attempt to prevent the my claim and their defence being heard in court. I would use both the written evidence and your POC to set out you claim clearly too.

Something along those lines anyway. Whatever you do though do not bad word the judge you mentioned in your first post as judges tend to stick together.

[hume]

Re: Claim is stayed and will be struck out - incompetent judge!

the boxes are tied and moved individually. they aren't tied together! remember this is an analogy, although a good one.

I paid for the course over the phone, but I saw it online and there was no mention of re sits or anything of that nature. they haven't provided a contract. They say the course is regulated by a regulation of the Health and Safety Executive. I did try and contact them but unless someone was seriously injuried or had died they don't want to know.

written evidence would have to come in the form of a witness statement from myself. the college is loathed to provide me with anything other than some e-mails and a hurried investigation that basically said "move along nothing to see here. p.s. we're angels"

I'm relying on this and e-mails from the college.

[teaboy2]

Re: Claim is stayed and will be struck out - incompetent judge!

I see, so they saying you could not tie string round single box to secure it so it can be moved around and this is on three seperate boxes.

Yes the course would be regulated, but that doesn't impact on whether they pass or fail you, unless your completely unsafe at tieing string round boxes. And do not lift them in the proper manner. I.e. Back striaght bend knees.

The key here is by paying for the course then its clear there is a contract, so you need to get hold of their terms and conditions. If they do not have any, then the contract is unfair and likely in breach of the consumer protection from unfair trading regulations 2008 and unfair terms act 1999. There terms and conditions should have been made available to you prior to you making a decision. Bascially they have provided a service so it would fall under the sale or services act 1982 but am not certain due to it being a college, but if they are a private college and operate as a business then it should apply to them. Therefore making it a supply of service contract or sale of service contract etc - But i must admit am not a expert in this field. Hopefully others can confirm or clarfiy this.

Did you ask them prior to paying them, what would happen if you failed the course and what action you can take to remedy it? if so what did they say?

[hume]

Re: Claim is stayed and will be struck out - incompetent judge!

I did ask them what happens if I fail the course and they said I shouldn't, but they also said they didn't know in the event it did happen. Remember if you can read a newspaper you can be expected to pass this course.

In my particular of claim I cited the goods and services act 1982 and consumer protection from unfair trading 2008 3a.

The court for some reason can't understand the claim or think it doesn't have a solid foundation. The first judge was invited to strike the claim out but didn't once he started reading the claim. He did tell me however that the claim needed proper CPR. Hence me amending the claim again.

they aren't saying I couldn't tie the string, they are saying I couldn't communicate to person b where the boxes should be placed! You may think this is unbelievable, but unfortunately it's true.

[teaboy2]

Re: Claim is stayed and will be struck out - incompetent judge!

Right it sounds like the first judge thought your case had every chance of success with the recommended amendments. So i see no reason why your case should be struck out or why they are applying to strike out for a second time other than to use it as a way to avoid having to goto court where they know their defence would fail.

When at the next hearing make sure the judge reads the claim fully to fully understand it, before he make as decisions as to make a decisions when having not read and fully understood the claim would be highly unethical - though i must stress that is in my opinion only.

Basically they are claiming you failed because the person B couldn't understand your intructions. Who was person B - another person taking the course? did they pass of fail if they were - were they actually english themselves of foreign and therefore struggled to understand your instructions? SO bit more info on person B would be useful.

Not only that, failing you just because someone can not understand your intructions to put the box in marker 1 or on shelf 3 or in corner B or Skip A, is somewhat ridiculous. Its clear your a a person of a good level of intelligence just by going by what you have posted.

Another angle to consider would be misrepresentation of contract, i.e. their statement of if you can read a newspaper you can not fail is clearly misleading and therefore a misrepresentation. so you may wnat to look into misrepresention of contract and add that to your claim, as that would certainly put the nail in their coffin lol. Something to look at in regard to misrepresentation is consumer protection from unfair trading 2008 section 4 a and b

(4) A commercial practice is unfair if—
(a)it is a misleading action under the provisions of regulation 5;
(b)it is a misleading omission under the provisions of regulation 6;

Regulation 5 is

Misleading actions

5.—(1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3).
(2) A commercial practice satisfies the conditions of this paragraph—
(a)if it contains false information and is therefore untruthful in relation to any of the matters in paragraph (4) or if it or its overall presentation in any way deceives or is likely to deceive the average consumer in relation to any of the matters in that paragraph, even if the information is factually correct; and
(b)it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.
(3) A commercial practice satisfies the conditions of this paragraph if—
(a)it concerns any marketing of a product (including comparative advertising) which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor; or
(b)it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if—
(i)the trader indicates in a commercial practice that he is bound by that code of conduct, and
(ii)the commitment is firm and capable of being verified and is not aspirational,
and it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise, taking account of its factual context and of all its features and circumstances.
(4) The matters referred to in paragraph (2)(a) are—
(a)the existence or nature of the product;
(b)the main characteristics of the product (as defined in paragraph 5);
(c)the extent of the trader’s commitments;
(d)the motives for the commercial practice;
(e)the nature of the sales process;
(f)any statement or symbol relating to direct or indirect sponsorship or approval of the trader or the product;
(g)the price or the manner in which the price is calculated;
(h)the existence of a specific price advantage;
(i)the need for a service, part, replacement or repair;
(j)the nature, attributes and rights of the trader (as defined in paragraph 6);
(k)the consumer’s rights or the risks he may face.
(5) In paragraph (4)(b), the “main characteristics of the product” include—
(a)availability of the product;
(b)benefits of the product;
(c)risks of the product;
(d)execution of the product;
(e)composition of the product;
(f)accessories of the product;
(g)after-sale customer assistance concerning the product;
(h)the handling of complaints about the product;
(i)the method and date of manufacture of the product;
(j)the method and date of provision of the product;
(k)delivery of the product;
(l)fitness for purpose of the product;
(m)usage of the product;
(n)quantity of the product;
(o)specification of the product;
(p)geographical or commercial origin of the product;
(q)results to be expected from use of the product; and
(r)results and material features of tests or checks carried out on the product.
(6) In paragraph (4)(j), the “nature, attributes and rights” as far as concern the trader include the trader’s—
(a)identity;
(b)assets;
(c)qualifications;
(d)status;
(e)approval;
(f)affiliations or connections;
(g)ownership of industrial, commercial or intellectual property rights; and
(h)awards and distinctions.
(7) In paragraph (4)(k) “consumer’s rights” include rights the consumer may have under Part 5A of the Sale of Goods Act 1979(1) or Part 1B of the Supply of Goods and Services Act 1982(2).

Part 1B sales of goods and services act 1982 can be found here - Supply of Goods and Services Act 1982

[SpringerSpaniel]

Re: Claim is stayed and will be struck out - incompetent judge!

My comments which follow are about the legal remedies available to you and the relevant procedure, rather than the substance of your case:

- You can take the Court Service to Judicial Review on the grounds that your case was not decided in accordance with either natural justice or Art 6 Human Rights Act, the right ot a fair hearing - as it is not 'fair' that the judge made a decision when by his own admission he had not read the papers.

- You can also appeal decisions made in the County Court (or the High Court - but I imagine this is a County Court matter ?), or apply to have an Order set aside. If your claim is struck out, you can reinstate a fresh claim by filing a new claim form.

- You should in any case appear at the hearing of the Defendant's application for strike out, to resist this application. Write to the court informing it of your intention to do this.

[hume]

Re: Claim is stayed and will be struck out - incompetent judge!

Something i hadn't mentioned was that during the course i made a complaint about person b. my complaint was ignored by the college. legally, is the college compelled to act on a received compliant? The complaint was about person b deliberately putting boxes in the wrong place and ignoring instructions.
The defendant's soliticor has ignored this compliant in their defence. the compliant was a written one. sent in a email.

[teaboy2]

Re: Claim is stayed and will be struck out - incompetent judge!

Something i hadn't mentioned was that during the course i made a complaint about person b. my complaint was ignored by the college. legally, is the college compelled to act on a received compliant? The complaint was about person b deliberately putting boxes in the wrong place and ignoring instructions.
The defendant's soliticor has ignored this compliant in their defence. the compliant was a written one. sent in a email.

As far as am aware they have a duty to investigate all complaints made by a customer or client. All companies and Organizations should have a complaints procedure and complaints handling policy. Even if they say you must send in the complaint in writing, that includes electronic text (email). If they have failed to follow their or complaints procedure and handling policy then thats a breach of implied terms of the contract (or breach of written terms if there is any terms regarding complaints in the contract).

[hume]

Re: Claim is stayed and will be struck out - incompetent judge!

I had made a claim with the employment tribunal regarding this issue. The claim was out of time when I made it. I had enquired about bringing a claim last year but was told by the employment tribunal enquiry line that because I wasn't employed by the institution or sent by an employer, I didn't have grounds for a claim through the ET. Fast forward april 2011 and the district judge in the county court writes to inform me the court has no jurisdiction for discrimination. (I left this out of my original post as it tends to put posters off from commenting on my posts).

Today the ET judge reject an extension to the 3 month rule and threw my claim out. Even though the Respondent used the same defence in saying the tribunal had no jurisdiction due to the fact that I wasn't employed by the college. Although they did entertain the fact the ET could try the claim for other reasons.
I explained that I had spoken to trading standards, community legal advice, the parliamentary health and services ombudsman and none had suggested this claim should be heard in a ET.

The Employment Appeal Tribunal ruled in 'Defer - Wyatt v Williams and others' that a claimant who brought a claim out of time under the mistaken impression of the tribunal rules should have their time extended. the caveat is the reasonability of the false impression.

I want to know if I should appeal the decision on the grounds the law hasn't been applied correctly. I want to cite the fact the county court took 5 months to inform me of it's jurisdiction and none of the organisations I spoke with had representatives who were legally trained.

To paraphrase the judges comments is that he felt I should have found out about the jurisdiction while in contact with the aforementioned organisations.

[SpringerSpaniel]

Re: Claim is stayed and will be struck out - incompetent judge!

I am not clear why the Employment Tribunal would be relevant rather than the County Court eg for misrep, breach of contract etc ?

[hume]

Re: Claim is stayed and will be struck out - incompetent judge!

I am not clear why the Employment Tribunal would be relevant rather than the County Court eg for misrep, breach of contract etc ?

I just did a search and the full defer-wyatt v williams and others transcript. I have no grounds for appeal.

I will update this thread once I've been to the strike out hearing.

[teaboy2]

Re: Claim is stayed and will be struck out - incompetent judge!

This is court issue not, employment tribunal issue.

You should be making a claim to the courts (county courts) for their (the course providers) breach of contract and misrepresention.