And suddenly there was a defence...

[Kati]

Re: And suddenly there was a defence...

Is this the same 'company' as your discrimination thread??

If you've already had a decision/judgement ... how can they get you to discontinue (it's over and done with) :noidea:?? Wouldn't they have to apply (and pay) for a set-aside??

[EXC]

Re: And suddenly there was a defence...

Hi Kati,

A brief synopsis as follows:

• Served pre-action letter on other side - no response to that and follow-up letter granting more time to respond.
• Felt I had no choice to play my hand so issued claim(s).
• Defendant had until 2 February to file defence - they defaulted (still no sign of a defence).
• I applied for a default judgment and got one.
• On 16 March (shortly after being awarded the judgment) the other side seemed to miraculously spring to life and sent the court a notice of representation.
• Around a week ago they then sent me a letter asserting they will apply for costs if I do not 'discontinue'.
• Today they made an application to strike out the claim by way of a hearing and applied to abandon the Judgment Hearing of 29 March (still no defence filed).

Hope that helps.

I think what Kati meant is what the case is about.

[heisenberg]

Re: And suddenly there was a defence...

Is this the same 'company' as your discrimination thread??

If you've already had a decision/judgement ... how can they get you to discontinue (it's over and done with) :noidea:?? Wouldn't they have to apply (and pay) for a set-aside??

Which thread (I have had a few)? :tinysmile_grin_t:

I think they want me and the court just to 'forget' about the whole thing. Indeed, a bit late in the day.

What makes their cheekiness even worse is that they make this application knowing they have not responded to any pre-action letter or filed a defence. They also know I have severe mental health problems. So, what the appear to be doing is trying to ambush me with arguments, by way of a barrister, should the Judge grant them their 2 hour strike out hearing. Much fairness there do you think?

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I think what Kati meant is what the case is about.

Is that correct Kati? I think post #98 is a brief summary (and post #108 too).

[Kati]

Re: And suddenly there was a defence...

Is that correct Kati? I think post #98 is a brief summary (and post #108 too).

These??

Background

I sought assistance from a psychotherapist in respect to my mental health condition (the disability). The disability essentially significantly impedes my overall mental health.

This psychotherapist in question denied me a service which I believe to be for unethical reasons (discrimination). This person also shared confidential information he should not have shared.

It is accepted by the psychotherapist's employer (the NHS) that this person acted in a manner well below that that was reasonably expected generally and that confidential information should not have been shared. The PHSO made a similar finding and recommend financial compensation.

I raised a concern with the psychotherapist's professional body (the Defendant) who he is registered with (before the paragraph above facts arose). They have the powers to strike him off their register or issue a warning.

I complained of a) discrimination b) wrongful sharing of confidential information and c) dishonesty once I had seen the initial response from the psychotherapist in respect to complaints (a) and (b).

In this case of (a) above they would not even process my complaint beyond the most initial stage(s). They simply averred that "we do not consider that the evidence you have provided demonstrates a reasonable prospect of success".

It has become evident that they did not process complaints (b) and/or (c) correctly or at all (having seen a recent report published by the Professional Standards Authority and relative discussions with Professional Standards Authority before this was published).

I remain unclear on why all complaints were not progressed correctly or at all. In the case of complaint (a) I remain exceptionally unclear on what the substantive reasons were . I made significant attempts to gain clarity and none has been forthcoming.

The Defendant is seemingly obliged (although this is not clear) to provide a little more rationale than that to assist me in drafting a fresh complaint if I so do deem necessary.

The Professional Standards Authority, who oversee this organisation in terms of professional standards, has recently made it clear that the limited wording used was insufficient and difficult to comprehend. They also have made it clear to me that this overall decision-making was not sound nor fair.

The Defendant refused to engage further (in respect to this matter as whole and, seemingly, as a consequence of me requesting further information) and has caused me prejudice in regards to processing my complaints appropriately and caused me further prejudice by not assisting me in understanding the full reasons underlying the decision not to progress the complaints. I made the Defendant abundantly aware of my mental health so it is aware that I have/had problems in this regard.

The Claims

The Equality Act 2010 makes it unlawful to knowingly assist another person discriminate (section 112). On the face of it, the Defendant is making every effort to assist the psychotherapist in question. Other organisations have relied on the Defendant's 'findings'.

The Defendant also has/had a duty to make reasonable adjustments. In the event that it is standard practice (though this remains unclear notwithstanding complaints to the Defendant in this regard) for the Defendant to simply assert "no prospects" in response to a series of complaints then I aver that they would need to offer more comprehensive reasoning in these circumstances. Such a request was not unreasonable and something the Defendant could easily have done to facilitate the adverse effects of my disability (unless of course it had something to hide).

Section 19 (indirect discrimination) is also called into question for the above reasons.

It is further evident that I have been treated poorly. The question arises is this the normal manner in which the Defendant treats all complainants (section 13).

By virtue of the Defendant's refusal to engage with me at all in regards to this matter have I been treated unfavourably? The answer has to be yes. I am unable to draft another complaint appropriately and it seem the Defendant is refusing to deal with any further correspondence in any event. Section 15 (discrimination arising from disability) is therefore called into question.

Have I also been victimised (section 27) due to asserting that I am disabled person and that I need further assistance? I believe I have suffered at least one detriment as set out above.

Wowser! Easy tiger!

You have not defined your disability as how it affects you as mental health problems could simply be anything from anxiety to a tremendously acute nervosa, to depression, to suicidal propensities. What is your disability and what medical evidence do you posses to confirm such disability?

The disability is major clinical depression. I have medical evidence in the form of clinical reports.

What service were you deprived of? What service, in your expectation, do you think you should have got and why?

Psychotherapy as there are no other options. The Trust conceded to a failure in this respect and referred me to a different psychotherapist.

If you have received compensation for the alleged misconduct, why do you think the courts will award you anymore?

I am entitled to seek redress through both the PHSO and the court.

What is the discrimination type, why do you think you were discriminated against if you're considered to have a disability? What type of confidential information about you was 'wrongfully shared', with whom. In short could this sharing of information identify you to a third party in that you were made vulnerable to such sharing? I am asking was it trivial information, or was it substantial? You say, dishonesty, what did the psychotherapist do to put you on alert or to make you think that the actions of said professional were dishonest, or more broadly considered 'dishonest' by whose standards?

Direct discrimination and discrimination arising from a disability.

Sensitive information was shared with my GP. It was by no means trivial.

The psychotherapist was less than truthful in defending the complaint(s) against him. Had the Defendant been more engaging I would have detailed this more clearly.

What evidence did you present and why wouldn't they think it would have that prospect?

This is a key point. I presented evidence that there were issues in the manner the psychotherapist approached my case (enough for a realistic prospect of success). The question of why my complaint(s) was/were not progressed is a point that they have not elaborated on and they have failed to respond to the pre-action letters and e-mails. They have also failed to serve a defence so far.

Now this is an important issue - and this should have been included in your submissions to the court, and not just in your witness statement.

Indeed I have.

When you say the defendant, it's not known whether you mean the NHS collectively or the psychotherapist individually, I hope you have addressed this in your witness statement. You seem to be a reasonably educated person to me, able to converse with many person regardless of their education type and professional experiences. What was so perplexing about the NHS' dialogue, communication to you, that you believed it prejudiced your right to a fair hearing possibly, more importantly, are you saying prejudiced by the NHS collectively or any submissions from the individual psychotherapist or their immediate line-manager?

The Defendant is the psychotherapist's professional body (not the NHS). Witness statement are jumping ahead slightly. There is no response to the pre-action letter or any sign of a defence.

What in your view is 'knowingly assist another to discriminate? Well, if you're trying to sue the defendant (the psychotherapist), as they're their employer I think this should be common sense.

The Defendant is the psychotherapist's professional body (not the NHS). They are abundantly aware that there actions (or lack thereof) could be assisting this person.

What in your view in a reasonable adjustment that also in your view you expect either said individual or the NHS collectively to make? You are not being clear as to the whomever you're referring to. Stop talking like a lawyer and make yourself clear - your statements are just too vague.

The Defendant is the psychotherapist's professional body (not the NHS). Quite simple - decision making rationale and all documents. facts and matters relied upon in making the decision. This was not a lot to ask for.

How is it called into question, what in your view constitutes indirect discrimination and more importantly, why do you believe you were indirectly discriminated against?

How am I to draft a fresh complaint if a) I do not have the foggiest idea as to why complaint was not progressed and b) I have a debilitating mental health condition that effects my abilities in this respect?

How is it further evident, as though this were an addition to the previous treatment. Poorly treated, how, by whom?

Anyone with half a brain would come to the conclusion that I have been treated poorly here. The Defendant has seemingly overlooked complaints completely and been inconsistent in its explanation as to why the first complaint was deemed to have "no prospects". As a result of reasonably trying to get clarity (as suggested by the PSA) I have then told by the Defendant that it will engage no more. Does this sound like anything other than poor treatment?

Which defendant? Why do you believe that this is tantamount to 'treated unfavourably?'

There is only one Defendant. As above, if I did not have the disability I would not have requested further clarity. As a result of my requests for further clarity I have been denied a service.

How have you been victimised, what further assistance did you require, why did you require it? Oh so you're saying you have suffered at least one, which implies that you do not know what discrimination means and are just making guesses.

I asked for further clarity. I informed the Defendant of the relevance of section 15. I was immediately denied a service. I am familiar with discrimination principles.

so ...

• you took the physotherapist (or the NHS) to court for discrimination??
• They did not respond to the court claim, so you got a default judgement??
• They have NOW responded, and want you to "discontinue" the claim??

[heisenberg]

Re: And suddenly there was a defence...

These??


so ...

• you took the psychotherapist (or the NHS) to court for discrimination??
• They did not respond to the court claim, so you got a default judgement??
• They have NOW responded, and want you to "discontinue" the claim??

You took the psychotherapist (or the NHS) to court for discrimination?

Nope, I took the Psychotherapist's accreditor to court. He is employed by the NHS but it seems the accreditor bent over backwards for him and thereby significantly damaging the prospects of success in terms of any claim against the NHS. Any such claim against the NHS now would be arguably out of time.

They did not respond to the court claim, so you got a default judgement?

Yep.

They have NOW responded, and want you to "discontinue" the claim?

They haven't filed a defence so strictly speaking they have not responded.

[mariefab]

Re: And suddenly there was a defence...

I know very little about CPR but is it even appropriate to seek to have a default judgement set aside by the use of 3.4 (2)?
I would have thought the time to raise deficiencies in the particulars of claim would be before the judgement, not 4 weeks after.

[heisenberg]

Re: And suddenly there was a defence...

I know very little about CPR but is it even appropriate to seek to have a default judgement set aside by the use of 3.4 (2)?
I would have thought the time to raise deficiencies in the particulars of claim would be before the judgement, not 4 weeks after.

Through some application of common sense I would agree with you. They appear to be jumping the gun a bit here though it does seem possible that the CPR allows for it. If they can argue the case has no prospects it would appear they are doing the same thing as applying for the judgment to be set aside. What concerns me is that they would normally need to file a defence first I would have thought (i.e. allowing the parties to be on an equal footing - see Rule 1.1(2)(a)).

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Also appears as though they could possibly be trying to bypass the case law in terms of applying to set aside the judgment after their client made a real mess of things.

[mariefab]

Re: And suddenly there was a defence...

12.3 (3)(a)(i) appears to confirm that 3.4 should be used before judgement.

https://www.justice.gov.uk/courts/pr...es/part12#12.3

[heisenberg]

Re: And suddenly there was a defence...

12.3 (3)(a)(i) appears to confirm that 3.4 should be used before judgement.

https://www.justice.gov.uk/courts/pr...es/part12#12.3

Does that mean it is too late for a strike out application or that the default judgment automatically disappears if they are successful in a strike out application?

Hardly clear that wording...

[heisenberg]

Re: And suddenly there was a defence...

They may well argue that they are entitled to make the strike out application to save 'disproportionate and unnecessary expense'. I am not sure where that leaves me in terms of being on an equal footing.

[mariefab]

Re: And suddenly there was a defence...

My understanding of 12.3(3)(a)(i) is that although you can file a request for a default judgement (when the defendant has failed to acknowledge or defend your claim within the relevant time limit); you won't obtain the requested default judgement if the defendant has applied to have your statement of case struck out under 3.4.

[heisenberg]

Re: And suddenly there was a defence...

My understanding of 12.3(3)(a)(i) is that although you can file a request for a default judgement (when the defendant has failed to acknowledge or defend your claim within the relevant time limit); you won't obtain the requested default judgement if the defendant has applied to have your statement of case struck out under 3.4.

Hmmm... I would have thought that would mean that you can't apply for a default judgment at the same time as the other side has applied to strike out the claim. In my case the circumstances are different - they didn't lift a finger so I got a default judgment.

[mariefab]

Re: And suddenly there was a defence...

What I'm saying at is that an application under CPR 3.4(2)(a) prevents the Court from issuing a default judgement in the first place.
So, I don't see how they can use 3.4(2)(a) at this point. (4 weeks after the default judgement was issued.)

Does the defendant have access to a Tardis?

[heisenberg]

Re: And suddenly there was a defence...

What I'm saying at is that an application under CPR 3.4(2)(a) prevents the Court from issuing a default judgement in the first place.
So, I don't see how they can use 3.4(2)(a) at this point. (4 weeks after the default judgement was issued.)

Hmmm... I don't think the case goes before a Judge when a default judgment is issued. I think it is just a rubber-stamping type exercise but I may be wrong?

Does the defendant have access to a Tardis?

msl:

[heisenberg]

Re: And suddenly there was a defence...

I take it that because they failed to respond to the letter before action and file a defence there will be little chance of them successfully applying for costs in the event the strike out Order is granted?