Boater With Home Mooring - Court Action Started.

[kris88]

Is this your new friendlier way of having ago at Tony?

[Alan de Enfield]

I think the crux of the matter is more that they didn't have any of Tony's paperwork.

Isn't the crux of the matter in fact, that the court did have Tony's paperwork (and he has a receipt to say so) but they have now 'lost it'

[gaggle]

I think the crux of the matter is more that they didn't have any of Tony's paperwork.

Written acknowledgement has been given they received it so they do have it , do you have to continue being your usual self ? can you not try and stop being a pest ,

[Naughty Cal]

Is this your new friendlier way of having ago at Tony?

Could you point out where I have "had a go?"

 

The court have given Tony an extra three weeks to get his paperwork in order which I think is quite fair. Don't you?

Written acknowledgement has been given they received it so they do have it , do you have to continue being your usual self ? can you not try and stop being a pest ,

In which case Tony can provide it, should he so wish, at his next court hearing in three weeks.

 

Shouldn't be a problem.

[cariad]

It could be a big problem if he hasn't had them duplicated and the original paperwork can't be found.

[Jerra]

It could be a big problem if he hasn't had them duplicated and the original paperwork can't be found.

Surely in this day and age nobody sends anything off without keeping a duplicate. Do they?

[Naughty Cal]

Surely in this day and age nobody sends anything off without keeping a duplicate. Do they?

You wouldn't think so, especially with something as important as court paperwork.

[Tony Dunkley]

Tony the situation you find yourself in is to my mind the problem with the legal system ( a lot of the time it's down to the judge on the day.)

From what you say, your trying to get CRT to abide by what they agreed, filing a notice of discontinuance. Was this in writing or a verbal agreement you had with them. This seems to be the crux of the matter at hand.

Regards kris

The agreement to file an N of D was in writing, but the reason for this hearing is that C&RT are now wanting to persuade the Court to relieve them of the liability for my costs which falls on them automatically when they file the N of D.

[cariad]

Surely in this day and age nobody sends anything off without keeping a duplicate. Do they?

It happened on something a lot more important than this, when the late M.P. MR DIXEN (I think that is the correct name) handed the

dossier on child abuse to a government minister some years back.

[Tony Dunkley]

It could be a big problem if he hasn't had them duplicated and the original paperwork can't be found.

I do have more copies of the 'missing' Statement / Submission and I did give my copy to the Judge on Monday. What remains as a matter of some concern is that the Judge appeared to continue to be of a mind that I had neglected to file it, rather than accept that it had gone astray in the Court Office.

[Jerra]

It happened on something a lot more important than this, when the late M.P. MR DIXEN (I think that is the correct name) handed the

dossier on child abuse to a government minister some years back.

The question that needs to be asked in that case is did the person handing over the dossier want/need to ensure the papers could be produced? In the case of papers for your own case in court you have a vested interest in ensuring copies are available so the sensible thing is to keep copies surely.

[cariad]

The question that needs to be asked in that case is did the person handing over the dossier want/need to ensure the papers could be produced? In the case of papers for your own case in court you have a vested interest in ensuring copies are available so the sensible thing is to keep copies surely.

Fortunately Mr Dunkley has stated in the previous post #935 has answered the question and hopefully the judge will seek out the person/s responsible

for the cock up and deal with them accordingly. With regard to the case I hope that the judge will make a fair and just decision.

[Phil.]

I do have more copies of the 'missing' Statement / Submission and I did give my copy to the Judge on Monday. What remains as a matter of some concern is that the Judge appeared to continue to be of a mind that I had neglected to file it, rather than accept that it had gone astray in the Court Office.

Typical huffing and puffing by pompous judiciary. Make sure you have your receipt and she will have to accept it. As stated before legal profession will stick together but she still has to ensure you are dealt with fairly as she would not want to risk being judged against on an appeal if it went to one.

[Captain Zim]

There are often cock ups with paperwork in court. The thing is, in my experience at least, the matter is handled very delicately without blame apportioned. It's like others have said. This Is the game. It's all very polite. If you go in there, no matter how much in the right you are, and start pointing accusing fingers, it upsets the natural order of things. This is wrong, of course. But wrong and right don't always come into it. This is where solicitors and barristers earn their money.

[Tony Dunkley]

Typical huffing and puffing by pompous judiciary. Make sure you have your receipt and she will have to accept it. As stated before legal profession will stick together but she still has to ensure you are dealt with fairly as she would not want to risk being judged against on an appeal if it went to one.

 

I think that I need to find out more about my potential liability for costs if the Order that C&RT have applied for is made.

It really is a somewhat odd, and I think probably fairly unusual, situation in that I haven't asked for costs [no need to because Court procedure rules award them to me automatically in the circumstance of C&RT discontinuing] but C&RT are challenging the award of those costs on the grounds that my forcing them to issue a Licence by using my home mooring has destroyed their case against me. My involvement in this hearing is solely down to the Judge who ordered the hearing, then ordering me to make a Statement setting out my "position on the Claimants Application". Looking at the situation from a 'non lawyer' point of view, it appears to me that C&RT are in fact now in dispute with the Court and its' Rules, rather than me, and my role has now moved away from being a party to the matter and become nearer to being a witness.

[Bod]

TD as a witness for C&RT...........

 

Good luck, I hope it all goes well for you.

 

Bod

[Mike Todd]

I agree not easy in practice but essential if you want a good outcome. If you are acting for yourself against the other side who are legally represented you are also at a substantial disadvantage. The legal profession and this includes the judge take a dim view of the hoi polloi encroaching on their turf. That's not to say you should not do it, just recognise you will have an uphill struggle and don't react in an argumentative way even if you feel justified in doing so. Basically stick strictly to the facts and leave emotions outside. Good luck.

Not overall, I think, a fair condemnation of the judges. A recent statement from a senior judge, which I suspect reflects the views of many other judges, spoke stridently against the sever limitation of legal aid whioch has led to a massive increase in self representation. In such cases the judge has a strict duty to ensure that the litigant-in-person is properly guided through the process (whilst not speaking on their behalf). This includes making sure that the obscure legal terms used by the opposing lawyers are properly explained in lay terms. All of this takes time and the purpose of the article was to highlight the danger that the courts are likely to become clogged up, with cases taking much longer than hitherto, leading to unacceptable delays in the receipt of justice. The article was a very strong shot across the bows of the government.

[MtB]

Stripping it down as I think a judge might. If a claimant issues proceeds for breach of contract then as a result of those proceedings the victim starts to comply with the contract, I think costs would still be awarded to the claimant.

 

I know your case is more complex but I think this is the baseline principle you need to argue your way out of.

 

 

MtB

[Mike Todd]

 

I think that I need to find out more about my potential liability for costs if the Order that C&RT have applied for is made.

It really is a somewhat odd, and I think probably fairly unusual, situation in that I haven't asked for costs [no need to because Court procedure rules award them to me automatically in the circumstance of C&RT discontinuing] but C&RT are challenging the award of those costs on the grounds that my forcing them to issue a Licence by using my home mooring has destroyed their case against me. My involvement in this hearing is solely down to the Judge who ordered the hearing, then ordering me to make a Statement setting out my "position on the Claimants Application". Looking at the situation from a 'non lawyer' point of view, it appears to me that C&RT are in fact now in dispute with the Court and its' Rules, rather than me, and my role has now moved away from being a party to the matter and become nearer to being a witness.

I think you may need to read the Rules more carefully as it does not seem to me that costs will be awarded to you automatically. Rather, that is the default position against which the original claimant has to argue but there is plenty of room permitted for such argument. I suspect that you may benefit from considering whether the written agreement to discontinue constituted a reasonable settlement of the matters outstanding between you. CRT may well argue persuasively that there offer to you to discontinue - which I think you said you accepted - was in the best interests of settling a complex matter without incurring further costs on both sides. Courts, I believe, welcome situations when parties reach an agreement that does not havce to involve the court itself. Reasonableness is an importatn legal concept that you may which to check on before your next hearing. (You may well have to justify your actions as reasonable and CRT's as unreasonable - both might be considered reasonable which would affect the costs outcome, would it not?)

Stripping it down as I think a judge might. If a claimant issues proceeds for breach of contract then as a result of those proceedings the victim starts to comply with the contract, I think costs would still be awarded to the claimant.

 

I know your case is more complex but I think this is the baseline principle you need to argue your way out of.

 

 

MtB

It is certainly worth making sure that a defence is at hand should such an argument arise.

 

One of the hardest things for a litigant-in-person, I suspect, is to anticipate the other party's arguments and be ready to deal with them. It is tempting to belive one's own case so much that all the effort goes into preparing that argument and not preparing for other eventualities.

Edited November 27, 2014 by Mike Todd

[matty40s]

Stripping it down as I think a judge might. If a claimant issues proceeds for breach of contract then as a result of those proceedings the victim starts to comply with the contract, I think costs would still be awarded to the claimant.

 

I know your case is more complex but I think this is the baseline principle you need to argue your way out of.

 

 

MtB

methinks you have stripped it down wrongly.

 

If a claimant issues proceeds for breach of contract then as a result of those proceedings the victim starts to comply with the contract

According to the data in the system and Tony having a home mooring, Tony was already complying with the contract,

I think costs would still be awarded to the claimant.

CRT withdrew the claim when it transpired they were wrong, subsequently then, using your first point as an attempt at a get out clause.

[Tony Dunkley]

which the

I think you may need to read the Rules more carefully as it does not seem to me that costs will be awarded to you automatically. Rather, that is the default position against original claimant has to argue but there is plenty of room permitted for such argument. I suspect that you may benefit from considering whether the written agreement to discontinue constituted a reasonable settlement of the matters outstanding between you. CRT may well argue persuasively that there offer to you to discontinue - which I think you said you accepted - was in the best interests of settling a complex matter without incurring further costs on both sides. Courts, I believe, welcome situations when parties reach an agreement that does not havce to involve the court itself. Reasonableness is an importatn legal concept that you may which to check on before your next hearing. (You may well have to justify your actions as reasonable and CRT's as unreasonable - both might be considered reasonable which would affect the costs outcome, would it not?)

It is certainly worth making sure that a defence is at hand should such an argument arise.

 

One of the hardest things for a litigant-in-person, I suspect, is to anticipate the other party's arguments and be ready to deal with them. It is tempting to belive one's own case so much that all the effort goes into preparing that argument and not preparing for other eventualities.

As you say, that is the correct position in CPR Part 38.6(1). Being pitifully slow at typing I used the word 'automatically' for the sake of brevity, all to no avail though, as explaining that has now lead to more typing than was needed to do it properly the first time.

Although C&RT did make the first approach re. stopping proceedings after recognizing that they were compelled by law to issue a new Licence, their offer was not to do so by means of Discontinuance but by a Consent Order whereby the Claim would be 'dismissed' with no Order as to Costs. The Part 38 Discontinuance was solely at my insistence, not primarily for the costs consideration, but for the other, and to my mind more important, proviso in Part 38, namely that the Claimant cannot commence substantially similar proceedings again without the prior approval of the Court.

After the amount of my time and effort that has been expended on this matter it would be very nice to get costs awarded, but if C&RT were to successfully overturn the normal presumption as to costs in Part 38 and have costs awarded themselves, then my present stance on a matter of principle would end up looking rather silly in addition to being also rather expensive.

[Captain Zim]

which the

As you say, that is the correct position in CPR Part 38.6(1). Being pitifully slow at typing I used the word 'automatically' for the sake of brevity, all to no avail though, as explaining that has now lead to more typing than was needed to do it properly the first time.

Although C&RT did make the first approach re. stopping proceedings after recognizing that they were compelled by law to issue a new Licence, their offer was not to do so by means of Discontinuance but by a Consent Order whereby the Claim would be 'dismissed' with no Order as to Costs. The Part 38 Discontinuance was solely at my insistence, not primarily for the costs consideration, but for the other, and to my mind more important, proviso in Part 38, namely that the Claimant cannot commence substantially similar proceedings again without the prior approval of the Court.

After the amount of my time and effort that has been expended on this matter it would be very nice to get costs awarded, but if C&RT were to successfully overturn the normal presumption as to costs in Part 38 and have costs awarded themselves, then my present stance on a matter of principle would end up looking rather silly in addition to being also rather expensive.

Are they seeking costs though? Or are they only

seeking to avoid costs awarded against?

[Tony Dunkley]

Are they seeking costs though? Or are they only

seeking to avoid costs awarded against?

They have applied for an Order by means of an Application Notice using wording as follows (in the 'what are you applying for box' in the Notice) : --

 

1) The Claim be Discontinued

 

2) No Order as to Costs

 

The Claimant and the Defendant accept that proceedings should be discontinued, however, the Defendant has refused to sign a Consent Order to that effect and requires the Claimant to file a Notice of Discontinuance. The Claimant therefore applies under CPR 38.6(1) for there to be no Order as to Costs upon discontinuance of the Claim.

----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

 

They are not asking for costs for anything prior to last Monday, but they will be applying for costs for last Monday and the next hearing. The Judge indicated on Monday that the costs for that day would be 'costs in the case', assuming of course that the Judge finds for them.

Edited November 27, 2014 by Tony Dunkley

[Tony Dunkley]

Stripping it down as I think a judge might. If a claimant issues proceeds for breach of contract then as a result of those proceedings the victim starts to comply with the contract, I think costs would still be awarded to the claimant.

 

I know your case is more complex but I think this is the baseline principle you need to argue your way out of.

 

 

MtB

 

methinks you have stripped it down wrongly.

 

If a claimant issues proceeds for breach of contract then as a result of those proceedings the victim starts to comply with the contract

According to the data in the system and Tony having a home mooring, Tony was already complying with the contract,

I think costs would still be awarded to the claimant.

CRT withdrew the claim when it transpired they were wrong, subsequently then, using your first point as an attempt at a get out clause.

To some extent you're both right, and it's the home mooring, or to be precise, the use or absence of use of it that Shoosmiths seem to be focusing their attention on. Their argument is along these lines : --

You were neither using your home mooring nor 'continuously cruising' when away from it . . . therefore C&RT revoked your licence and commenced proceedings to remove your unlicensed boat from their waters.

After the Claim was issued and proceedings commenced you took your boat to its home mooring and by doing so you were then complying with the Licence T&C's and therefore C&RT had no option but to issue a new Licence, and because they had issued a Licence the proceedings (the Claim) could not continue. They go on to say that 'these circumstances were at no fault and beyond the control of the Claimant' and 'Further these requirements could have easily been met prior to the issuing of the Claim and the revocation of the Licence on 3 Jan 2014'

The defendants actions in returning to his home mooring amount to 'unreasonable conduct' bringing about the change in circumstances needed to rebut the usual presumption as to costs in CPR 38.6(1).

-----------------------------------------------------------------------

 

In my view that argument only stands up if the initial demand that I must either 'use my mooring' or 'continuously cruise' is lawful and failure to comply was lawful grounds for revoking my Licence. By discontinuing proceedings and thus denying the Court the opportunity to rule on the legality of that initial demand and the action taken in consequence of it, I think that C&RT have also denied themselves the use of that argument in attempting to avoid the liability for costs. The argument and its' basis can only be sound and valid after having first been tested successfully in the original Claim. Let's hope the Judge sees it the same way.

Edited November 27, 2014 by Tony Dunkley

[Captain Zim]

 

To some extent you're both right, and it's the home mooring, or to be precise, the use or absence of use of it that Shoosmiths seem to be focusing their attention on. Their argument is along these lines : --

You were neither using your home mooring nor 'continuously cruising' when away from it . . . therefore C&RT revoked your licence and commenced proceedings to remove your unlicensed boat from their waters.

After the Claim was issued and proceedings commenced you took your boat to its home mooring and by doing so you were then complying with the Licence T&C's and therefore C&RT had no option but to issue a new Licence, and because they had issued a Licence the proceedings (the Claim) could not continue. They go on to say that 'these circumstances were at no fault and beyond the control of the Claimant' and 'Further these requirements could have easily been met prior to the issuing of the Claim and the revocation of the Licence on 3 Jan 2014'

The defendants actions in returning to his home mooring amount to 'unreasonable conduct' bringing about the change in circumstances needed to rebut the usual presumption as to costs in CPR 38.6(1).

-----------------------------------------------------------------------

 

In my view that argument only stands up if the initial demand that I must either 'use my mooring' or 'continuously cruise' is lawful and failure to comply was lawful grounds for revoking my Licence. By discontinuing proceedings and thus denying the Court the opportunity to rule on the legality of that initial demand and the action taken in consequence of it, I think that C&RT have also denied themselves the use of that argument in attempting to avoid the liability for costs. The argument and its' basis can only be sound and valid after having first been tested successfully in the original Claim. Let's hope the Judge sees it the same way.

I can see your logic there. Once again, I can't say what I would do as I have no idea how much this could cost you if it goes wrong but I can see the rational behind your argument. On a related note, do any of the associations offer legal representation as a member benefit?