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Sanction in costs for non-compliance with CPR and order

Sanction in costs for non-compliance with CPR and order

Postby south1 » Tue Jan 20, 2015 3:00 pm

1. The defendant did not reply to the pre-action protocol of my claim for judicial review

2. The defendant did not serve upon me his acknowledgment of service within seven days because he misspelt my address and as a consequence I received it one month late. I have evidence of this from the Royal Mail

3. The defendant did not comply with the direction of the court contained in the order for refusal of permission on paper which says that he has to serve on me within 14 days his schedule of costs.

The second judge of the oral permission hearing says that this was irrelevant for the issue of costs because the defendant has nevertheless incurred the cost of drafting the acknowledgment of service

I disagree with the decision of the second judge because the consequence of not complying with the pre-action protocol is that the defendant has to spend more time drafting his acknowledgement of service.
The consequence of not properly serving on me his acknowledgement of service is that I was not able to reply to it before my application was refused on paper. If I would have been able to reply to it my application could have not been refused on paper
The consequence of serving on me his schedule of cost only few days before the hearing and a long time after the 14 days ordered by the order of the court is that I had less time to be prepared to oppose this schedule of costs during the hearing

I would like to know if I am right and if can use these reasons to appeal to the Court of Appeal against the cost order against me because I think that it is excessive and that there should not have been any cost against me. Especially as I say in another thread its acknowledgement of service was too long because it should have contained only a summary of grounds ( this acknowledgement of service has 12 pages, 33 paragraphs, and 13 paragraphs about only the same legal issue this of whether or not it is a public body)
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Re: Sanction in costs for non-compliance with CPR and order

Postby atticus » Tue Jan 20, 2015 3:07 pm

Do you understand that if you appeal unsuccessfully you are likely to be ordered to pay the other party's costs of resisting your appeal?
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Re: Sanction in costs for non-compliance with CPR and order

Postby south1 » Tue Jan 20, 2015 11:36 pm

But if I do nothing I will be anyway ordered to pay the cost of drafting the acknowledgement of service which is so excessively high that it is equivalent to a good part of the cost of an appeal to the Court of Appeal
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Re: Sanction in costs for non-compliance with CPR and order

Postby Smouldering Stoat » Wed Jan 21, 2015 5:46 am

But if you appeal and lose you will have to pay that, plus your costs of going to the Court of Appeal, plus your opponent's costs of the appeal. Even if you win, you will still have to pay whatever the costs should have been.
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Re: Sanction in costs for non-compliance with CPR and order

Postby atticus » Wed Jan 21, 2015 7:50 am

So the worst possible outcome is pretty bad, that is the point.

No one here can tell you what your chances are of avoiding that outcome and improving your position.
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Re: Sanction in costs for non-compliance with CPR and order

Postby Denning » Wed Jan 21, 2015 2:17 pm

south1 wrote:1. The defendant did not reply to the pre-action protocol of my claim for judicial review

2. The defendant did not serve upon me his acknowledgment of service within seven days because he misspelt my address and as a consequence I received it one month late. I have evidence of this from the Royal Mail

3. The defendant did not comply with the direction of the court contained in the order for refusal of permission on paper which says that he has to serve on me within 14 days his schedule of costs.

The second judge of the oral permission hearing says that this was irrelevant for the issue of costs because the defendant has nevertheless incurred the cost of drafting the acknowledgment of service

I disagree with the decision of the second judge because the consequence of not complying with the pre-action protocol is that the defendant has to spend more time drafting his acknowledgement of service.
The consequence of not properly serving on me his acknowledgement of service is that I was not able to reply to it before my application was refused on paper. If I would have been able to reply to it my application could have not been refused on paper
The consequence of serving on me his schedule of cost only few days before the hearing and a long time after the 14 days ordered by the order of the court is that I had less time to be prepared to oppose this schedule of costs during the hearing

I would like to know if I am right and if can use these reasons to appeal to the Court of Appeal against the cost order against me because I think that it is excessive and that there should not have been any cost against me. Especially as I say in another thread its acknowledgement of service was too long because it should have contained only a summary of grounds ( this acknowledgement of service has 12 pages, 33 paragraphs, and 13 paragraphs about only the same legal issue this of whether or not it is a public body)

1. Did you plead that the Defendant did not respond to your Pre-Action Protocol in your statement of case and demonstrating evidence of service of the Pre-action Protocol on the defendant?

2. You did receive the Acknowledgment of Service which is important. Your receipt of it has no bearing on the Court's decision on the papers. Once an Acknowledgment of Service is filed it tells the court that the application can then move to the next stage of allocation.

3. An award of costs cannot normally be impeached by a mere delay if the judge did not give any sanction against it. Only if you were in receipt of legal aid can a unilateral delay of three months become fatal to the Defendant.

What you have stated are now issues of mitigation as to the costs awarded the Defendant.

What was the decision as to costs? Is it that the judge awarded a figure to the Defendant without the schedule of costs known since you stated that the Defendant was ordered to provide you their schedule of costs within 14 days?

You should download this document as I cannot guarantee it would be there forever to give you some pointers.
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Re: Sanction in costs for non-compliance with CPR and order

Postby south1 » Wed Jan 21, 2015 3:41 pm

The issue is what is the purpose of the service within seven days of the acknowledgement of service? I think that it should be to give a chance to the claimant to reply to it before the decision of the first judge is taken on paper
Because the defendant did not comply with this delay I was not able to reply to its acknowledgement of service. Moreover the first judge took his decision on paper thinking I was aware of the contents of the acknowledgement of service and that I had the possibility to reply to it.
Moreover I did not put all my documentary evidence in my claim form because I was short of time because the three months deadline and I was waiting to receive the acknowledgement of service to do this at the same time as reply to it. As a consequence the first judge took his decision to refuse me permission on paper without having in hand all my documentary evidence. I was taken by surprise I did not expect that he will take his decision even though I have not yet received the acknowledgement of service

I was able to make only a verbal submission during the oral permission hearing against the defendant’s schedule of costs because I was not able to make any submission in writing because the defendant sent me his schedule of costs only few days before this hearing and as a consequence I do not have enough time to study it in depth and make written submission because I have to deal also with the preparation of the hearing. It is why it was important that the defendant comply with the order of the court which ordered it to serve on me his schedule of cost within 14 days of the receipt of the order of the judge refusing permission on paper. What the defendant did not do I think intentionally
Because I did not have enough time to write any submission about cost I did not make any submission in writing concerning the fact the defendant did not comply with the pre-action protocol. I made only verbal submissions
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Re: Sanction in costs for non-compliance with CPR and order

Postby dls » Wed Jan 21, 2015 4:37 pm

I have sympathy. You describe the standard difficulties and stresses of litigation compounded by the high speed pressure of judicial review.

One thing Denning has right is the specialist and challenging nature of judicial review proceedings. Many litigators see it as a good area to avoid.

As to the justice of your complaints, you have my sympathy, but on the whole you chose to pick a very difficult fight.

Success in litigation lies generally in so arranging matters as to avoid it. Considerable experience can be rapidly acquired through the relatively easy method of making repeated hopeless applications. Sadly, such applications seem often to engender rather than destroy confidence.
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