I'm afraid there isn't. Even if the judiciary could not hide behind their immunity, the conduct which is being challenged is the length of time the Judge gave to your case and/or the result. You are not entitled to a specific number of minutes audience. The Judge controls the proceedings before him. If the decision was incorrect the system offers the remedy of an appeal whereby the correctness of the decision may be reviewed and if found 'bad' overruled. These things have nothing to do with the brief fee or private arrangements regarding legal representation. The only time legal expenses will be recoverable is where arrangements for the control of judicial business has been cocked up so miserably that expense was incurred wastefully. Actually there is another and that is where a Judge dies mid-trial. That happened to me once. But apart from that kind of situation I think you're up a gum tree. I would assess your prospects of getting £460.00 out of the Lord Chancellors Department, Ministry of Justice or whoever presently deals with this sort of thing as zero. You may complain about a Judge but I wouldn't dare until after the case has been finally decided with no pending appeals. This is not something which might be the subject of judicial review proceedings. x20

I know precious little about your case and the background leading up to the hearing for which the witness statement was produced but nevertheless and as a general rule, a document having been exhibited to a witness statement constitutes the disclosure of it and will in my opinion, be treated as having been disclosed for the purpose of CPR 31. CPR 32.19 deals with the issue of challenging the authenticity of documents in the following way: 32.19 (1) A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial. (2) A notice to prove a document must be served – (a) by the latest date for serving witness statements; or (b) within 7 days of disclosure of the document, whichever is later. The notice to prove is N268. When and for what purpose was the witness statement disclosed to you? What was the hearing all about? What in terms of 'the bigger picture' do you hope to achieve by chalenging the authenticity of the email? x20

Andrew, Unfortunately your Judge enjoys immunity from suit. x20

FX, What does the claim seek? I assume for the moment that it is a claim in contract for money, say some form of service charge, and that the Claimant alleges you are in breach of the agreement, most probably a lease. If so and for a kick off I should want to see the lease or other contract, and any other document mentioned in the Particulars of Claim. That would be a way of ascertaining what the claim is about if, as you say, this claim has come as a complete surprise to you. On the matter of whether proceedings were authorised, this is a question of fact. There is either authority or there is no authority. I do not understand as yet the relationship between the company which has sued you and the company you say 'employs' the company which sued you. Can we have some more info in that regard. x20

Jayce, This is an extraordinary tale and you're right, your mother needs help. The facts seem to be that your late father took out a loan of money secured on property in which he held a legal interest. All this was over six years ago, ie before 2003. At the time your mother knew nothing of this. I take that to mean your mother had no legal or other claim to hold an interest in the property on which the loan was secured and hence had no say in whether or not the loan was to be secured on that property or not? If otherwise and for example the property was jointly owned by both your mother and father or was a property in which your mother and father both resided as husband a wife, please say so. If your mother did hold some interest in the property then she ought to have been required to sign the security papers. If so then she would have known about it before the loan was advanced, unless of course her signature was forged. Alternatively she was duped or suffered duress or undue influence to secure her signature. Can I ask what the loan was for? Was the loan for the benefit of both your mother and father or for the benefit of your father only? The law recognises that wives can be influenced by their husbands and in terms of property and security for loans, will ordinarily impose a duty on the lender to satisfy itself that the wife received independent legal advice before deciding to sign the security document. The purpose of the loan may be to the wife's manifest disadvantage. you may care to consider the opinions of the House of Lords in RBS v Etridge for example to get a flavour of what I am talking about and the development of the law in the wake of Barclays Bank v O'Brien (1994) Were any O'Brien type defences advanced on your mother's behalf. Was any legal advice taken before the court decided to make a suspended possession order? Of course, if O'Brien type defences were advanced, those defences would only go to attack the security. It would not attack the question of the liability of your father's estate to meet the debt as if it were unsecured. In those circumstances a money judgment against the estate would be enforceable against the assets of the estate which would include your late father's interest in the property. Besides some background concerning the ownership of the property then, some more stuff on the purpose of the loan and the circumstances by which the agreement came to be signed and some more background to the handling of your father's estate would be handy. Likewise details about the legal proceedings would be helpful as well. Who was the Defendant, the executors, your mother alone? Who? Were the proceedings mortgage possession proceedings or if not then what? I'd like to have thought there was some arguable defence here. My major concern is that a final decision was made over 2 years ago with no appeal. That said, it's worth flushing out some more facts in the hope that doing so produces possible angles and lines of enquiry. Moving on, what are the current arrears under the July 2007 order? Would bringing the arrears up to date be manageable? x20

Guz, In your case the claim was struck out for the Claimants failure to deliver an AQ. I am assuming the case had not previously been allocated to track. Ordinarily, before the court strikes out a party for failure to deliver an AQ (and in the case of a Claimant, pay the AQ fee) it will deliver an order requiring that party to comply adding as a sanction, that a failure to comply will result in that party's case being struck out. I assume something along these lines happened resulting in the strike out. The strike out does not automatically give rise to a right to recover costs. It does not extend to awarding judgment to the other party. To be in a position to recover costs the other party must apply to the court following the procedure set out in CPR 3.5.The form to complete to obtain judgment and costs is PF85A. This form is not available as a pdf download. Go to the HMCS website - forms and search for the MS Word version there. It doesn't have to be sent to the other side. You simply file it and there's no fee. There isn't a hearing of the PF85A request either. It's all done on paper. You file the PF85A and a little while later you get a notice of the entry of judgment sent to you by the court. It is not clear from the thread that you did this. If you did submit a PF85A, alternatively ended up with a judgment with costs, then and only then may you proceed to serve a bill of costs and notice of commencement. Before proceeding with further advice, please confirm whether you submitted a PF85A to the court, alternatively have received back from the court a sealed judgment giving you the right to recover your costs. Please also confirm the case was never allocated to track. Alternatively if it had been allocated to track notwithstanding AQs had not been filed, please specify the track. x20

Send: 1 The bill of costs, and 2 Notice of Commencement with a copy of the Notice of Discontinuance attached to it. x20

Give them 21 + 3 from posting and only post first class. Or if 21 + 3 should fall on a weekend, then give 21 + however many extra days take you to the following Monday. Don't trash your rights over a day or two. Remember, you're now a creditor. Don't act like the dumb ass ones normally found on this site. Sign it. x20

The nice letter has no teeth. That's perhaps why it's 'nice'. The other side will grin to themselves and thank the Lord you've never heard of a N252 notice of commencement. In my view you're better off producing your bill and sending it with a N252. That way the 21 day clock starts ticking and they'll know they're not dealing with a pushover. I just posted a draft N252 to Gooner's thread as well. x20

Yep I do remember, Well Gooner, that bill looks pretty decent to me. And since you sent it to the other side, you may as well stick with it. All you need now do is complete the notice of commencement. Attached is a draft notice with the relevant numbers. You just need to fill out the case details and dates and then get it off to Eversheds. x20 N252 Draft Notice of Commencement.pdf

I was only a few moments ago giving some tips to GoonerHenry about the recovery of costs following discontinuance on this thread. You may find it of interest. x20

Hi Gooner, I've run over the last few pages and see that Eversheds discontinued the case. That's great. First: DO NOT apply to set aside the notice of discontinuance. You have no grounds to. That Evershed's have not unequivocally stated they will not pursue you is irrelevant. If you applied to set aside you would lose and be order to pay Evershed's costs of your unsuccesful application. Next: 1 Produce Bill of Costs Your right to costs arises under CPR 38.(6)(1) and a costs order is deemed to have been made by CPR 44.12(1)(d) from the date the notice of discontinuance was served upon you. The deemed costs order is your right to be paid your reasonable costs down to the date of service of the notice of discnotinuance plus a sum for dealing with the assessment of those costs and court fees. You do not need a further order of the court to acquire a right to costs. Somewhile ago I produced a litigant in person's bill of costs for detailed assessment proceedings for someone else on CAG. I can't remember who now. Anyway, I've found a pdf of the bill I produced and it is offered here. you should not use what I have written but adapt it to suit the particulars of your own case. This is simply offered to demonstrate what your finished bill might look like. If you require assistance on the text, describing the chronological development of the case and so on, let me know. 2 Notice of Commencement You must deliver the bill of costs plus a N252 Notice of Commencement on Eversheds in accordance with CPR 47.6(1). 3 Points of Dispute Having sent the bill and notice of commencement to the other side, Eversheds will have 21 days from receipt to respond with their Points of Dispute (a statement of the grounds on which they say your costs exceed what would be reasonalbe to allow). In sending this to you the other side should suggest a sum of money on which they would settle. 4 Failure to Serve Points of Dispute If Eversheds fail to serve Points of Dispute you may then ask the court to issue what is known as a Default Cost Certificate under CPR 47.9. 5 After that .. Rather than write out tons of stuff concerning something which might never happen, just post here again once you've got the Points of Dispute or the time for serving Points of Dispute runs out. x20 Draft LiP bill of costs for detailed assessment.pdf

JK, I really think you should be concentrating your efforts on constructing a defence based upon one or more of the grounds specified in rule 6.5(4). I would shelve points concerned with the manner of service of the SD. Reasonableness doesn't feature unless in the context of the grounds of defence you advance. The costs you mention do appear very excessive. But again, the amount of the solicitor's costs will not feature unless they are incorporated in the demand. If they are incorporated you have a defence to that aspect unless the contract between you and the creditor provided for you to indemnify him or her for the costs of recovery. x20

Eddie, Answers to Qs 1 Depends. What are your grounds for contesting the full amount? If the creditor is relying on that DN I think it is ineffective to give rise to a right to claim early payment, though the arrears would remain recoverable. The text of the DN is prescribed. The DN must specifiy a date before which you are requried to comply with the terms of it. You will notice the DN uses the phrase (correctly) 'before the date shown'. When is 'before the date' and which is shown? The only date shown is the date of the DN. This is an example of a lazy creditor seeking to escape the burden imposed by the regulations by use of the phrase 'within 17 days of the date of this notice'. That's not good enough in my opinion. The Regulations require the creditor to specify a date. If they wanted you to settle by 27 May 2008, the date which ought to have been but which was not shown, was 28 May 2008. 2 Not of itself, unless you contend that the copy disclosed is not a true copy of the executed agreement and that the executed agreement was not compliant with the provisions of the Act and Regulations. 3 27 July. The Claimant's solicitor will be regarded as having extended time for service of a Defence to 27 July. 4 Begin preparing your Defence. x20

Having considered the bill, it is clear that a costs order was made against you on 21 July 2008. But for the Defendant's status as assisted by the LSC, the cost of the hearing would have been summarily assessed on 21 July 2008. The ordinary effect of such an order is that the costs are to be determined at the conclusion of the proceedings. First question therefore: have the proceedings been finally concluded? If so, with what result? If not, what remains to be done? Next, taking each point in the Reply to the Points of Dispute I would comment as follows: 1-3 Counsel's Fees This concerned an interlocutory application for what I figure was specific disclosure of documents. Preparation for such an application would easily be within the routine skill and expertise of a solicitor with 4 years PQE or less. The work involves deciding if speicifc disclosure is required and if so preparing an aplication notice and supporting witness statement. That's all. To justify the use of counsel would require elements of complexity taking the application out of the norm. In justification for the use of counsel the Defendant merely points to the need to have the witness statement 'accurate.' Whilst it is important that the statemnt should be accurate, accuracy has nothing to do with complexity. Besdies, if counsel was instruted to prepare, the accuracy of the statement would have been entirely dependent upon the information in the instructions prepared by the Defendant's solicitors. If the solicitors were capable of providing accurate information in the instructions then they were capable of incorporating it themselves in the witness statement without recourse to counsel. 5 Affidavit An affidavit is not required. One duly verified witness statement is sufficient. 6 Counsel's Brief Fee See points 1-3 above. 14 Adjournment An adjournemmnt was unncesary since the attendance of the Defendant was not crucial for the purpose of giving evidence. Evidence of the Defendant's state of health was therefore unecessary unless the adjournment was opposed. I assume it was not opposed since there is no refernce in the bill of costs to a hearing at which there was an opposed hearing of an application to adjourn. General Point The Defendant refers to complexity without identifying the complexity, merely knowledge of previous dealings. That of itself and in isolation does not justify a demand that the paying party should bear the cost of the Defendant retaining a level 1 fee earner. Besides, this person was legally aided! Further, what is the complexity precisely. There is no evidence that the applicatino was opposed and if so on what complex grounds. The grounds for the application appear to be simply that the Defendant did not believe the Claimant's version of events. There's nothing complex in that. 23 The question of reasonableness of time spent is in the discretion of the court. A more experienced fee earner can be presumed to spend less time on the same perice of work than a less experienced fee earner. 24 and 25 Evidence in support of the application from more than one person is unnecessary 27 See item 23 28 Any fee earner will know the court fee without having to check it. It's £75.00. Ask to see an attendance note What happens next is the Defendant should file the bill and suporting papers along with the Points of Dispute and Reply with the court and ask the court to fix a date for a detailed assessment hearing. The Defendant may postpone this until after the hearing of your aplication. I imagine your application is limited to a setting aside of the order for costs made 21 July 2008. You base your application on the fact that you did not know that it was listed for hearing that day. I note with some suspicion that the Defendant claims that during the entire period for which costs are claimed communications with you involved just one telephone call (item 16). That is extraordinary. It suggests to me the Defendant never once formally informed you of a requirement for specific discovery, of the intention to apply nor of anything else. If I am right, it goes to the notion of reasonableness and complexity (reasonableness in the sense that £1000s of tax payers money seems to have been spent on an application to the court where a simple request to you would have achieved the same result and in terms of complexity, if you had not advanced any opposition to the application, what made it complicated?). My major concern is that having learned of the costs order you then did nothing about reversing it until after you received the Defendant's bill of costs. You will need a good explanation for the delay. Without one you may be in difficulty reversing the costs order though of course your rights to oppose the amount of costs claimed will remain intact. x20

As for the next move, a notice of discontinuance changes everything. They've thrown the towel in and there is no need to turn up at court. The claim against you is over and the only thing to be decided is the amount of costs they should be paying to you. x20

Moral D, I know of no rule of law either under CPR Part 23 or Part 24 or elsewhere permitting a party to unilaterally withdraw it’s own application once it has been served. If this were so it would lead to injustice. A party to an application can be expected to have incurred time and expense in preparation for the application hearing and the opportunity to ask for those costs is lost if the hearing is vacated simply on the say so of the applicant. The consent of all of the parties to the application is required. Besides, you do not appear to have written confirmation of the withdrawal and if the application were to proceed in your absence owing to some error on the part of the clerk inadvertently referring to your case when he or she meant to refer to some other you might be in difficulty. x20

YTTP, In which case the proper thing to do is seek a full and detailed historical statement of account and admit only to that which is properly due, taking issue with anything else which smacks of penalties. That way what goes forward to be decided remains something on which you will have reasonable prospects of success. If the whole claim goes forward for trial in circumstances where the claimant is likely to get judgment for a substantial aspect of the claim though not all of it, I fear you would end up being ordered to pay a substantial portion of the claimant’s costs on top. On the other hand, if the penalty sums were the only sums in issue it might be the case that the value of that issue was below £5,000.00 with consequential costs savings to you because the issue would be decided on the small claims track. As for the sum you admitted, you would be at liberty to ask the court to direct the admitted sum be paid by instalments assessed by the court after reference to your means. x20

Red, If the company will only provide a service which accords to the measurements taken by the salesman, why do they send out a surveyor to take more measurements? The reason is that commission based salesmen have a habit of mis-selling, mis-measuring and making mistakes in general, deliberately or otherwise. So before the window company manufactures a bespoke piece of glazing, the surveyor goes around to check the measurements. The company manufacture according to the surveyor’s measurements not the salesman’s. My view is that, unfortunately for window companies and because they are in such a haste to get a customer’s signature to an agreement, they get that signature at the salesman’s visit on the price he quotes, not the surveyor’s. They do so at their risk, not yours. The company makes things worse for itself when it asks for and takes a deposit. The company are bound by the agreement their authorised salesman made with you. That the company now claim, after the agreement has been executed, that they are entitled to a further £1,000.00 is ludicrous. Ask them under what contractual provision they are entitled to increase the price. Likewise ask them how they claim that they are not under an obligation to cover the driveway as intended at both meetings. Put it this way: If the driveway is say 20 metres long by 3 metres wide, somehow or other the salesman quoted a price based upon say 50 square metres and the company insist on only providing 50 square metres, who is to decided where over the whole of the 60 square metres, the 50 square metres of new driveway material is to be laid? Is it 20 square metres by 2.5 square metres to the left or is it to the right? Is it 3 metres by 16.67 metres to the area nearest the road or is it the far end? Is it to be laid in some fancy pattern, say a pleasing chequer board design with 10 individual one metre squares of old driveway poking through? No of course not because that would be ludicrous as well. The agreement was an agreement to redo your driveway. It was not an agreement to supply and fit a measured quantity of driveway material. I think there is a difference. Let’s look at it another way. Let’s say I go to my tailor in Saville Row and ask to be measured for a new suit, and during the course of being measured up my inside leg measurement is transposed, so instead of 32” it is written down as 23”. Let’s say we agree on a price of £2500.00 for the suit (the suit only being a two piece). When I go back for a fitting and slip on a pair of worsted beach shorts, I think I would be within my rights to get a little shirty (pun intended) if the tailor told me that I had signed to have my trouser drop just 23” and that if I wanted them to reach the ground there’d be another £500.00 to pay. The measurements are taken by the tailor or the company to enable them to do their job properly. They are not measurements which I am by my signature to be treated as verifying. My signature is to verify that I want to have my drive re-done or that I want my tailor to make me a new suit at the price mentioned. What we have here is a company indicating they will not be bound by their agreement and a company seeking to renegotiate the price. It is not a case where they genuinely but mistakenly believed you only wanted some of your driveway replaced. It is a case where their salesman made an error of calculation. Only where the company could show that you knew they had made an error of calculation and accepted their offer in the knowledge that in truth the company did not genuinely intend to make such an offer, might the company persuade a court to set aside the agreement for mistake. Proving that would be pretty much impossible. It involves them proving what was in your head and what was in the salesman’s head at the time of the salesman’s visit, plus that you also knew that what was in his head and what came out his mouth were different. The company’s prospects get worse given there was some haggling. The company made an error and they should deal with it like a man. If they don’t they breach the agreement and give rise to a claim by you against them in damages. The damages will be for [1] the return of the deposit, [2] interest on [1], [3] such sum over and above the agreed price that you pay to some other company to carry out the same work and [4] interest on [3]. x20

YTTP, Unless I’m horribly mistaken, this case of yours has not resulted in a judgment against you. You simply entered a defence and albeit after a delay, Restons have said their client wants the case to proceed. So the case gets transferred to your local court and will be managed from there. There’s no prospect of a charging order at this point in time. If Restons are posturing and puffing their chest out, saying they are going for a charging order, personally I regard that as unprofessional if not immature and ridiculous. What you do in the meantime is research around and polish up your Defence. What is the Defence by the way? x20

Dedeer, At first blush you have precious little assets and significant liabilities. In those circumstances your bankruptcy would very likely be handled by an Official Receiver rather than a flash suit appointed by your creditors. I say this because, since you have so little in the way of assets there would be nothing for the suit to cream off the top in the way of fees. The legal title to the house is your husbands. Same goes for the cars. The house was bought by him alone some years before you married. You have contributed nothing to the acquisition of the property nor to the household bills. Assuming that to be so it would be difficult for your Official Receiver to advance a claim to have some equitable interest in the house. Your husband could resist those proceedings by denying there had been anything tangible by which you acquired an equitable interest. You would support him upon that case no doubt. Worse from the Receiver’s point of view, without estate assets to prosecute a claim he would probably require some sort of no win no fee arrangement with a lawyer ahead of launching a case. Even worse still, if the receiver lost, he would face the risk of being ordered to personally pay your husband’s legal costs. The risks for the receiver would not be insignificant, suggesting he would wish to obtain insurance cover for protection. That insurance may be prohibitively costly. Weighing things up in the balance on the brief particulars of your post, my money is on the house ownership remaining exactly as it is right now. x20

JK, There was always some doubt the SD was properly served because the SD was not handed personally to you but instead, was inserted through your letter box. The creditor may have had a case for saying everything practical had been done to bring the SD to your attention, but that was not the same as saying for sure it came to your attention. That is, until you made an application to set aside, thereby providing unequivocal proof that the SD had indeed come to your attention. Now that you have applied, to achieve a set aside order it will be necessary for you to demonstrate you fall into the limited grounds set out in Insolvency Rules 1986 Rule 6.5(4). Rule 6.5(4) says: The court may grant the application (to set aside the SD) if (a) the debtor appears to have a counterclaim, set-off or cross demand which equals or exceeds the amount of the debt or debts specified in the statutory demand; or (b) the debt is disputed on grounds which appear to the court to be substantial; or © it appears that the creditor holds some security in respect of the debt claimed by the demand, and either Rule 6.1(5) is not complied with in respect of it, or the court is satisfied that the value of the security equals or exceeds the full amount of the debt; or (d) the court is satisfied, on other grounds, that the demand ought to be set aside. There is nothing in 6.5(4) which talks about ‘advance warning’ or ‘prior notice’ or ‘unavailability of creditor’s contact constitutes abuse of process’. The rule is all about whether the debt is properly due or not and if it is due, whether the debt is secured. I’d concentrate therefore on why the debt is in dispute. Exactly, why is it? x20

Imp, This would appear to be an order issued under CPR Part 71. that said, it sounds to me, but please confirm, that you have not been served personally with the order to attend for giving further information because you talk of presuming it was sent to your previous address. An order to attend must be served personally on you (See CPR 71.3) unless the court directs differently. It is unlikely that the court directed differently. If it has not been served personally on you then the creditor will be unable to swear the affidavit which is required under CPR 71.5. Without an affidavit the hearing is adjourned and re-listed until such time as you are properly served. If properly served, ensure you ask in writing to be paid travelling expenses. Make sure you make that request within 7 days of receiving the order (CPR 71.4). If you have already or are ever properly served with an order to attend for further information, make sure you fully comply with the terms of the order, attend court as required and answer all proper questions as directed. A failure to comply may be treated as a contempt of court, ultimately punishable with committal to prison. x20

Absconsult, I am surprised that an application to set aside a SD delivered to a limited company got past first base. Unlike SDs served upon individuals, limited companies do not have rights to apply to the court for a set aside order. The only thing a limited company can do is raise objections in correspondence. If the creditor should later issue a winding up petition which the company intends to oppose, the company should immediately apply to the court for an order restraining advertisement. A petitioning creditor is bound once 7 days have elapsed following service of the petition, to take steps to have the petition advertised. If advertisement occurs all manner of problems for the company, too numerous to mention here, will occur. The company must act fast. Squirrel, A warrant of execution is quite a different animal to a statutory demand. Do not apply what you read in the original post to warrants of execution. If you wish to apply to set aside or suspend the warrant go ahead and fill out the application form. It’s a N245. x20

sali, Since the agreement was in writing (you signed it), the answer to your question should be found by examining the identity of the parties recorded upon the agreement in question. You say you signed the agreement on behalf of the organisation. If so, the agreement should say as much and record that you signed in your capacity as treasurer and not as one of the contracting parties. Have a look at the agreement and read this post about service of statutory demand's by post. Then get back with any more questions. x20