My case against Vault may be a little more complex than ericsbrother thinks. In an unrelated matter and by way of illustration, I recently booked a hotel room for 2 nights at £130, to be paid on arrival. The contract provided that the fee for cancelling the booking would be £130, even though nothing had been provided for the consideration. Furthermore, in certain types of contract, there is no right to cancel. As I said in my post, regulations provide for this and for the absence of a warning of it to the Consumer. Unfortunately, as a lay litigant faced with the other side’s solicitor, I do not have ericsbrother’s faith in the court system. I refer to my thread “Wandered into court costs minefield” that I started in 2013, where I came within inches of being crippled financially for the rest of my days. There are two reasons why I didn’t cancel the cheque. First, I bank online, but had no computer to take that step. The Public Library computer would not allow me to access my online account, presumably for security reasons. Second, Vault neither responded to my letter nor sent the computer with the rapidity they state (one to three days) after 14 days, I had good grounds to believe the cheque was lost. It could not be cashed by a third party since it was crossed “Account payee”. I don’t feel I have to explain this to anyone who is wise only because they have the benefit of hindsight. About filing a stat dec, I have seen it in these forums that you should record critical phone calls; elsewhere, that such recording may not be introduced in court, but that a stat dec sworn to contain a true account of the conversation might be permitted, provided the original recording is also in court. That is not to suggest that, in this matter, such documentation would definately be relevant and necessary. I do not know what Vault’s position is, except that I should not be given my money back. Also, my claim has by now extended to more than the original amount I paid, in which I will succeed only if I meet a fairly high standard of proof. If ericsbrother thinks I am wrong to be prepared for a dirty fight, though I do not know from which doorway the mugger will emerge, the idea might be for him to explain, for everybody’s betterment, how he comes to that conclusion. I think what ericsbrother meant was that I might be overthinking the matter. As my post makes entirely clear, the prescribed letter-before-action has already been sent. However, before filing my N1, I posted on here speculatively, to expose my understanding of this matter to the possibility of alternative, better experienced and more technically knowledgeable views. I am grateful for those who have helped me.

@unclebulgaria Thank you. I will consult Patricia Pearl "Small Claims Procedure in the County Court" and get back to you once I have better understood the matter of particulars of claim, in effect, if they are needed and if so, when they should be filed. Meantime, thank you for your reply. Why don't they teach legal action in schools, do you think? At least, they didn't in my days, but it is becoming something of a necessity to know at least the basics.

To the site technical team: - The CAG server has separated my post into lines at the point of each punctuation mark, as if I had wanted to cater for a slow reader. I do not want to post it again, because, I understand, to do so would cause confusion. Can it be re-assembled the way I wrote it, please?

Sorry, but if you won't bother to read more than the first few lines of a Post, why make a reply? The payee received the money some months ago.

On 05 November 2016, I phoned Vault Computers Limited of Bradford, Yorkshire and agreed a price for the computer I wanted them to assemble for me according to certain component options they offered. We agreed that I could pay by cheque, Vault undertaking to supply the computer “once the cheque had cleared”. On the same date, I sent them a letter referring to the phone call, repeating my assembly options and enclosing a cheque for the agreed amount, crossed and worded “Account Payee” made payable to Vault Computers. By 19 November 2016 I had heard nothing from Vault I phoned both numbers given on their website. Voice recordings said that the numbers were either not available or not accepting calls. By 05 December 2016, Vault had made absolutely no contact with me and the payment to them had not left my bank account. Therefore, on that date, I purchased a similarly priced computer from Amazon.co.uk using my credit card. I received the Amazon computer on 08 December 2016. On 10 December 2016, I found that the cheque to Vault had been paid on 07 December 2016. I immediately phoned Vault to ask them to stop my order, explaining that I had believed my letter to them had been lost and that I had bought a computer from a different supplier. They replied that they would attempt to stop dispatch of my order. They asked me to phone them in a few days for further information. On 19 December 2016, I phoned Vault again. They said that the computer they had assembled for me would be added to “stock” and they undertook to make a full refund of the purchase price by cheque. They said strikes at the Post Office would delay reimbursement until the New Year. By 01 February 2017, I had neither heard from Vault nor received reimbursement. On that day and the next, I made repeated attempts to speak to Vault on the phone but could not get through. One number returned the “Not Available” tone and the other, the same recorded message as on 19 November 2016. I sent letters dated 02 February 2017, 20 February 2017 and 18 March 2017 to Vault’s registered address, seeking a reply and reimbursement from them. However, Vault remained silent, even after receiving my letter-before-action, sent Recorded Delivery. On 12 April 2017, finding that Vault currently has a retail trading unit in Shipley, Yorkshire, I wrote to them additionally at that address. By 01 May 2017, there has still been no further contact with Vault since 19 December 2016 , no computer delivered from them and no return of my purchase money. There are no judgements recorded against Vault Computers Limited, no registered bankruptcies, and nothing to suggest they are in any trading difficulties. Vault’s silence is perplexing. If I format my small court claim according to certain presumptions about how they might defend against it, I might be furnishing them with a defence they had not considered. In particular, I find myself wondering if I should attempt to introduce statutory declarations laying out verbatim the conversations we had on the phone, which I had audio-recorded for the purposes of assisting my memory if I ever needed to to draft such statements. Those declarations , if the original audio recordings were present, might assist the court as evidence that, for example, Vault had agreed to accept payment by cheque, or had undertaken to reimburse me in full in the circumstances I had described to them. However, the same evidence might undermine my claim if those matters are not issue in Vault’s defence. Does anyone have experience of attempting to introduce audio-recordings to support small court claims? Does anyone have experience of swearing statutory declarations? There is a third way, which is to rely on the way things were left by Vault, expressly that they did not supply the goods within the prescribed period of 30 days, freeing me from the contract and entitling me to a full refund. However , not knowing Vault’s position, it might be counter-productive if , for the sake of simplicity , I omit the pertinent fact that I had asked them to stop my order. I may have had no right to cancel, if the goods were “made to the consumer’s specifications or are clearly personalised” per Reg.28 of The Consumer Contracts (Information, Cancellation and Charges) Regulations. If there was no right to cancel, I am still not bound by the contract since Vault did not inform me of the absence of a right to cancel, as they were required to under Regulation 13 of the same body of regulations. Perhaps I am over-thinking this matter, but Vault’s silence is perplexing. Somebody say something...

giraffes (OP) replies to say: Thanks. Sorry, I forgot to mention it's not a Lloyds bank account. I have now seen Citizen's Advice Bureau worker. He concurs with everybody here I need a solicitor. Even if EB had been an appointee, Mum could not have known what that meant. CAB (not me) mentioned the f.... word. There is nothing in the whole peice that is a cause for rejoicing. Any more words of wisdom, support, w.h.y. anybody?

giraffes (OP) replies to say: Thanks, honeybee 13. There is no doubt as to the identity of the bank and branch.

giraffes (OP) replies to say: Yes, point taken about notifying insurance company that I hold the letters of admin. Next on my to do list. Ditto, point about applying to bank's bereavement office. I will try again if my reply to bank's routine management fails. However, the bereavement people wouldn't deal when they established that the account in question was a Platinum Card account, saying that the enquiry should be addressed to the credit card section. In their turn, that section said a state pension should not be paid into a platinum card account. Banks shouldn't give people the run around, either, but it happens... I have written to the Office of the Public Guardian with what I have established so far. However, I am guided by the consensus that this is probably a matter for the Court. When I tried that with my previous problem, I faced a disaster as to costs - hence my post was entitled "Wandered into Court Costs minefield". I got out by the skin of my teeth. Thanks, CrappoMan, about the steer to agents and appointees. The more I get an insight into these things, the less likely to fall foul of the legal system.

giraffes (OP) replies to say: Thank you, CrappoMan. The relevant part of the bank's letter (written by an "Administration Assistant") reads as follows: "Dear [giraffes] thank you for your letter regarding the estate of our late customer. I can confirm that account [sort code...account number] was not a power of attorney account and [your mother's] account is not mentioned anywhere on the account [sic]. Due to data protection we are unable to give any further information and you would need to contact the account holder directly. We have located no accounts in [your mother's] sole name." I think you will agree this is rather mysterious. Without power of attorney, how could anyone arrange and how could the DWP agree for mother's pension to be paid into an account that does not mention her name, whether it is singly or jointly held? If Mum's name is not mentioned on any account, how can the bank regard her as a customer? I get the impression that low level staff are so terrified of disclosing something unauthorised, they are tripping over their own tongue trying to turn the common place into a riddle. As far as court action is concerned, I believe I will only need to show that my mother's pension was received by another who had no entitlement to the beneficial interest in it, to establish grounds for it to be deemed an estate asset. The complication I fear is that EB has so co-mingled his own assets that the judgment will go to him because he appears to have been a faithful son, re-investing money to produce the best yield for both himself and his mother. My involvement in the insurance policy to date has only been to phone up the company, give them the policy number and ask for claim forms. I could not answer all the security questions, one of which was the identity of the bank from which the premiums were paid. It might be, seeing that, the company requires my brothers to co-sign as a form of checking my credentials. If so, it is not going to get me further if I have to report that one of them refuses to sign. I agree, I will have to start again, by sending my letters of administration and seeking to claim individually. Thank you again.

giraffes (OP) replies to say: Thank you, all, for your answers, which have improved my confidence in the difficulties I face. So that the place I have arrived at will be transparent, I would like to clarify certain aspects as follows: In August 2014, some 7 months after Mum passed, I applied for and was granted letters of administration in my sole name by the local Probate Registry. During the correspondence with EB about Mum’s estate, he alluded to a payment to his solicitor in 1999 in respect to Enduring Powers of Attorney. I replied to say that his EPA was probably unlawful on two grounds. First, the date coincided with a declaration of Mum’s incompetence, and then, EB had not complied with the pre-requisite of notifying all his brothers of the intended registration. EB promptly sent me a copy of the actual bill he paid to the solicitor. It relates only to advice taken by EB about beginning EPA. It suggests, too, that EB did not proceed any further, upon being advised by his solicitor that it was indeed too late for Mum to know what she would be signing. However, before I had received this clarification, I had already written to EB’s bank, making the mistake that EB had probably wanted me to make, of believing he had acted with EPA over Mum’s pension. The life insurance company requires all surviving children to sign the insurance claim form. Naturally, OB and me have signed, whereas EB has now refused twice, because he finds it objectionable that I have put his name forward as the person to answer any questions the insurance company has about the claim. I nominated him, because all I know about the policy is the one bit of information he gave me - the policy number. Though I would wish to be able to act as the named contact, EB continues to withhold from me the policy documents. His second objection is that he does not know what has “transpired” (his word) between me and the insurance company. However, I made one preliminary phone call to the company, and when I sent the claim form for EB to sign, I covered it with the same email the company had used to respond to me. Because EB took out the insurance originally, and I was not a party to those communications, any objection I made on those grounds would be more valid than his. However, I am trying to avoid falling into the trap of merely scoring points. EB also refuses to sign the claim saying I am the “de facto” contact, but I don’t know what that means, not being fluent in Latin. Finally he refuses to sign on the grounds that he does not want to be the named contact. However, it is certain that he will want his share of the pay out. I find his failure to cooperate ironic, because the proceeds of the insurance might well cover whatever deficits arose when EB was at the helm. There is no reason why EB did not make a claim on this insurance when Mum died in January 2014. When I applied for letters, I gave an estimated value of Mum’s estate based on the total amount EB had distributed between we three brothers, expressly, £21k. I did not declare the prospective purchase of a tombstone, because funeral expenses are exempt. I did not expect any enquiries from the Government, because the threshold for means tested benefits is £23k, to the best of my knowledge. However, it follows that an estimate that approaches so close to the threshold was likely to be questioned. Following my grant of letters, the Department for Work and Pensions told me informally that if I was unable to prove the provenance of the balance I had estimated, they would deem the estate in debt to them. In writing to EB more generally about my duties as administrator, I also told him about the DWP’s enquiries. I emphasised my need of his cooperation to answer them and indeed, to defend the estate from any claim they might make. EB’s refusals to cooperate, both in that matter particularly and with my general responsibilities as the administrator, have been studious. As I understand it, the Department for Work and Pensions has grounds to believe that Mum had not been entitled to Pension Credit (and, perhaps, other means-tested benefits), because, by appearances, her accumulating pension receipts had exceeded a certain maximum threshold. I believe that maximum is £23k. Following her discharge from hospital into a nursing home, Mum was cared for under the NHS continuing care scheme. The nursing home manager told me that the Local Authority paid all her accommodation costs. Mum’s dementia caused her to be unaware, and she could not have asked for Pension Credit because her understanding would not have stretched that far. In addition, it is difficult to see who, around her, would have considered Mum had need of a pension top up in these circumstances. However, EB’s figures suggest he was paying merely £100 p.a. (sic) for Mum’s material needs. If anyone had asked EB if there was a better allowance available to her from her pension receipts, perhaps to obviate an unnecessary claim for an increase, his answer ought to have been very definitely yes. Alternatively, the answer might have been “No”. I suggest this because one of the security questions asked of me, when I sought access to Mum’s credit file, centred on identifying payments to a recent mortgage and a recent store card account. The fact is that somebody claimed a top up to Mum’s state pension that resulted in increased receipts into the account held in EB’s name, where, however, there could not historically have been any shortage of funds. When that balance became a surplus, it ought to have been declared whenever a claim was made or rejuvenated, and at the very least, as soon as the top up began to appear to be an unlikely entitlement. EB himself has produced some lengthy but wholly unreliable arithmetic that purports to show the balance of her pension account stood at some £32k at the time of her demise. He must have spent hours compiling this “account”, which he falsely prefaced to the effect that it was information I had asked for. It purports to begin in 1999 but EB had omitted the essential of a starting balance. Moreover, his figures are at best implausible and otherwise completely nonsensical, and, unsurprisingly therefore, not supported by a single original document. Ostensibly, EB had worked from original or second order documents to produce this statement. If so, there is no reason why he did not see it as expedient to send me them, because I have repeatedly asked for relevant, original documents. Because of all these defects, EB’s calculations cannot function as proof of anything except an acknowledgement that Mum might have been overpaid. It is certainly not a substitute for the account it is my duty to produce, to the satisfaction of the Court if necessary. Undeterred by any such a consideration, EB appeared to be offering to transfer, into the administrator account, the figure he arrived at based on this statement, expressly, about £7.5k. Naturally, I could not accept either his uncorroborated calculations, or any appearance that I had negotiated a settlement with him. I have written to tell him so and to reiterate my need of original documentation. No doubt, EB hopes, perhaps validly, that it will look good in any court proceedings to have handed over money on the basis of figures I am supposed to have approved. EB has now electronically transferred this additional £7.5k. If nothing else, it proves that when EB described the original £21k as “the residue of Mum’s pension” and each £7k cheque as “one third” of it, he had knowingly misinformed OB and me in writing. Furthermore, it occurs to me that EB prefers, very definitely, to transfer money, than to communicate reliable information. This naturally makes me highly suspicious. For example, though he asserts that this transfer has emptied Mum’s pension account, he continues to refuse my demands to hand over the passbook. My suspicions about EB’s motives are heightened by other aspects of his conduct: Why did he not claim the life insurance when Mum passed? Why is he obstructing our claim now? Why in May 2014, did he abandon, without further mention, a “dormant” pension account (about £3k) belonging to Mum, after having obtained written consent from OB and me to transfer it into his own account and share it out? Why did EB inter Mum’s ashes in the one place I had told him she abhorred for herself when she was alive? Why did he not agree with me, that, since he had interred our parents in the same grave anyway, the tombstone should be inscribed to memorialise both of them? EB had proved uncooperative in all matters to do with the balance of Mum’s estate at her death. The evidence I need was also being sought by the DWP, including the value of a funeral bond document and details of other funeral costs that the bond did not cover. Incidentally, the funeral director company would not cooperate, either. I began my enquiry with them on 20 August 2014 and despite repeated chasers sent to them and their Head Office (who ignored me completely), they did not reply substantially until 23 October 2014, having claimed to be prevented from disclosing the funeral costs by the Data Protection Act. I think it more likely they were prevented by the Eldest Brother Trumps All Act. I am frankly perplexed that my grant of letters of administration, a Court issued deed, appears to count for so little. In the shorter term, it might also be that EB hopes the absence of a certain quantity of money from Mum’s pension account will fox the authorities. It occurs to me that he might have tried something similar before: By coincidence, I still have a pass book for a high-end building society account EB opened in my name in 1992, into which he deposited a large redundancy payment. I also have a copy of the letter I sent him, dated in early 1995, telling him that I had deposited the money into a new account in his name and advising him to collect his new pass book from the building society. I had changed my mind in the following circumstances: In December 1994, a few days before Christmas, our youngest brother (YB) died in an untimely manner. The verdict was left open, but he probably took a deliberate overdose. YB had been saving for a new motorbike and so left a lot of money. EB had refused to cooperate in a family memorial for YB, and had deposited, untouched, his share of the money YB left, into the account in my name with the redundancy payment I was still holding for him. I had been so upset by this display of unspeakable greed I had promptly told him to make other arrangements. Returning to the present, I had sent a copy of Mum’s death certificate and of my grant of letters to the DWP, but they relied on the Data Protection Act to refuse the sort code and account number into which they had been paying Mum’s State pension and Pension Credits. I replied that the DPA had no application to the data of deceased persons, and asked them how it would be possible to cooperate with them if they refused to cooperate with me. After a delay of 11 weeks, the DWP eventually gave me the relevant bank details, and after a further delay, the amounts of the most recent payments. Again, enclosing the death certificate and a sealed copy of my probate, I communicated this information to the bank branch identified by the sortcode, explaining the circumstances. My only mistake was to state that EB had acted with EPA, as he had led me to believe. I asked the bank to cooperate with me to transfer, into my administrator account, whatever assets of Mother’s they held in the account the DWP had identified. The bank has recently replied with the following riddle: My mother was their customer; there is no account in her sole name; the account into which her pension was paid was not a power of attorney account; the deceased is not mentioned on that account; due to the Data Protection Act they cannot tell me who the account holder is; I need to contact the account holder directly. I have replied as follows; they have seen my credentials; they are not excused under any legislation from explaining [the above riddle]; the DPA has no application to the data of deceased persons; I am seeking to settle the deceased’s affairs as a member of her close family on behalf of the family, which is a purely domestic activity to which the DPA also has no application; the legislature anticipates that those who keep their friends’ and relatives’ details in their address and account books will exercise discretion in their use of them; I seek an appointment to enable the entirely orthodox process of collecting the deceased’s assets. I await the bank's reply. If anybody has any more feedback for me, I will have the greatest pleasure in reading it from you. Thank you all, again, for the assistance you have already rendered me.

Giraffes replies to say: Thanks, folks, for your interest. As it happens, the bank in which EB received my mother's pension payments under his own name do not want to play. They have refused me info on the grounds that EB's account is protected under the DPA. They suggest the obvious - that I ask EB for consent to make enquiries, but I have made it plain that that is a game he will not play. I have replied that the DPA has no application to the data of deceased persons, and that I function as the family representative in a purely domestic setting - to which the DPA also has no application. In simple terms, the whole world and his dog has shown the greatest reluctance to cooperate with me. Apparently being the eldest brother takes precedence over a grant of letters of administration. EB has today replied to refuse to sign as a co-signatory to a claim on a life insurance where Mother was the insured. Right now, I feel utterly sickened by such a display of self serving, and it does not make me feel better that he is cutting off his own nose to spite my face. I can't wait to hand this poisoned chalice over to the boys in blue, but I will act with all due caution, not wishing to over-egg the pudding or use a sledge-hammer to crack what might be a self-opening nut.

Giraffes replies to say: Thank you ever so, CrappoMan (I hope I got that right). EB has sent me a paper from 1999 suggesting that he did not obtain Power of Attorney because by that time Mother was already mentally disabled. He has simply been receiving Mum's pension under his name. This is getting serious. Once I have boned up on the said Act I will write as you suggest. You have been extremely helpful. Thank you, again. But if anybody else wants a punt at it, please tell me what you think. Knowledge is power. Thanks.

Giraffes replies to say: EB has always been dominating, with a fierce temper and a black belt in karate. Quite frankly, I am afraid of him. Because of that, I need to know the exact law that applies so that I can write to him with confidence. I love the sound of police action, but first, can anyone point me to the right page of the legal dictionary?

Hi, I’m giraffes and you may remember me from a post I made back in 2011, when my GPs wrongly took me off their patient list. I got nowhere, but spent over £600 in disbursements. Despite that, here I go again… This time my problem is similar to that of davey1309 (28th July 2014) whose brother hijacked his inheritance. My mother became mentally incapable due to dementia about 1998. My eldest brother (“EB”) obtained power of attorney to conduct Mam’s affairs. I have another older brother, “OB”. Mum died in January 2014, leaving no will. EB assumed responsibility for making her funeral arrangements, and did a bit of “tidying up” of her affairs. He did not apply for letters of administration because the value of the estate was (apparently) comparatively small. I told EB Mum did not want to be put in the same grave as her husband; our father (“Pop”), despite which, EB interred Mum’s remains there anyway. When EB sought the consent of OB and me to place a tombstone for Mum, I made my consent conditional upon his inscribing it additionally to mark Pop’s burial in the same place. EB abandoned the placing of any tombstone and later wrote me that I had withheld my consent to a tombstone for Mum. In addition, although OB and I had consented to his obtaining a transfer of a relatively small sum of money that he had said he would share out, he never mentioned it again and left it where it was. By August 2014, there was still no marker on the grave, so I wrote to the Probate Registry to ask if I could be granted letters of administration over the right to erect a tombstone and the aforesaid small sum to finance the project. The Probate Office’s arm’s length reply was very sniffy, so I took it to be a refusal, and applied for and was granted the administration of the whole of Mum’s estate. That obviously comes with responsibilities, which included answering to the Department for Work and Pensions (“DWP”) in the matter of the amounts, in life-changing proportions, that EB had already distributed to OB, me and himself. The DWP wanted to know where all that money came from. EB had merely told me it was “the residue of Mum’s unused pension”. The DWP told me that if I did not disclose where the money had been kept, they would treat it as if it had been fraudulently secreted, instead of being declared, whenever Mum had applied for means tested benefits. They would deem the estate in debt to them on that basis. They have since decided that is the case. In the meantime, I have written several times to EB but he has been extremely reluctant to cooperate in the supply of relevant information. In the course of that correspondence, EB has disclosed a number of assets, which, however, he had not mentioned in the preceding months. He had kept back a “contingency fund for unexpected debts”, but had written me he was sure nothing was left owing after he had “tidied up”. He had also retained a fund “for the tombstone”, but still had access to the small sum he had promised to distribute but had abandoned. He has now offered to transfer those funds - again of considerable proportions - into the administrator account I opened, but describes them as “the residue of Mum’s pension” - a description he is using for the second time. The accounting he cobbled together for this money is nonsensical, and bereft of a single original supporting document. While claiming it is a transfer of all the money left in the account, he refuses to turn over the pass book to me. At the very least, it is plain that when EB sent me money and stated it was “1/3 of Mum’s unused pension”, his subsequent words show that was not true. Finally, he has also revealed the existence of a life insurance policy, but he is keeping the policy documents. I have also made enquiries of third parties. My mother’s pension had been paid into a high end credit card account in EB’s name. EB was fairly frugal in his spending on Mum’s needs (she was “locked in” by her dementia), so over the past 16 years, he was in a position to invest and re-invest the balance remaining from the payment of her State Pension and Pension Credit. When I tried to obtain my mother’s credit report, I was asked questions for security purposes that centred on the identity of certain financial transactions including a newly taken-out mortgage. Naturally, I could not answer the questions so I could not obtain the report, but I am suspicious that these transactions have been made in her name. Can anybody please tell me, what are my powers as the estate administrator, can I take my brother to court on the basis of a suspicion that he is withholding estate assets from me and OB, what is the class of the action, and what is the law that applies?

Have you forgotten the environment?

Thanks, steamie. I have re-read my application for setting aside the order striking out my claim. (I was looking for something else) and found I had stated that with my claim struck out, including its statement of truth about the pre-hearing long history of the defendant's withholding of documents, I will not be able to rely on it for the purposes of the detailed assessment of costs in accordance with Rule 44.5. I think there is a lot of sense in that. Knowing the defendant the way I do, there is no doubt they would exploit my having no access to the "precedent" nature of the terms of my claim and allege I had no grounds to have applied to the court. So, I realise there is a point in seeking to overturn the striking out, not related to re-hearing it. I had stated that without the claim to depend on, I would be at a disadvantage compared with the defendant. Armed with the claim, I am not afraid of the costs assessment, from which I think the defendant will not prosper if I am to believe the system is reasonable. If I have erred in my conduct so far, it is in seeking to bring forward costs issues, having forgotten the assessment process yet to come. I can apologise to whomsoever for that as it has probably been a disturbance. I agree I place myself at great risk of disastrous costs. However, they are already so in excess of what I could ever pay there is no point in trying to limit them to the merely impossible. An appeal in the name of a decent court trial will be cost-effective, and the basis of such an appeal is that I am entitled to be given reasons for the order, that not being, in any way, a disproportionate thing for the court to provide - one sentence would do it. Likewise the defendant's sol might have clued me up about their conduct. If the system is legitimately opaque to the lay claimant it is about time somebody put in a protest about that. However, I believe I am the victim of wilful obscuration and those who obscure do so with an air of impunity. That makes me want my day in court. However, I have already got dibs on my spot under the railway arches...put a bob in my box when you see me! I have now applied for a postponement of the hearing on grounds that the interests of justice will be served by my being supplied with a transcript of the judgement striking out my claim in place of the withheld statement of reasons for it. I do not hope to get the postponement - the other side have a right to a speedy settlement - but I feel it is important to show I tried everything to be put on an even footing with the other side in terms of being prepared with argument and authorities bearing on the validity of the striking out. As mentioned above, I have given one reason why it is not always fair to strike out a claim just because the claimant doesn't attend the hearing. He surely needs it to show it had been met pre-trial, for example. I am not sure what you mean by dragging the defendant through the court under the DPA. The DPA is merely a tool to get information, and to some extent it has worked. I have a claim for compensation under negligence, as you say. Yes, that would be a claim to the small claims court - the real one the next time, I hope! As I understand it, a claim to the Ombudsman precludes a claim to the courts. There is much public distrust of the NHS complaints procedure at present. The NHS is shown to cover up, though there have recently been announcements of radical change putting patients first and (as if the principle of honesty was misunderstood) making it an offence to lie to them. I retain my deepest suspicion that the NHS gets all the help it needs from other authorities, including the Health Inspectorate, whose investigation can be superficial. Also the Community Health Council (PALS) is staffed by amateurs acting charitably, and therefore not trained in medico-legal matters. Considering the issues are about one's health, to the point of life or death, complaint procedure is severely inadequate. From the beginning I resolved to do as much as I possibly could through my own devices. It is disastrous at the present juncture, but nobody said it was going to be easy. You can't make an omellete without breaking eggs, and everything will be alright in the end; if not, it's not the end! Thanks for your understanding and help.

Thank you steam powered. The following is not meant to be confrontational - I am just trying to see if I understand the legal predicament. In reference to your first paragraph, yes, I would be automatically liable for the costs up until the withdrawal. I might say I intended to reduce my costs burden by withdrawing, and that outcome was kinda implied by their sol. In that case, I might equally well say I was double crossed in that they dispatched Council for no other reason than to claim the cost of his unnecessary attendance. It might be legal but it is not just. Furthermore, if his attendance had been necessary because my withdrawal had not been effective, we (you and I) have already seen in previous conversation how this could have been the result of my undue haste due to the other side's withholding the access I claimed until the eleventh hour. I have already said I had no intention of discontinuing because it really looked like the hearing would be necessary. I did not familiarise with discontinuance procedure as a result. Furthermore, it was so late in the day (so to speak) that the sol made the error of faxing his intention to attend to apply for the claim to be struck out to a local shop, but had no means of telling me he had done that. Unsurprisingly I did not get notice of his application. In my view, he might have said nothing, there being a situation in which he might be granted leave to make the application without notice due to urgency. However, he waived the option of giving no notice of his application. Having opted to give that notice, it had to be served in an appropriate manner. I see it as like indicators on your car. You don't have to have them but if you do they must be in effective working order and it is an offence if they are not. So, the sol had breached the rules when he opted to give me notice but served it ineffectively. We were both struggling to get things done properly because of the tardiness of his client. So there are three things in my favour. 1. Doublecrossed. 2. Brevity of time caused by defendant meant I was liable to get things wrong. 3. Even so mistake was not fatal. 4. Inadequate notice of application to strike out. 5. Claim had been settled, withdrawal was to save unnecessary attendance at unnecessary hearing. So what interest is being served by the order that I pay for it. (Qui bono?) In the meantime my bills accumulating because of the defendant withholding documents which they knew I had a right to (and ultimately delivered as if they had no intention of defending the claim but just wanted to be vexatious) amounted to £100s with continuous demand on my time writing letters etc. My costs conservatively estimated at £800 to date if I include work done. I am only asking for a contribution to the first £230-ish, being my actual disbursements. Turning to your second paragraph, my use of the terms "dead and gone" is a turn of phrase not meant to be legally accurate. It is well understood that a claim knocked out in these circumstances where the claimant did not attend can be brought back for re-hearing. That means the claim once deleted is rejuvenated as if it had not been killed off. However, I have made it plain in applying for the order to be set aside that I have no interest in the claim. I am concerned that the part of the order making me liable for costs is re-examined for the reasons given above. You are saying if I have no interest in the claim I should not be trying to improve the way it was settled. I agree. However, before withdrawing it, I sent their sol the conditions I have mentioned above (minutes of meeting to be certified etc) upon which my withdrawal depended. It was (I guess) too late for him to respond, and my need to cut down on my cost liability prevailed as my first priority so I withdrew without his answer. I see no reason why I should not remind him of my conditions and indeed I have now written in those terms. His client has no moral right to the order they obtained and it is my prerogative to play on that. However, I have set out above that I have a legal argument going in the same direction - there should be a just apportionment of costs. I see no justice in arguing for the defendant that certain things apply because the claim was withdrawn and certain other things apply because the claim was not withdrawn. They can't have every thing their own way, do you agree? In regards to your third paragraph I have probably not explained myself properly. I was removed from patient list without the least consultation or notice of the intention. The practice's own removal policy provides for such a consultation, while the NHS Regulations provide for a warning to be issued in most cases, without which the removal may be unlawful. It is absolutely clear in my mind that if I had made a formal complaint about the removal without knowing the least thing about why they had decided upon it, they would have exploited the information void I was in and invented a complete story about it. I believe they would have compiled documentation appearing to substantiate and corroborate the fiction. Indeed, they have done that to some extent already by answering my questions as if they had been complaints. They have also sent documents I had not asked for, passing them off as if asked for. They have sent information originating at another surgery. They have falsified an existing document by changing its title and passing that off as authentic, although they told me they had done that. It was as if to suggest my requirement for the actual document (patient code of conduct) had been superficial. However, having obtained some information as a result of DPA pressure brought to bear by proceedings, I can now complain with some confidence. You might say I have constrained their liberty to falsify their account of the matter leading to my removal. That matter was I made a patient suggestion for the health and well-being of patients generally - as exhorted by patient code of conducts - but it was received as abusive. You might say I was a whistleblower from the patient community. It is well understood that the duty of care remained until the removal took effect. Therefore the removal had to be clinically justified. It is unlawful to remove a patient for a reason relating to his medical condition. The minutes of meeting prove there had been no discussion of the possibility that the conduct alleged of me was the result, for example, of hyperglycaema. The removal might have been decided because my conduct, as alleged, was deemed to be wilfully disruptive but might equally well have been the typical symptom of a diabetic problem. If it was deemed the former, but had actually been the latter, the removal had been reckless as to its lawfulness. There cannot be a loophole whereby the real reason is related to the patient's health, and therefore unlawful, but the practice puts forward an explanation based on a non-medical premise. It appears to me the practice must eliminate the possibilty of a mistaken perception of the conduct it alleges, and that will usually require consultation with the patient. Furthermore the removal being sprung on me out of the blue in company of heinous allegations that I am an abuser of NHS staff sent me into a plummet of depression, and it had been a reasonable presumption that this could happen. The practice had been treating me at the time of my removal as a patient of long term anxiety/depression. There is effective evidence that I had been stable and of the severe extent of this sudden onset of depression the day after the removal took effect (recording of phone call to NHS Direct.) It is my case that the removal was 1. unlawfully decided and carried out 2. unethical - a breach of the professional code of conduct, and 3. clinically reckless though the practice were still under a duty of care. You will now understand my concern that the minutes of meeting are certified to be true and complete. I am satisfied according to the record that this surgery will have no compunction for cobbling together new minutes that answer all these allegations. Indeed, the "minutes" they have given are admitted not to have been taken during the meeting and there is evidence they had been written some time after the date of my removal. However, I cannot expect to win everything. It would be nice to think I could at least win something. This brings me back to my post above. Since writing it I have learned the HRA provides for reasons to be given in accordance with the right to a fair trial. Without those reasons I have to suspect that as the litigant in person and of lay status, my ignorance will be exploited so as indeed to enslave me financially and even get a civil restraint order slapped on me. I told you I have a suspicious mind! However, my interest is not in compensation, but in insisting on certain standards of decency for the public. That is why I made my patient suggestion in the beginning. I see no reason to stop when the going is so bad... Thanks for your continued interest.

Thank you, steampowered and gaston grimsdyke. First, steampowered, I think you may have misunderstood my reference to further proceedings. These have not been started yet. I needed the access to documentation to be able to make a formal complaint againsy my GPs for a wrongful removal from patient list. If that is not answered satisfactorily I will begin proceedings for compensation, a completely different action. My claim under the DPA is dead and gone, but I cannot be sure that the minutes of meeting discussing my removal as disclosed are the only ones. Hence, there is potential for the grounds of seeking compensation to be fundamentally undermined if undisclosed minutes are magically produced. I want the consent order to be amended to include a certificate of truth to be endorsed on the minutes of meeting. I also want written into the consent order that the contents of a further file will be explained to me under DPA Section 7 . Finally I want a meaningful contribution to my disbursements which are 2 1/2 times my weekly income to date. Now that my application for setting aside has come back to light I have some bargaining power. That is to be heard on May 16 2013 but I am going in blind, whereas the defendant already knows the reason behind the order why my claim was struck out. I do not consider that I am on an even footing in accordance with Part 1. The Human Rights Act provides for a fair trial which by now is established to mean reasons must be given for decisions affecting the citizen's life, and being ordered to pay £ks is such a decision. The claim was effectively withdrawn. I discussed it with the sol in charge of the defence on the phone, and his subsequent letter refers in terms to "your withdrawal", but the barrister was sent to court to strike it out on grounds that the court would not have time to administer it before the hearing. The shortcomings of an under-staffed court are not my responsibility, and I do not believe the judge would have ordered costs on that basis. Something else was said by Counsel. I am satisfied that is why the judge has refused the least explanation. It was not a legally sustainable decision. However, I hear what you say about an automatic striking out due to my failure to attend. However, I had a good reason not to be there. Again, it is not possible to strike out that which no longer exists. Do you see why I require at least a clue as to the reason for the order? Gaston grimsdyke, I do not think it is material if you call it a withdrawal or a discontinuance. I have scoured this site and the internet at large for a definition between the two and it does not appear to matter. Furthermore, their sol stated more than once in writing that since the claim had been settled he would wish for me to "withdraw". I have already said that I did not know this would beget me costs. Furthermore, the system can't be just if withdrawal attracts costs, but proceeding with the hearing of a settled claim also gets costs. That is a no-win situation. It may be for this reason the defendant has upon reflection invited me to consent to a no costs order. Alternatively, it may be nobody wants me to know how come the order for costs was given, so the draft of the consent order is conditional upon my withdrawing the application to set aside. I don't know...I've never done this before! Thank you for your interest.

Sorry I was referring to Part 38 not part 18.

Thank you Gaston Grimsdyke. What you have said is all pretty well understood by me by now. The immediate problem is that I do not know the precise grounds why the claim was struck out. The other side is offering 3 possibilities without actually saying which (if any) applies. 1. I didn't give notice of discontinuance on a form but by a letter. However, a member of the court staff told me to send a letter. 2. I notified an intention to withdraw short of a withdrawal. 3. The court did not have time to administer the withdrawal. However, the other side's sol has proved mendacious. He claimed they were under a court order to attend which was total bish. I have no reason to think he did not exploit the lateness of my withdrawal to tell the judge, who wouldn't have known better, that I didn't care for my claim, that it had no merits, whatever other slander he could think of and persuaded the judge to strike out a claim which had in fact been effectively withdrawn. (I'm sorry I disagree with your analysis that I could not discontinue unilaterally - this does not accord with Part 18) Also the withdrawal takes effect as against the defendant when he is served with the notice irrespective of when the court files their copy. Also, though a form is available, the rule does not stipulate it must be used. If the letter contained all the relevant details it was not capable of being misunderstood. Note, the defendant's sol also made mistakes. He didn't file his acknowledgement of service of claim form in time. An error does not have to be material, do you agree? I suggest if all had been hunkydory at that hearing, the judge would have announced the reason for his order by now. I have asked six times. The hearing of my application to set aside was described as a hearing of an application for discovery - of a document the other side had already disclosed. I asked for it to be cancelled as unnecessary but the application for setting aside was deemed to be a lesser part of the application for discovery and it was struck out. I am given to understand these cock ups happen, but my jiggerypokery radar is deafening. Any thought?

I guess OP means the owner of the post - that's me. In that case, if this post had now been merged with my last thread "Wandered into court costs minefield" thank you to whoever did it. If it hasn't been merged then I'm confused. Yes, it's the same case and very much the same problem. To go back to the beginning, the defendant's sol said since the access to the documents I claimed under the DPA had been given, I ought to withdraw my claim. I did so, thinking it would be unreasonable to proceed with an unnecessary hearing. Didn't know I would be liable for costs if I withdrew. (See last paragraph below for how this came about). Their sol went to the hearing despite knowing I had withdrawn the claim. Naturally I was not there. He asked for the claim to be struck out and that I be ordered to pay the defendant's costs. The judge granted his wishes. That was on 21 February 2013. On 03 March 2013 I applied for the order to be set aside, but not for the sake of the claim being re-heard because it had been satisfied (more or less - see the problem this gives me below). My objective was to be freed from the order for costs. I had to guess why the order had been made because it was not accompanied by reasons. On the face of it how can a claim which has been withdrawn be struck out anyway? Also, the defendant had put me to months of trouble trying to get access to the documents. On the face of it that was unreasonable and he should have been ordered to pay his own costs, possibly even make a contribution to mine. You might say the reasons behind the judge's decision were elusive. The defendant's sol asked me to agree to a consent order for no costs if I agreed to withdraw my application for setting aside. However, this was being asked of me in a peculiar situation where due to an irregularity, my application had officially "disappeared", leaving me with no bargaining power. The defendant did not fully satisfy my DPA claim, and as a result, the further proceedings I intend against him are severely undermined by the unsatisfied parts of the claim. I would want to negotiate that satisfaction into the consent order which is why I need bargaining power. Since 12 April 2013 I have been trying to bring back the disappeared application by correspondence with the court and to get the reasons behind the order before the application magically reappears and is brought back on for hearing without my having the benefit of the reasons for the order. There has been no effective communication from the court until now. Today the application had been brought back to be heard in 8 working days time but still no reasons have been given upon which I can build an argument in favour of the setting aside. I have asked six times for the reasons for the order to be given me, but in vain. Add to that the number of times I have asked defendant's sol on what grounds he applied for the order, and on what grounds he will fight my application to set it aside. They won't tell me. This is is one shy court. I am still guessing how to argue against an order that will severely affect the rest of my life. I am on benefit of £100 per week. I can't possibly pay £ks before I die and the prospect of trying to cope with this debt is dismal. I have made an official complaint to the court, but it becomes clear that I will be forced to argue my side before the complaint is answered or/and the reasons I need provided. There have been a number of irregularities to do with the administration of my application for the setting aside that confirm my worst suspicions that I am going to be rail-roaded through this system and come out with an even bigger bill for costs. I am clear in my mind that nobody wants this matter to be heard when I am in possession of the facts but me, and if I will not accept the defendant's consent order the way they want it I can look out. I am going to apply for a postponement of the hearing but it is unlikely to get dealt with in the short time that's left. I expect the same thing will apply to my wanting the trial transcript. The court will have its way and rail-road me as I have said. Yes, I am pessimistic. There have been too many mysteries about this case for me to believe justice is in the process of being done. You might ask, if you are so short of money, why did you go in for a court case that could have turned expensive, then? The answer is I didn't. I bought the stupid book that said my claim would be a part 8 claim that might be allocated to the small claims track at Allocation Stage. I thought it meant either at that stage or some other stage. How was I to know, unless the author made it patently clear to us beginner divies, that there was an even stronger likelyhood that the Part 8 claim would be a multi-track claim with liability for costs and remain a multi-track claim. What was written appeared in a book titled "Small Claim Procedure in the County Court". How was I to know that the reference to a part 8 claim was a reference to a completely different set of rules? I read the remainder of the book very thoroughly, thinking I would be in the small claims court, but everything I understood from that book was irrelevant. By the time I found out, and that I had been lumbered for serious £s it was too late. Anything anyone can say, even "You dumb idiot" will be read with interest.

A court order was made that my civil claim be struck out and an order for costs against me for £ks but I don't know the reason because I was not at the hearing. I have asked the court for reasons for the order but they won't give them. I have to go blind into the hearing of my application to set aside the order, which is based on the fact that I had withdrawn my claim; therefore it could not have been possible to strike it out. Two questions: (1) Is there a right to be given reasons for a decision which affects you made by a court? For example, how strong is the human right to a fair hearing in this regard? (2) Transcript of the hearing. Has anybody any views about this? Is the system reliable? I am very suspicious of this very shy court's motives...the hearing is on 16 May 2013. Help urgently needed.

Hi, steampowered! I went to the court today and a staff member got the file out and answered my questions. He seemed surprised that since 03 March 2013 my application to set aside has not been issued. He said though, that the hearing that had been booked was for discovery and setting aside, so I suppose that was the notice being issued on 08 April 2013. On 09 April 2013 I wrote back (1 page) and stated that the application for discovery had become unnecessary but the application for setting aside still stands. If that wasn't clear enough I wrote again on the 12th (three pages and a fax cover sheet) to say the defendant wanted to settle out of court so I wanted a postponement. But both applications (discovery and setting aside) were withdrawn by order of the judge instead. I am amazed that the administration can be so haphazard. However, I am guided by your intimation of the potential for cock ups in the court system and your reassurance that the judge will not have been familiar with the progress of my claim at the time of ordering it withdrawn. I was seriously thinking of filing an appeal on grounds of irregularity. That would not have made me popular in the court so thank you yet again for saying enough to save my bacon! (That will go with the spagghetti...) Kindest regards.

Thank you again, steampowered. Yes, I was suspicious because of a feeling that the witness statement had got to the other side (I enclosed a copy batch of all the documents for the court to issue to the defendant with the notice of hearing the set aside application) but the court had not issued the notice of hearing the set aside. I don't quite understand that. If the copy documents have been issued as if the application was alive and well, I have to ask myself why has the application itself not been notified for hearing? If it was mistakenly thought to be an application for discovery (despite having the right header on all 8 pages), why has the hearing now been cancelled instead of re-named, and/or a little explanatory letter from the court. The order cancelling the hearing for discovery was issued by the same judge who had heard the original claim in my absence and ordered costs against me. I would hate to think he is acting for personal reasons, namely, trying to avoid admitting he had jumped to the wrong conclusion or something like that. If he wanted to do that he could arrange the application for setting aside his order to be heard as something else and by cancelling that he would be trying to wipe out the whole shooting match. Well...I said I had a suspicious nature. Thank you for your advice to go to the court buildings and speak in person, but I have an awful feeling an attempt is afoot to stitch me up. In such cases I would feel more comfortable having things written down so that I can rely on them if I need to make a complaint. I think I need a representative to get beyond this stage in one piece. I am vulnerable due to being a lay claimant with no witnesses on my side. That is why I am very grateful to have had you to bounce my ideas off. Thankyou very much again.

hello again, steampowered. thank you for your interest As you know, the issue I raised at the beginning had got complex because of my amateur status. I had let myself wander into a pretty state of affairs and I am ever so obliged by the interest you have taken which has put me back on the straight and narrow. In fact, I am pretty well gob-smacked at the turn of events in that the defendant is willing to let me off enormous costs. I couldn't have done it without you. Yes, I did write to the court (and copy to the defendant's sol) that I thought there had been a mistake. The court's answer had been to send the same mistaken notice again, notifying the hearing for discovery on 17 April 2013 again. This had put me on alert for an attempt at jiggery pokery, especially as on the same day I heard from the other side's sol about the consent order which they had drawn up and enclosed for my signature. Again, everything is to be done in a hurry and the fact is I don't do well like that. I therefore wrote for a postponement yesterday. I also complained, suggesting all was not as it should be and indicating sufficient dissatisfaction that I had warned of having an enquiry made of the proceedings if things are not done with more clarity. I pointed to the court's omission of answers to both my request for reasons for the order made against me and my request for an extension of time while that explanation was being prepared. Today I got an order that the application for discovery listed for 17 April 2013 be withdrawn. The matter is still ambiguous and I shall have to write again to ask, is the application for discovery standing in the place of the application for setting aside. If so why has the latter been ordered withdrawn. My suspicions were aroused by the close proximity of (a) my filing of the witness statement (b) the defendant's seeking the consent order, and © the notice of hearing for discovery. The court has not acknowledged receipt of the witness statement and there has been no issue of the application for the setting aside since I filed it back on March 3rd. Such an issue of such a notice has neither been prompted by the filing of the witness statement on April 4th. Yet the defendant seems to be responding to the witness statement, which makes a powerful claim for the defendant to pay my costs of £800-ish. (I included a draft order too!) Do you see why I am suspicious? Could the defendant have been given wind of the strong push for my costs on some kind of chinese grapevine? Hoping to hear from you... By the way I will be happy to give you a copy of my witness statement if you have a secure address. It is 8 pages long and obviously contains identity of defendant and my allegations against him.