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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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Can I base an appeal against a judgement in a Preliminary Issues

Resolved Question:

Can I base an appeal against a judgement in a Preliminary Issues hearing on the basis that the hearing was conducted by the judge in such a way that my case was compromised?
I am the defendant. The Claimant was allowed to present opening statements for over 2 hours - my opening statement was curtailed by the judge after 20 minutes and was not completed.
I was not allowed to present my closing statement although the claimant presented his in full.
The preliminary issue in question was a matter of a breach of a contract that protected me from the action the claimant was pushing. Early in the trail the Judge told me that my case was one of fraud (which was not the basis of either my witness statement or Skeleton Argument and pleadings which had been prepared by solicitor - I represented myself as a litigant in person during the hearing) which led to me making a case on 'the hoof'. In the judgement the judge then criticised me for the fact that my defence was not aligned with my witness statement and Pleadings.
Can I also either together or seperately appeal the costs award which amounted to over £42,000 against a £71k claim. The judge refused to consider the appropriateness of these costs and refused to view documents that evidenced that the defence had attempted to enter into arbitration which was rejected by the claimant.
I have 24 hours to file my application for Leave to Appeal so some swift views would be appreciated
Simon
Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.
Alex Watts :

Hello my name is ***** ***** I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply as this is not an ‘on demand’ live service, but rest assured I will be giving your question my immediate attention upon return. There is no need to wait here, you will get an email when I reply.

Alex Watts :

Did the preliminary hearing have any effect whatsoever on the Judgment please?

Alex Watts :

Is this referred to in the Judges reasons?

Customer:

The judgment was exclusively on the preliminary issues -

Customer:

This was whether or not there was an agreement/contract in place that protected me from being pursued by the claimant for the debt

Customer:

There were two interpretation sod the contract - mine and theirs - Mine protected me full stop, theirs protected me only if they failed to get a satisfactory settlement from the other defendant. My case was that even in their interpretation they breached the agreement as they reached a full and final settlement agreement with the second defendant (an agreement initiated by the claimant) and they did not wait until this was completed before they pursued me - pursuing me in parallel (via an old address they knew i no longer occupied) rather than sequentially. My case was that there was was a fraudulent misrepresentation of the contract as they always intended to pusue in parallel, thus giving me no protection, although the agreement clearly indicated they would wait to see the outcome with the other defendant.

Customer:

By the way the substantive case is based on a breach of 216/217 of the insolvency act for which i have a robust defence. However I now face a bill of approx. 65% of the claim value in costs just for the preliminary hearing

Alex Watts :

You can appeal if:

Alex Watts :

1) There has been an error in Court procedure

Alex Watts :

2) There has been an error in law

Alex Watts :

3) The decision was unreasonable

Alex Watts :

If you are saying you were denied allow presenting opening statements then this could be a breach of procedure and also Article 6 Human Rights Act

Alex Watts :

You can seek leave to appeal on those.

Alex Watts :

But you need to show it would also have made a difference to the outcome.

Alex Watts :

If the Judge got it wrong you can seek leave to appeal and also have the case reheard.

Alex Watts :

Can I clarify anything for you about this today please?

Customer:

does this also apply to my closing statement. not being able to outline my case in detail at the end was probably most damaging. the judge did not address a number of elements of my case in the judgement which he ignored in the closing submission

Customer:

if i appeal on these grounds and ask for a retrial, but loose the appeal on these grounds can i appeal the cost award separately or can i include the costs award in a single application for leave to apply

Alex Watts : Yes you are entitled to make closing submissions as well.
Alex Watts : You ask for costs included in the appea
Alex Watts : Does that help?
Alex Watts : appeal.
Customer:

I want to appeal the cost order made against me at the time of the judgement - i had expected costs to remain in the case as the substantive issue is yet to be heard (as they have in three previous hearings) but a cost award of £42000 was made against me although the total value of claim is only £71k - i had also approached the claimant in an attempt to initiate arbitration before the hearing but this was rejected - can I appeal this as a part of the judgement appeal or do I appeal separately?

Alex Watts : Yes you can appeal the order as a whole including costs.
Alex Watts : Does that clarify for you?
Customer:

Yes thank you!



Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience: Solicitor with 5+ years experience
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