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Jo C.
Jo C., Barrister
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Experience:  Over 5 years in practice
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In a pre-action disclosure application, agreement was reached

Customer Question

In a pre-action disclosure application, agreement was reached to withdraw the application with no order as to costs. I issued a brief statement to the court and advised the withdrawal and agreement to waive costs. The barrister (against whom my application was made) objected to the statement and claimed it did not represent the facts. As it did accurately reflect the facts I refused to amend the wording and he then objected to my withdrawing the application and claimed £1600 costs.
I believe this is a simple matter of contract law upon which the barrister retrospectively attempted to unilaterally add a term to the contract however the judge found that by making the statement to the court he said I had imported a term into the the contract. I have appealed but permission was refused.
The judge that refused permission was the same judge that sat in a case with this same barrister as prosecuting counsel and convicted me of a speeding offence for which no information had been laid, nor summons issued, and no evidence issued that was time barred by statute. I appealed that decision and he refused an appeal and ordered court staff not to speak to me (unbelievable but true) I then issued an application for JR and CPS then applied to quash the conviction. Judge was not happy but had no option but to comply. The pre-action relates to unlawful disclosure of information from that hearing that was at no time in the public domain and was highly sensitive.
Was the judge right or did the barrister breach the contract - he had full team representing, I am a litigant in person of limited means but not entitled to legal aid. I also believe there was a conflict of interest and the appeal judge should have recuse himself. What are my odds of winning a JR?
Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.
Alex Watts :

Hello my name is ***** ***** I will help you with this.

Alex Watts :

Was this a civil action or criminal please, as I am slightly confused?

JACUSTOMER-chti6k6i- :

From your profile I do not think you have the right background. This is contract law and should be answered only by someone with experience in contract law which does not appear to be your area of expertise. To clarify for someone with the correct expertise, the pre-action is in the civil court.

Alex Watts : Yes. I deal with contracts all the time in the litigation department. I am in the county court 3-4 days a week
JACUSTOMER-chti6k6i- :

and your answer?

Alex Watts :

I have asked whether this is in the civl Court, the application as you refer to the CPS?

JACUSTOMER-chti6k6i- :

And I told you it is a civil case, that means County Court. The barrister was acting on behalf of the CPS at the time he processed documents for a purpose other than that which they were supplied. I have a case in County Court against CPS which has just passed strike out however before I could file that claim I needed to ascertain certain facts hence the pre-action disclosure application against the barrister CPS refused to contact him to confirm the facts and he refused to co-operate so I had to issue application for pre-action disclosure. My belief is that when I win my case against the CPS I will be able to recover the costs against me on the pre-action but I still believe the court was wrong in contract law to award costs and the appeal judge should not have sat in the case.

Alex Watts :

Yes but I was a little unsure where the application was when you referred to the CPS.

Alex Watts :

Did you have permission refused on the papers or at an oral hearing?

JACUSTOMER-chti6k6i- :

at an oral hearing. The judge who heard the case it would seem did not decide on the appeal it was referred to the judge who sat in the road traffic hearing in the Crown court with this barrister as PC. He ordered I file the evidence and he refused permission at an oral hearing. As such I believe the only rut now is JR but before I file an application I want to be sure about the relevant law. I cannot see how making a truthful statement to the court can be deemed adding a term to the contract and I believe this judge should have recused himself form the case. He had blocked an appeal in another case claiming the sealed order had not been drawn but it had been issued by the court two weeks before he made this statement.

Alex Watts :

On what basis did your opponent object?

JACUSTOMER-chti6k6i- :

When I notified the court I said he had confirmed there was no written documentation between him and police and that there was no written evidence to support his false allegation of severe memory loss. He objected to the latter saying he had not confirmed that and nor had I asked it. He had been asked the grounds upon which he had made the allegation in the application and that had been further qualified in the exchange of communication.His solicitor alleged it was in the forensic reports supplied for the purpose of reasonable adjustment in the Road Traffic matter. The fact is there is no mention whatsoever of any degree of memory loss in any of the reports and therefore if that was the only grounds he disclosed in my view I am entitled in the full knowledge of the content of the reports to make the statement I did that there is no written evidence to support his false allegation of severe memory loss. ented the accurate situation by using the words he had confirmed there was no evidence to support his false allegation of severe memory loss. This was between me and the judge in an application to grant permission to appeal. The judge said he was satisfied that having objected to the wording used that

JACUSTOMER-chti6k6i- :

sorry pressed the button fro new paragraph please discard from 'this was between me and the judge onwards. The defendant did not attend the hearing for permission to appeal and stated that he was satisfied the defdt had given ample time for me to withdraw the statement. I did not do so because it was an accurate reflection of the facts. The judge also referred to an old solicitors letter which had referred to memory issues. I have difficulty recalling even simple words when anxious but they do not affect fitness to drive and most certainly do not amount to memory loss of any degree, the issue is this barrister alleged I suffer severe memory loss. Permission to appeal was refused. My view is this was a simple contract I withdraw he does not claim costs there were no terms or conditions applied. I believe he has unilaterally and retrospectively added terms to the contract that were not agreed. I cannot see how making a truthful statement is adding any term to the contract.

Alex Watts :

On what basis do you seek a JR, rather than further leave to appeal?

JACUSTOMER-chti6k6i- :

The judge told me there was no right of appeal to his decision. He told me that after the Road traffic matter and I had to apply for JR to have his decision overturned. I wrote to the judge restating the facts and I have a response saying JR is my only option

JACUSTOMER-chti6k6i- :

I had originally applied for the judgement to be set aside on the basis I had only been told the hearing had not been vacated the day before the hearing and did not have time to organise or issue evidence. It was a 30 minute hearing of which the judge spent 10 minutes asking how he as supposed t read the evidence. He awarded costs anyway so I felt set aside was more appropriate as not having had time to prepare, or the judge not properly considering all of the evidence in my view is reason to set aside rather than appeal. The court staff returned the application saying I could not apply for set aside. I reissued it with the reasons and I was told again I had to appeal. By this time I had to make an out of time appeal, I was granted the out of time but ordered to file the evidence and a hearing listed to decide if permission would be granted. It was a DDJ who sat at the original hearing but HHJ that heard the application for permission to appeal which I found odd too, my thoughts are it should haven been heard by a DJ.

Alex Watts :

Did you file a later permission to appeal notice?

JACUSTOMER-chti6k6i- :

The case was heard by DDJ. As the hearing was only 30 minutes and I only found out at 4.30pm the day before the hearing that it had not been vacated I did not have time to file the evidence. The judge spent 10 minutes asking how he was supposed to consider the evidence I told him that had been my point exactly and had the night before asked for an adjournment (refused). The judge failed to adjourn and entered judgement. I applied for set aside on the basis he had not properly considered all of the evidence. Court staff said I had to appeal and I asked them to put the matter before a judge then I was informed by court staff I had to appeal but there was no judge order only a letter saying t had been put before a judge. By this time I was out of time and had to seek permission for a late appeal (granted) but the judge (a HHJ - circuit judge who is head of civil at the court in question ) said I had to submit the evidence and the hearing he presided over was to seek permission to appeal. He refused this and told me I have no further right of appeal. I then issued a letter restating the facts asking him to reconsider and I have received a response from the court saying my only option was to apply for JR.

JACUSTOMER-chti6k6i- :

Sorry I did not see the notes I left earlier I have repeated myself but nonetheless this is the full account of what happened therefore it is clear any further appeal will fail and my only option is JR.

Alex Watts :

On what basis did the Judge refuse the appeal? There must have been reasons?

JACUSTOMER-chti6k6i- :

He said there was no prospect of the appeal succeeding and that he was satisfied they had given me ample time to withdraw the statement they objected to. I refused to do so on the basis it was an honest summary of the facts and to do so would imply I had made a misleading statement to the court, and the agreement not to claim costs had not been conditional upon any specific wording being used and in any event if they had any such preference for wording they could have drawn up a consent order or they should have clearly stated those terms before I delivered my consideration.

Alex Watts :

Yes I am sorry to say your only option is for a Judicial Review of the decision

Alex Watts :

For this you have to show that the decision was wrong in law (which it can't be) or the decision was unreasonable.

Alex Watts :

You would need to show the decision was so unreasonable that no reasonable Judge could have made it.

Alex Watts :

But the bad news if you lose the JR then you will be responsible for the costs of HMCTS

Alex Watts :

I am sorry to say that this is likely to be far more than £1,6000

Alex Watts :

£1,600

Alex Watts :

JR costs could easily be £5,000 - £10,000

Alex Watts :

But yes you can consider JR but there is a pre action protocol to follow

Alex Watts :

https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_jrv

Alex Watts :

Can I clarify anything for you about this today please?

Alex Watts :

If this answers your question could I invite you rate my answer before you leave today.


If the system won’t let you please click reply.



Please bookmark my profile if you wish for future help: http://www.justanswer.co.uk/law/expert-alexwatts/

JACUSTOMER-chti6k6i- :

Yes I already knew that but was the judge right to say I had imported a term into the contract or am I right to believe they added a unilateral and retrospective term to the contract and that the particular judge that heard the permission ot appeal should not have done so?

JACUSTOMER-chti6k6i- :

Why do you say the decision cannot be wrong in law?

Alex Watts :

The decision can't be wrong in law because the Judge is entitled to make that decision according to the rules.

Alex Watts :

In any event it is wrong a permission hearing is in front of the same Judge that refused, it should be a different one

Alex Watts :

Does that help?

JACUSTOMER-chti6k6i- :

No. I asked about the contract law as I believe the decision that I imported a term is an error of law I believe they unilaterally and retrospectively added a term to the contract. The fact is making a decision without hearing all of the evidence is no in accordance with the rules and the appeal judge has made an error of fact but I also think an error of law. That is why the contract law is relevant so far you have not addressed the question of the contract law.

JACUSTOMER-chti6k6i- :

I have brought judicial reviews before and will do so on this occasion if there has been an error of contract law, That is the question I asked relating to the breach of contract. So far you have asked a lot of questions about the process but have not answered the question I asked which as I stated from the start relates to contract law.

Alex Watts :

No, a term can be imported. It can be added by the Court. People ask Courts to do this all the time.

Alex Watts :

The Court has power to open a contract, amend terms, delete terms, or even add terms.

Alex Watts :

Does that clarify?

JACUSTOMER-chti6k6i- :

No. The court said I had imported a term to the contract but my argument is they did. It would be wrong for any court to import a condition after one party had delivered on the consideration.

JACUSTOMER-chti6k6i- :

Courts deal with contract disputes but they can only adjudicate on what is in the contract to start with. That is where I think the court have erred. If you believe otherwise then please send me an authority (case law) to check.

Expert:  Nicola-mod replied 2 years ago.
Hello,
It seems the professional has left this conversation. This happens occasionally, and it's usually because the professional thinks that someone else might be a better match for your question. I've been working hard to find a new professional to assist you with your question, but sometimes finding the right professional can take a little longer than expected.
I wonder whether you're OK with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.
Thank you!
Nicola
Customer: replied 2 years ago.

I can wait a little longer but as I made clear to this expert this is a contract law matter

Expert:  Nicola-mod replied 2 years ago.
Hello,
We will continue to look for a Professional to assist you.
Thank you for your patience,
Nicola
Expert:  Nicola-mod replied 2 years ago.
Hello,
I apologise as we have not yet been able to find a Professional to assist you. Do you wish for me to continue to search for someone to assist you or would you like for us to close your question at this time?
Thank you for your patience,
Nicola
Customer: replied 2 years ago.

please close my question and refund the payment

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