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Jamie-Law
Jamie-Law, Solicitor
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In a money Claim, if a judge strikes out the Defendant’s

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In a money Claim, if a judge strikes out the Defendant’s Counterclaim some time before the trial, is the Defendant liable for the Claimant’s legal costs associated with the Claimant’s preparation to defend himself against that Counterclaim?

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Yes. But just on the counter claim.

Can I clarify anything for you about this today, please?

If not, I would appreciate a 5-star rating for my answer. If you need anything further I am available for a follow up at no extra cost.

Customer: replied 12 days ago.
Thanks Jamie. What categories of Claimant's expenses are payable to the Claimant under these circumstances? I would imagine: whatever he might have paid to his solicitor . Anything else?

Yes. That is it. Direct costs associated.

Does that clairfy?

Customer: replied 12 days ago.
Thank you. One other related question:I happen to know that the solicitor, who was representing the Claimant until April 2018 (now the Claimant is a LIP), is his long-time friend, therefore I expect that they likely have a friendly arrangement whereby the Claimant would have NO legal expenses to his lawyer UNLESS it would be ME who is forced to pay (which appears to be the case, given that my counterclaim has just been struck off).Can I use the above in any way as grounds to dispute the amount of the legal fees I’m likely to be forced to pay to the Claimant because my counterclaim has been struck off?Furthermore, the Court’s order that I just received, also notifies that the trial will take place on 2 July. One thing I find strange: in the directions questionnaire both parties had agreed for this case to be referred to the Small Claims Mediation Service; and the directions questionnaire said that our details would be passed to the Small Claims Mediation team who would contact us to arrange an appointment.Therefore I had been expecting to hear from the Small Claims Mediation team BEFORE the trial is scheduled, but that’s not what happened: the trial is now scheduled, but I NEVER heard a peep from the Small Claims Mediation team. I WOULD like to do mediation first. Is that still possible?

Only if they were instructed and on record can fees be claimed. Any fees claimed are subject to detailed assessment if not agreed.

The Court may or may not order mediation. But if a trial has been set, you must go

Does that clarify?

Customer: replied 11 days ago.
Thank you. One more question:In this claim where I’m the defendant, one of the issues I’ve identified (that further strengthens my defence if my understanding of it is right), is that I am even *more obviously* not liable if I legally didn’t opt-in to his *updated* T&Cs.The key question I seek answer to:
In an existing business relationship, *what* constitutes the Client re-opting-in to the service provider’s updated T&Cs? Would you be able to point me to the specific law that governs this?In the nutshell, the Claimant (he was the provider, I was the client) alleges that I didn’t cancel the booking of his services 28 business days before that date. The original T&Cs (to which I clearly opted in) had a 14 day cancellation clause.The way I understand law, all signs point to me being still bound by the old T&Cs because I hadn’t done any of the actions that might be interpreted as me opting in to his new T&Cs.So I need to be able to prove that I hadn’t opted in to the more recent T&C; and for this I need more detailed information what legally constitues re-opting-in to the service provider’s updated T&Cs.If you think you need more details, here is the essence of the claim:
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The the current Claimant was my expert witness in a medical negligence lawsuit where I was the Claimant.He was paid by me to write a couple of medico-legal Breach of Duty reports in May/June 2014. Obviously, the fact of me instructing and paying him in 2014 constituted my implicit acceptance of his 2014 T&Cs.Then we had almost no communications for almost 3 years.On 16.03.2017 I sent him an email informing him that the trial had just been scheduled for 22.05.2017, but I was unlikely to be needing him to appear, because the defendant was not denying Breach of Duty; and I was nearly certain that the case would be settled without going to trial. But nevertheless, since he was officially one of my experts, I needed to ask him if he had any schedule conflicts during any of those days (for the purposes of filling out the “experts availability schedule” section of the Pre-trial checklist that was soon due for submission).His response to that (on 17.03.2017) was:
“I can be available on those dates but will require notice either way as per our terms and conditions. Needless to say I will require confirmation as soon as possible to block those dates out of my diary and make necessary travel arrangements.”
And he also pasted his 2017 T&C’s at the end of the email.I didn’t respond to that email, because it was clear to me that if I decide that I do want him to come, I would let him know as soon as I know. And if he has questions before that, he can always email me.On 24.04.2017 he sent me an email that starts with:
“As per your instruction notification in your email of the 16th March we note that the trial date in respect of your case is set for the 22nd May until the 25th.
We advise you that as per our terms and conditions we have , last week on day 29 of warning now cancelled all our existing appointments for those dates.
We draw your attention to our email of the 17th March where our terms and conditions of instruction were set out and in particular items 2.11 and specifically 5.10.”To this, my immediate reaction was:
“Did I understand correctly from your below email that you already cancelled all your appointments 4 weeks from now??? With all due respect, I must point out that you’ve “jumped the gun” by making certain assumptions that I thought I had made very clear in my 16 March email that you should check with me about before initiating any actions that might incur costs to anybody”So my main line of defence is that I wasn’t under obligation to cancel his booking because I hadn’t booked his courtroom appearance in the first place (and he had explicitily affirmed that in March).And my secondary line of defence: I explicitly told him again that his appearance was not needed about 20 business days before the date (hence would still be in compliance with the 14-day cancellation period of the old T&Cs even if I had actually booked him).

What are you asking me?

Customer: replied 10 days ago.
In an existing business relationship, *what* constitutes the Client re-opting-in to the service provider’s updated T&Cs? Would you be able to point me to the specific law that governs this?

it would be a matter of contract.

It depends on the intent of the parties and whether there was an intention to create a legal relationship.

Customer: replied 10 days ago.
I'm talking specifically about the cases where a business relationship ALREADY exists.I can think of 2 types of actions that would indicate client’s legally-binding acceptance of *new* T&Cs:
1. The client explicitly confirming their acceptance of new T&Cs
2. After being made aware of new T&C’s, the client ordering more work from the provider (which I think indicates implicit acceptance of the new T&C’s, as in “I know your new T&Cs and I’m OK with them, therefore I continue to do business with you under the assumption that from now on the new T&C apply”).
Customer: replied 10 days ago.
there is no contract, just the provider's T&C's.

Terms after contract are not binding.

Customer: replied 10 days ago.
Not sure I understand what you mean by this. We didn't have a contract. The only legal document governing our working together, was his T&Cs, which he modified a few years after I engaged his services.

It could be argued that you accepted those terms.

It would be a matter of argument before a Judge.

Customer: replied 10 days ago.
Isn't there a specific piece of law that spells it out a bit more specifically? Surely there has to be!

There may be cases, but 99% of cases are not reported. Even those that are only high court decisions are binding.

Customer: replied 10 days ago.
is there ANY text - whether legislative or case law - that I could look at?

You can find case law at:

http://www.bailii.org/

Customer: replied 8 days ago.
Looks like a comprehensive database, but the searching facilities not very sophisticated. I tried a number of reasonable search terms, but nothing relevant came up. Isn't there a piece of law (that then gets "modified" in time by case law) that spells out explicitly the basic principles of when T&C apply vs not? I have difficulty imagining that not existing...

There will be I imagine, but sadly I can’t reaearch case law for you. That is outside the remit of this site.

Customer: replied 7 days ago.
of course I wouldn't expect you to do the searches. But *outside* case law, isn't there any legislative or regulatory law that gives reasonably specific rules governing T&Cs? Or are you saying that T&Cs are governed *exclusively* via case law? I know that GDPR is quite specific re: what kinds of users' actions mean said users had opted in vs not, but I can't use GDPR, because the events in question took place 14 months before GDPR came into effect (March 2017).

Contract is common law. So governed by cases.

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