District Judge R James on "Set Aside" - CPR 3.1(7)

My Skeleton Arguments

I may not be entitled to publish David Curwen's "Skeleton Arguments"... the ones that claimed D J James (the Regional Costs Judge) did NOT have the power to make the order I was seeking ... but NOBODY can say I don't own the copyright on THESE... which argue that he DID have the power.

The parts directly relevant to CPR 3.1(7) - Set Aside - I will colour in blue but you may need to read the black parts too - or skim :-)

OK, these might have been more slick if written by a professional... they would CERTAINLY have cost a LOT more... but they WERE "good enough" - and this may be seen as something of a victory for the Litigant in Person (LIP).

Enjoy... use for your own purposes, free of charge.  If you WANT a copy of Curwen's arguments (which would then make perfect sense of these) then please drop me a line.  Note: I have hidden the name of FDC Liar's Client and the case numbers.

1. The Judge HAS the power under CPR 3.1(7) to make the Order being sought in my Application dated 25^th April 2007
2. FDC Law asserts that there was no agreed hourly rate and so effectively they can charge what they like. I assert:-
1. This is impossible. In a family case the rate MUST be determined BEFORE the mandatory Form H is filed if the solicitor is charging on an hourly basis. It is not possible to complete the Form in accordance with the FPR without FIRST determining the rate.
2. The hourly rate was £80.00 / hr. No evidence for any deviation from this exists.
1. That the rate was agreed with Xxx. Xxxxxxxx is evident in the bill of June 2004 which FDC Law produced and Xxx. Xxxxxxxx paid.
2. It is evident in the amounts claimed in the 3 Form H’s
3. It is evident in the Time Ledger Printout – see 2^nd Statement and the Statement of Nigel Long
3. D J Brookes was misled over the hourly rate in December 2004 as was H H J Cardinal in August 2005.
4. It is not open to a solicitor in a family case to double the rate charged 15 months AFTER an Order for costs has been obtained.
3. FDC Law asserts that the Indemnity Principle has not been breached. I assert:
1. Even if we ignore the hourly rate (which STILL applies), FDC Law could not have enforced a bill for £16,000 against Xxx. Xxxxxxxx since they had AGREED A.R. costs, 12 month earlier, in their letter to her of 15^th October 2003. This document alone restricted them to under £6,000 total.
2. The solicitor’s signature regarding the Indemnity Principle was a lie which misled D J Brookes and H H J Cardinal.
3. The Order of D J Brookes breaches the Indemnity Principle by between £3,000 and £5,000. It MUST be set aside.
4. All costs, incurred by BOTH Parties, since July 2003 are as a direct result of FDC Laws misconduct. An extensive Wasted Costs Order is essential in order to do justice between the Original Parties.

Notes:

1. It is plain from the Statements received following the Order of 26^th October 2007 that Xxx. Xxxxxxxx has chosen to remain silent – the only responses being from her solicitor and their costs draughtsman.
2. It is plain from Mr. Curwen’s Skeleton Arguments that FDC Law is hoping persuade the Court that the Order Sought cannot be made for purely "technical" reasons.
3. Beyond the brief and unsubstantiated assertions that the Indemnity Principle was not breached, and that their costs were "reasonable", (there is no legal argument or supporting evidence for either), no other "defence" is raised against my Application.
4. It would seem that firstly I must deal with the "jurisdiction" argument. In the hope of Clarity I will refer to Mr. Curwen’s paragraphs one at a time, following his numbering.

Whilst I would write this section rather differently… for reasons of brevity, I will NOT argue this save on one point – Paragraphs 8 and 9 (My Application of 24^th October 2006).

Paragraph 8:

The Application of 24^th October was NOT a "Set-Aside" application. The words "set aside" do not appear anywhere in the Application – indeed, I only learned that such a thing was possible on 30^th March 2007. The Application does not reference particular Law or Rules, but was made under the belief that the Court MUST exercise as Supervisory Duty over solicitors – it’s own "officers".

The Application (however badly conceived, or technically incorrect) was made as my "defence" against Claim Number XXXXXXXX and the Court dealt with it (dismissed it without hearing) under this reference. I believed (and STILL firmly believe) that if a Court, makes an Order which breaches both Common Law AND Statute, then there MUST be a remedy – a way for the Court to correct its error. This would seem fundamental to the Overriding Objective – "Justice must be done and must be SEEN to have been done" - and it is a basic Human Right. However, I must accept (as my solicitor warned in February 2007) that the Court could not consider the Application in such form filed as defence against an Application for a charging Order

The Order dismissing the Application clearly shows that the Court did not consider the Application.

Paragraph 9:

Mr. Curwen Asserts "D J Cooke refused the Respondent’s application on the basis that it was not open to the Court to go behind those judgements…"

What the District Judge actually said was "It is not open to the Court in considering the application for a charging order to go behind those judgements…."

The Order of 23^rd March has me correctly identified as "Defendant" and not "Respondent". It was relevant to XXXXXXX and not XXXXXXXX.

Paragraph 12:

No conflict. On 26^th October 2007, District Judge James said words to the effect "it would seem I have the power to deal with this" – this was after some debate with Mr. Curwen and at-length reference to the CPR and the White Book.

Paragraph 13:

Curwen’s Personal Rules, perhaps? I can find no relevant reference, anywhere in the public domain, to CPR 3.1.9. I say it doesn’t exist in any legal context.

In paragraph 49 of Enron V Clapp the judge does note the wording of CPR 3.1 (7) – this was a case where there had been a default judgement, a very specific type of judgement to which very specific rules apply (CPR 12 and 13) – he went on to say… "In my view CPR Pt 3.1.(7) does not embrace the current situation. Even if it does, for the reasons I set out in the next paragraph, I would not exercise my jurisdiction under that Rule." He then goes on (in paragraph 50) to explain. NONE of the factors he cites apply to this case…

1. After hearing full argument from both sides, another judge (Langly J) had already refused to set aside the default judgement and an order on that had already been drawn up. (For us the "Langly J equivalent" will be on 7^th March 2008.)
2. The defendants already had an appeal pending in the Ct. of Appeal.
3. There were NO "exceptional circumstances" (as there ARE in this case)

Paragraph 14:

Mr. Curwen seems intent on splitting hairs between "judgement" and "order".

In Collier V Williams – para 39 –

I state in my Application at 1.3 – "District Judge Brookes would not have made the Order if he had seen the information and documents which have since come to light…" (i.e. he was misled by material non-disclosure)

Logically… if a judge is misled then his judgement is impaired and any order (a product of his judgement) stands little chance of being right. To divorce the two, as Mr. Curwen suggests, is clearly wrong.

Mr. Curwen contends that there is no provision to set aside a judgement which is not a default Judgement. There is of course CPR 3.1(7) … on which subject…

Paragon Finance - Neutral Citation Number: [2003] EWHC 2834 (Ch) - Para 74

Collier v Williams et. Al. – Para 119

Collier v Williams et. Al. – Para 39 (quoting from and agreeing Lloyds Inv. Scand.)

We can view CPR 13 as a minor rule for a specific subset of Orders. CPR 3.1(7) is superior - a general "catch-all" which can be applied to ALL Orders. All Rules must of course be interpreted in accordance with CPR 1. I was assured by the Judge and Mr. Curwen, on 26^th October, that there was now no route of Appeal. If that is the case then it would be a serious breach of Article 6 (Human Rights) if a Court made an Order which was unlawful and there was no means for the Court to correct it’s mistake. CPR 3.1(7) IS intended as one such means.

Paragraph 15:

There is no issue, really. ALL say that CPR 3.1(7) is NOT a "backdoor to appeal".

It is plain from my application that it is the NEW evidence that is important here and that the Court was misled. Appeal is the WRONG platform. Set-aside is correct.

No issue. See above. A lower figure that does NOT breach the Indemnity Principle.

Paragraph 17:

CPR 12 and 13 clearly serve a purpose. They deal with default judgements. The idea of a "hearing", where both sides put forward arguments, is probably 1000’s of years old. It is not surprising that there are separate rules surrounding "default judgements" and the rights to set them aside and have a traditional "real" hearing.

CPR 3.1(7) is indeed "unfettered". It is "not confined" and offers "exceptional power" – all of the case law, cited by both Parties, says so. The guidance on offer from Case Law (new evidence, judge misled) fits this case exactly.

I did indeed argue the hourly rate but WITHOUT the benefit of the new evidence that now shows:-

1. The ONLY recorded hourly rate agreed between Xxx. Xxxxxxxx and FDC Law was £80.00 / hr.
2. There was no contract (contentious business agreement) between FDC Law and Xxx. Xxxxxxxx.
3. There was no notification of any hourly rate increase, ever.

Also, it was not revealed to myself or the Court that there was in fact no up-front estimate of costs and there were MANY other breaches of Rule 15 which would restrict what FDC Law could charge under the Law Society Rules.

With reference to paragraph 3 (and Exhibit 1) of my Second Statement (attached) we see that the charging rate (£80.00 / hr, billed only four months before Wayman signed the bill claiming her Client was liable to pay her Firm £155 and £165 / hr.) was very fresh in Nigel Long’s mind. The fax was only two days earlier.

One could argue that Nigel Long had a DUTY to inform the Judge about this when I questioned the hourly rate… especially as he was forced to discuss this same question with Ms. Wayman in early October (see para. 8 of his statement).

We see at page 17 of the transcript that D J Brookes had already decided that the hourly rate was not that important… a few pounds reduction would not make that much difference to what he (clearly) had in mind. A 50% reduction is, of course, another matter entirely.

If the Judge had seen the bill for £80.00 / hr. I many not even have needed to argue the point. At very least there would have been serious doubts about the hourly rate that Xxx. Xxxxxxxx must pay. Doubts are ALWAYS resolved in favour of the paying Party. This was material non-disclosure of evidence VITAL to proper judgement.

Reading through the whole transcript we find several places where the Judge says "I accept the solicitor’s certificate". We CANNOT find a single instance of the Judge being aware that the hourly rate, or the costs claimed, are anything OTHER than the normal case – i.e. either AGREED with the Client beforehand or subject to an proper enforceable contract. A wrong assumption Mr. Long did nothing to dispel.

Finally, there are of course MANY cases in which a Judge refuses an hourly rate increase because the solicitor has failed to inform the Client of the increase. The unnotified increase is not enforceable against the Client under the Law Society Rules and would breach the Indemnity Principle if it were allowed. Mr. Long alludes to this in Paragraph 7 of his Statement. That D J Brookes agreed, not only the rate but also the INCREASE, is firm evidence that he believed that the proper notifications had been made. This was clearly NOT the case. We were misled.

Mr. Curwen asserts that it is not open to the Court to vary the order. CPR 3.1(7) is unfettered and provides that exceptional power in appropriate cases.

Paragraph 21

The power exists. Please also see "Paragraph 8" under "The Background Facts"

District Judge Goddard did not hear the Application – he simply transferred it to Birmingham – saying that it was probably better to send it to a Circuit Judge rather than back to a Deputy District Judge (D D J Brookes is not a "native" of Bath).

H H J Cardinal did not receive my letter (copy attached to the Application) until after D J Cooke had made his Order and transferred matters back to Bath. He DID, however, send my letter on the BATH. Possibly this is what finally convinced D J Goddard to ask D J James to look at matters, despite the Order of D J Rutherford.

Paragraph 22

The Order of D J Cooke says at Para. 4. "It is not open to the Court…".

If it was not "open" to the Court for consideration we can be reasonably certain that he did NOT consider the matter or the evidence further. Why would he?

I submit that a Hearing is a Right and that an application that is rejected for technical reasons can always be re-submitted in proper form. I feel certain there is plenty of Case Law on this subject, possibly even Rules… in any event, Article 6 (Human Rights) is clear. No hearing took place and the evidence attached to my Application under XXXXXXXXX wasn’t considered.

The very FIRST time the evidence was considered in Court was on 26^th October 2006 –a hearing which has yet to be concluded.

The material was not the same. It lacked my affidavit of 25^th April, a coherent Application to tie it all together and an exercisable RULE the Court could apply.

In 1910, following Grundy Vs Sainsbury, the Indemnity Principle was simple – an agreement MUST be in writing to be enforceable. The Common Law Principle is now enshrined in Statute – Section 60(3) of the Solicitors Act 1974. This Act also provides … "A contentious business agreement MUST be in writing"

In more recent times there have been a number of "exceptions" to the rule but Family Law has remained an area that has staunchly resisted the application of these, since costs in family cases are so important.

To comply with the FPR, providing a statement of costs (Form H) is mandatory not optional. It is COSTS (including VAT), not HOURS that must be declared. It is abundantly plain that, where an hourly rate is claimed, the hourly rate MUST be determined before a Form H can be filed. There is simply no way to complete the mandatory Form H unless the rate has been established.

The assertion that no hourly rate was agreed makes no sense. The agreed rate of £80.00 / hr is clearly shown in the Bill of 8^th June 2004. That Xxx. Xxxxxxxx paid this bill shortly after it was rendered makes her agreement to this rate irrefutable.

The rate is also reflected in the Form H of November 2002 (£850, including VAT), the Form H of April 2003 (£1527.50 inc. VAT) and (the Ancillary Relief Portion) of the Form H of July 2003.

That the rate £80.00 / hr was used throughout these proceedings is also shown in Paragraphs 7 and 8 and Exhibit 2 of my Second Statement (attached). No other rate was ever notified or agreed and no other rate could (or can) be enforced against Xxx. Xxxxxxxx. This crucial evidence was withheld from the Court up to, and including, the Appeal Hearing in August 2005.

The costs Order was made on 29^th July 2003. It is not open for a solicitor to double the charging rate 15 MONTHS AFTER the Order was made in family cases. If this were permitted it would completely undermine the FPR and the Form H system. Furthermore, the rule "costs follow the event" was removed from family proceedings by SI No. 184 L2, some 5 months before 29/07/2003. Even before that it was extremely common for family Judges to vary the order for costs depending on the amount of those costs (See JSB’s Family Bench Book, Chapter 13). Permitting a solicitor to double the rate charged after an Order was made would seriously undermine a Judge’s discretion in making the Order in the first place.

Wayman’s refusal to give me a breakdown of costs in June 2003 (when I asked for one) is Professional Misconduct – specifically a breach of Principle 17.03 of the Law Society Rules. A solicitor’s DUTY to abide by these rules exceeds all others (except when in conflict with criminal law), even the duty to the Client. This is mandated by Section 42 of the Access to Justice Act 1999.

Under CPD s 13.5 Wayman SHOULD have filed and served her hourly rate and the number of hours claimed at least 24 hours before the Final Hearing if she was intending to claim costs. Her failure to do this was Litigation Misconduct - as was her breach of a direct Court Order (made at the FDR). The JSB’s Family Bench Book described costs under the CPR as "a salutary lesson to those who fail to follow Practice Directions"

Under Rule 15 "costs information must be accurate and must not be misleading". The Final Form H Wayman provided was misinformation that led to successful appeal.

It cannot be doubted that none of this would have happened if Wayman had followed either the Law Society Rules OR the CPR. All costs since 29/07/03 are due to Wayman’s deceit and misconduct. A Wasted Costs Order is required in order to do justice to both of the original Parties.

Even setting the "rate" argument to one side (for a moment) we STILL have the AMOUNT of costs that could be claimed/enforced against Xxx. Xxxxxxxx. The many and repeated breaches of Rule 15 by FDC Law amount to Inadequate Professional Service. Under the Law Society Rules the MOST Xxx. Xxxxxxxx would have to pay is shown on that Final Form H. Having paid £2,106.26 in June 2004 the MOST she would have had to pay for Ancillary Relief is £4,081.24 (which includes disbursements and Council fees) In all likelihood this would have been reduced further because of IPS and the fact the Xxx. Xxxxxxxx collected a costs order against her because of Wayman’s failure of duty (i.e. costs of my first appeal). The solicitor’s declaration that Xxx. Xxxxxxxx had to pay them £16,000 is four times the TRUTH and is without ANY foundation at all.

In General of Berne [1998] 1 WLR 1231 the Indemnity Principle was re-affirmed and clearly applies to every item of costs, on an item by item basis. If the most that could be enforced against Xxx. Xxxxxxxx up to the 1^st Appt. was £850.00 (or thereabouts) it was not open to FDC Law to claim they were owed £4,500. If the most that could be enforced against Xxx. Xxxxxxxx up to the FDR was £1,500.00 (or thereabouts) it was not open to FDC Law to claim they were owed £7,500.

FDC Law asserts they were entitled to "reasonable costs"

The 40^th Amendment may post-date the hearing in December 2004 but the underlying (Leigh) case HAD happened. If £850, or £1,500.00 or £4,000 (or even) £5000 – as originally claimed - was "reasonable" – how CAN £4,500, £7,500, or £16,000 (or even) £9,000 ALSO be "reasonable" when they apply to the SAME costs? If £80.00 / hr is "reasonable" AND £160.00 / hr is ALSO "reasonable" then why not £320.00 or £640.00 / hr? Where does one stop? How can ANYONE make a judgement if the material documents have been withheld?

No Court would allow FDC Law £16,000 against Xxx. Xxxxxxxx, especially as there was no contract to enforce. Wong Vs Vizards might have allowed estimates plus 15% (doubtful without a contract) but at paragraph 15 (vii) of Leigh Vs Michelin No: [2003] EWCA Civ 1766 the judge says "…whereas it is entirely appropriate that estimates of costs already incurred should be accurate…" - even the 15% is extremely doubtful.

Finally, of course, as a last resort Xxx. Xxxxxxxx could have showed FDC Law’s letter of 15^th October 2003. In view of that letter FDC Law could not possibly have obtained more than £6,187.50 from Xxx. Xxxxxxxx. The statement regarding the Indemnity Principle is absolute fiction… but D J Brookes relied on it. Clearly he was misled both over the agreed hourly rate AND the total amount that Xxx. Xxxxxxxx was liable to pay FDC Law.

At page 92 of the transcript we see D J Brookes asking Mr. Long if the costs he could Order would be restricted by LSC certificate. This would have been an ideal opportunity for Mr. Long to fulfil his DUTY and tell the Judge about the letter of 15^th October which restricted the maximum to under £6,000. He did not do so.

The Order of D J Brookes breaches the Indemnity Principle by at least £3,000 and possibly by as much as £5,000. It is not lawful and must be set aside.

It appears that beyond the bill of June 2004 Xxx. Xxxxxxxx has paid nothing in connection with legal matters concluded in July 2003. I submit that FDC Law has not enforced this is further evidence that they CANNOT enforce costs against their Client – there is, after all, no contract and gross misconduct by the solicitor.

It also appears that Xxx. Xxxxxxxx’s litigation costs (in excess of £20,000) have been funded solely by FDC Law since September 2004 (when the LSC certificate expired). For three years FDC Law has funded action for which thay are the SOLE beneficiary, not SIMPLY in monetary terms but also in terms of keeping their misconduct and false declarations under wraps. Champerty is the only word.

All of the costs incurred by BOTH Parties since 29/07/03 are the direct result of Patricia Wayman’s misconduct and LIES. An extensive Wasted Costs Order is clearly required.

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Footnote: It looks like a couple of the above links are broken already.  My guess is that Rick is currently reorganising his Name and Shame website - www.solicitorsfromhell.co.uk - you can, of course go there directly yourself and search... or use this or this or this <--- those are mine... this one ISN'T - so it's not JUST me :-)