Monday, 29 July 2013

Vexatious defendant?

Not sure if there is such a thing, but this really does surprise me now - and sorry that my blog posts are all on the same subject of late - it was too long to post in a comment.

It seems somewhat "brave" to clearly state, and not "without prejudice", how you want to cause the other party as much costs and inconvenience as possible and how you are deliberately refusing to state your actual defence up front!

It is going to be worth £25 court fees for amusement alone.


Mr Kennard,

I have really tried to be patient with you. 

I had hoped:
·         you would file a claim
·         we would request the listing be held in a court near us
·         you would have to travel to weymouth
·         the court in the first session would allow 30 mins
·         you would rock up and present your claim and base it on past success, and your interpretation of regulations
·         the judge would state that given the back ground reading the case would have to be adjourned
·         you would have to travel to Weymouth again
·         you would argue the case again, we would then present a defence.
·         You would loose on one very key fact which you and others over look
·         We get awarded costs. (£275 + VAT an hour for our lawyer)
·         We would ask the judge to challenge previous instances where you have extorted monies from individuals and companies.

We would then go to the online fraud website and submit an overview of what has happened, your self-declared previous successes, point to the verdict of the court and make a complaint

I had hoped this would happened because you incur maximum costs, why, simply because of your approach and conduct during this matter.

If you are serious, get qualified representation.  The UK legal system deserves better respect than you give it.  Judges, barristers and lawyers are qualified to consider this matter, you sir do not appear to be.  Whilst I fully support every man’s right to have his day in court, I do believe they have better things to do than have their time wasted addressing, ill-conceived cases. 

If however you would like me to explain the reasons why you do not have a case, cover the costs of my solicitor writing to you and I will happily engage them to do so.

With this in mind, please do one of the following:

·         Pay the fees, and start claim proceedings
·         Get representation
·         Agree to cover the cost of our solicitor, writing to you.

Regards

My reply...


On 29/07/13 08:38, Darren Scott wrote:
Mr Kennard,

I have really tried to be patient with you. 

I had hoped:
·         you would file a claim
As you should know, I can't just "file a claim" - I have to try to
resolve the matter without going to court as per the pre-action conduct
civil procedure rules, which is what I am trying to do here. Once that
fails I can then file a claim.

·         we would request the listing be held in a court near us
And I can request the case is heard in Reading County Court as would
normally be the case where an individual is suing a business.

It is also possible that the case may be heard by written evidence and
not a hearing anyway.

·         you would have to travel to weymouth
Nope, you would have to travel to Reading.

·         the court in the first session would allow 30 mins
Doubt it would take that long :-)

·         you would rock up and present your claim and base it on past
success, and your interpretation of regulations
I would, of course, present evidence of your breach of the regulations
and my claim for damages.

·         the judge would state that given the back ground reading the
case would have to be adjourned
Why - the case is clear cut - you have breached the regulations, you
have not stated why you think you are not in breach and seem keen not to
follow the civil procedure rules

·         you would have to travel to Weymouth again
Reading!

·         you would argue the case again, we would then present a defence.
Well, you are meant to try and resolve this before going court - so
present your defence *NOW* rather than waiting for two hearings.

·         You would loose on one very key fact which you and others over
look
Which is what - exactly?
State that "key fact" now.

·         We get awarded costs. (£275 + VAT an hour for our lawyer)
Small claims track does not award costs for lawyers.

·         We would ask the judge to challenge previous instances where
you have extorted monies from individuals and companies.
Your email shows that your refusal to try and resolve this matter
without going court is simply vexatious - you are deliberately refusing
to state any actual defence with the express aim of causing me
additional inconvenience and costs as clearly stated above. I will
present your email as evidence to the court.

We would then go to the online fraud website and submit an overview of
what has happened, your self-declared previous successes, point to the
verdict of the court and make a complaint
This is not fraud - it is my legal right as per section 30 of the
regulations to claim damages from you.

I had hoped this would happened because you incur maximum costs, why,
simply because of your approach and conduct during this matter.
Again, you are re-iterating that your actions are vexatious - attempting
to incur maximum costs for me in this matter.

If you are serious, get qualified representation.  The UK legal system
deserves better respect than you give it.  Judges, barristers and
lawyers are qualified to consider this matter, you sir do not appear to
be.  Whilst I fully support every man’s right to have his day in court,
I do believe they have better things to do than have their time wasted
addressing, ill-conceived cases. 
For the sums involved the small claims track of the county court is
perfectly sensible and for which a qualified representative is neither
required, expected or cost effective.

If however you would like me to explain the reasons why you do not have
a case, cover the costs of my solicitor writing to you and I will
happily engage them to do so.
No, you are expected to try and resolve this without going to court.
You are clearly refusing to do so.

Just state your defence now - your reason why you think I am wrong, and
that will (if it is valid) be the end of it.

With this in mind, please do one of the following:

·         Pay the fees, and start claim proceedings
·         Get representation
·         Agree to cover the cost of our solicitor, writing to you.
I would not agree to cover your solicitors costs and would not have to
even if I lost a case against you in the small claims track of the
county court. I am amazed that you think this is acceptable pre-action
protocol.

Your email makes it clear that you are not prepared to resolve this
matter without the case going to court and I reserve my right to proceed
to a county court claim without further notice in due course.

-- Adrian Kennard

9 comments:

  1. *popcorn*

    This gonna be good.

    ReplyDelete
  2. He has obviously not sought any legal advice if he thinks that small claims court can award laywer fees

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    Replies
    1. Small claims court *can* award solicitors fees (it's just a different track in the county court, but has the same powers as any other court track). It's just very unusual for it to do so, as the point of small claims is to minimise overheads and thus you shouldn't be using a lawyer in the first place.

      I suspect that in virtually all cases where small claims would award lawyer fees to the defendant, they'd also refer the plaintiff to the High Court with a view to having their details added to http://www.justice.gov.uk/courts/vexatious-litigants - which generally happens if you bring suit without having a sensible legal theory[1] that explains why the defendant owes you.

      The irony here is that, given the defendant's intransigence, they're more likely to have costs awarded against them than RevK, even if they do prevail in court - there's a specific allegation made, and the defendant is not putting up a specific defence against it, but saying "I disagree - see you in court". The courts look very poorly on that sort of behaviour - you must at least try and convince the plaintiff of their error.

      [1] A sensible legal theory is a specific allegation pointing to the exact contract term or legislative section the defendant is alleged to have breached, the evidence that the defendant did breach it, and rebuttals of all defences[2] the defendant came up with as you went through your pre-action protocol.

      [2] Note that a rebuttal need only be as detailed as the defence itself - if the defence is "that law doesn't apply here, but I'm not telling you why", a rebuttal could easily be "I believe this law does apply in this situation". If the defence is "Section 94 paragraph 23 sets out the situation in which that contract term cannot be breached, and we believe we fall into that situation", a rebuttal needs to be more details - e.g. "section 94 paragraph 23 says that it only applies if the breach of contract happened after the defendant frobbed the widget or the plaintiff wargled the quuxbar. I have not wargled the quuxbar yet, and the defendant has refused to provide evidence of frobbing the widget".

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  3. Can we do a Kickstarter for this?

    ReplyDelete
    Replies
    1. no, can we do kickstarters for *many* more of *these* :)

      Delete
  4. A certain legal information web site once received email from a user. Roughly paraphrased: "In case (X) I was declared to be a vexatious litigant. I am not a vexatious litigant, and unless you immediately remove this case from your site I will sue."

    This looks like a standard intimidation un-defence.

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  5. I wonder how many people received this bloke's spam and therefore what his potential loss would be if every one of the recipients heard about this and took the same action...

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  6. Nicholas, I would imagine that this chap's entire business is dependent upon sending out illegal emails to non opted-in recipients so his worry is not that he has to pay £50 to the Rev but that the Judge orders him to stop entirely.

    Does anyone WANT spam?

    I don't even want it from companies with whom I do business.

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  7. Quality rebuttals from Mr Scott there, telling RevK exactly why the email in question was not sent in breach of the law – no, wait, that's not right – where to get off…

    It would be interesting if SimonF's right about the business dependency.

    ReplyDelete