I appeared again, for the third time at a County Court, at which the National Guild Of Removers and Storers ltd so called, tried and for the third time failed in their attempts to thwart McCrorys Removals Ltd to have their defence heard at a full trial.
The hearing on Tuesday was an application by ngrs to obtain an order to have McCrorys Removals Struck Out, and, or be given a summary judgement, and an order to strike out my defence on the grounds that McCrorys Removals Ltd have not given a full disclosure, of documents, and an order to strike out the defence because of being defective procedurally.
All of the above applications failed, except one……which was withdrawn on the day of appearance.
When I arrived at the court this Tuesday, a little early, my barrister Nick George, told me he wanted to have a quick word with me immediately, as he had received an emailed letter sent to my solicitor, James Lomax, only arriving at 5pm the night before.
And when I read the letter, it was an offer from ngrs to withdraw the applications, if I was prepared to pay all of their costs, and my own.
Curiously this offer was in stark contrast to the letter from the same author, Mr David Sheahan, only the same day!, in which he stated, when we requested that he consider now withdrawing their applications, as McCrorys Removals believed it had no reasonable chance of success, he stated that ‘on the contrary’, they believed that it was entirely justified, and enclosed an updated schedule of their costs, all of which I uploaded to our previous blog.
I did not hesitate, even though Nick pointed out to me that the worst possible scenario was that, if I lost on all of the applications, the cost up to that day would amount to around £8,000 and even possibly, if the ngrs were successful in their ‘strike out’ application, then there would be the entire claim of over £14,000 to pay plus their costs in full as well as my own.
I immediately said, we must refuse such an offer, and, although Nick had been very impartial up to that point, he then enthusiastically said that he considered that I had made the ‘right decision’
I reckoned that, whatever my defects, in my presentation of my case, any reasonably fair minded judge in the land, would see that there really was a defence and, that it would be woefully unjust to deprive McCrorys Removals from having a trial.
After three hours of intense consideration, and some debate between my barrister and the ngrs barrister, the judge read out her decisions.
On the subject of my defence being, ‘Confused and convoluted and not Particularised and therefore not understandable as to what the substance of the defence was’… the judge did agree with ngrs/cwd that Patrick McCrory was obviously not a solicitor, and was ‘typical of any lay person’ in that the language used in McCrorys Removals Ltd defence statement was not in the language of lawyers as would normally be expected, however, the judge agreed with McCrorys that, as very well illustrated, in the witness statement of Mr Sheahan from ngrs solicitors, had argued with each point in McCrorys Defence in a succinct and clear manner, and even helpfully, summarised his understanding of what McCrorys main points were, therefore totally demolishing the allegation that McCrorys defence statement was confused or incomprehensible.
The Judge also stated that, in her view, anyone reading McCrorys Defence statement could be left in no doubt as to the intention and meaning of it and that McCrorys Removals had a detailed and valid defence and that they clearly intended to defend the claim.
Therefore the Judge ruled that ngrs had failed to obtain an order to strike out McCrorys Removals Ltd defence and that there should be a full trial as already timetabled for 10th July 2014 for a full day at Milton Keynes County Court.
Likewise The judge ruled that ngrs the so called National Guild Of Furniture Removers and Storers Ltd had failed to obtain an order to have a summary judgment against McCrorys Removals Ltd
The application to have the defence struck out on the grounds that it was defective, and in particular, improperly, contained ‘without Prejudice’ material’ this application also failed, as McCrorys had already redacted the defence so as to fully comply with the courts requirements.
The application to have the defence struck out on the grounds that a full disclosure had not been given, and in particular, all the correspondence involving third parties that had supplied affidavits to McCrorys Removals which would have supported their assertion that the membership of ngrs was of no value, or even harmful to its business, also failed, as McCrorys decided not to rely on those statements for its defence, as we had repeatedly been threatened with defamation action, to have handed over any private correspondence to ngrs would have been potentially incriminating, and we did not feel at liberty to disclose anything that should have been seen as irrelevant to their claim either.
NGRS withdrew this application.
The judge then dealt with the subject of costs, and the so called national guild of removers and storers barrister were asking that mccrorys removals be liable for ngrs costs.
My barrister disagreed, and argued that as the substantial costs, which were for the ‘defence being struck out’ application, and had been decreed to have been unwarranted, all of those costs should be borne by NGRS.
Predictably the ngrs barrister, once again tried to rely on an indemnity clause within their terms and conditions, (5.1.9 in the Free Trial Membership 2011 version, and also appears in other contracts which mccrorys were never bound by nor agreed to, nor ever signed.
This clause was reeled out by ngrs solicitor Mr Sheahan at their first hearing many months ago, and I argued then that it was irrelevant, unenforceable, and didn’t even relate to members of the so called guild at all, but was aimed at the relationship between members customers and the so called guild and any possible liability therein.
This was the same argument that my barrister made, and also the fact that the judge should always have the final discretion in any case, on the question of costs.
The ngrs barrister appeared to, reluctantly, agree that the judge did have the final discretion on the subject of costs.
This was a great relief to me, that, at last, that laughable, ‘catchall’ clause, was rendered meaningless in a court of law.
The judge therefore exercised her discretion and, even after allowing for the fact that McCrorys Removals Ltd did not present the original defence in the exact procedural way, NGRS was ordered to pay McCrorys Removals costs of about £2500.
The ngrs barrister immediately requested the judge to consider that she be granted leave to appeal against the costs awarded against ngrs, but when the judge listened to ngrs reasons, and took into account that McCrorys had in fact, offered to amend any defective defence, in good time, before the applications for the orders had been made. The appeal was refused there and then.
The lessons learnt so far I think have been that, whilst, instructing a solicitor can be costly, it can in fact save on costs, if advice is sought at an early stage, especially if using a solicitor, such as James Lomax, from Backhouse J0nes, as they have now amassed a considerable knowledge base of the problems of disputes with such so called trade bodies, and have already achieved some notable success.
Also learnt that one should never use ‘without prejudice’ material in their statements as it will be objected to by the other party.
And, if, as a defendant, you feel you have no choice, even if it seems unjust, and that you may have been, in some way, coerced into signing a contract, if you still feel, however wrongly, that you may be found legally liable, it is worth considering making what you consider a reasonable offer, but only for the maximum, that you feel liable, and at an early stage, as this will then halt all subsequent costs from being claimed, if at a much later date a court decides that this early offer was in fact reasonable.
This is what I did about two years ago, and kept repeating that, in spite of the fact that I felt I should not have owed anything, and did not wish to avail of any of the so called guilds benefits, I offered the maximum amount that any court might consider that I owed, and continued to offer that, in writing, over a two year period. That has stood me in good stead, and will eventually, I know, prevent, any exaggerated costs, being awarded, at the final trial
And, as I have noticed, the judge is there to decide, in a civil case, on the balance of probabilities, and not, as in criminal cases, needing 100% proof, … so if ones case is creditable, I believe it will be proven in the end, as judges are very experienced at detecting the whiff of authenticity, and will tease out the slightest inconsistency, so there is nothing to fear, if you believe you have a good and just reason to go to court.
Also, as only occurred to me relatively recently, although I believed I was saving McCrorys Removals Ltd from having to be liable to pay quite hefty legal fees by choosing to act as a litigant in person, for the first two years of the dispute, in fact, if the lawyers, on the opposing side, did have some kind of a financial arrangement with their clients, then, even if they lost their claim, that loss would be quite limited, or almost nothing, as I would not be able to claim for my legal fees, even if I won, as I wouldn’t have any.
Whereas, now, because I have instructed a solicitor, and using a barrister, when McCrorys Removals do win, it will be awarded, potentially, all of its costs, and therefore ngrs now really do have something to lose, as was demonstrated by the hearing on Tuesday.
This was the third appearance and, now, there is only one more to go.
It was, yet again, a good day for justice being seen to be done, and I am confident that the next full trial day on 10th July will finally see justice being metered out, and bring my three years of being subjected to this claim, finally resolved.
The result of Tuesday’s hearing will hopefully encourage the many other removal companies that have been in contact with me, to continue to stand up and fight, and not be worried about using the court rooms to seek justice.
I am happy to share my experience with anyone that has been a victim, and also to pass anyone on to the same solicitors that McCrorys are being represented by.
Yet another working day wasted by ngrs intransigence, having to travel from our Nottingham base to Milton Keynes court and back again after all the day listening to redundant arguments.