So was the outcome of a hard fought three year old dispute last week, which had been before the court for the last two years, which involved one of our members and who was represented at the final hearing of the matter by top quality counsel (a specialist barrister).
The final hearing did not go entirely as expected as it ended up being occupied entirely by arguments over the state of the Claimant’s case.
Essentially, to begin with the Judge asked the advocates to confirm what issues he had to decide. Counsel for the Claimant said that his client was not now pursuing any claim based on misrepresentation, as pleaded as its position had shifted and was now that the vehicle was of unsatisfactory quality given issues over a speed limiter and rust.
Counsel for our member pointed out to the Judge that this was not how the case was pleaded; that the Particulars of Claim argued that because of an earlier FOS decision, the Claimant was entitled to an indemnity from our member. It said nothing about the vehicle being of unsatisfactory quality or about breach of any express or implied terms of the contract between the parties.
After some back and forth on point, the Judge agreed with our member’s counsel.
He then invited submissions on whether the Claimant should be allowed to pursue its claim on the day based upon the satisfactory quality point despite it not being pleaded. Counsel for the Claimant tried to argue that because this was a small claim the Judge should overlook the fact that the quality argument was not pleaded. Counsel for our member opposed that argument on the basis that this wasn’t just a case of a pleading not fully setting out a party’s case; this was a Claimant trying to argue a completely different cause of action on the day of trial! That was wholly unacceptable, particularly when the other side had been legally represented throughout.
Again, the Judge agreed with our member’s counsel.
He then invited final submissions on whether to adjourn the hearing to allow the Claimant to amend its pleadings. After taking instructions from his solicitors, counsel for the Claimant sought such adjournment. Counsel for our member duly opposed on the basis that this dispute was already nearly 3 years old, that it would waste an inordinate amount of time, cost and court resources to adjourn, and that it was intolerable bearing in mind the cause was a failure on the part of the Claimant to plead the case they actually wanted to run.
Once more, the Judge agreed with our member’s counsel.
Consequently, he concluded that the Particulars of Claim disclosed no reasonable grounds for bringing the claim (there being no legal basis for the other side to claim an indemnity in light of the FOS decision) and he struck them out and dismissed the claim. A double whammy if you will! There was no application for permission to appeal.
The Judge had raised the possibility during the hearing of the other side trying to issue a fresh claim based upon unsatisfactory quality. In response, counsel for our member had pointed out the very high likelihood of such attempt being an abuse of process under Henderson v Henderson and it is doubtful they will try. Indeed, any such claim would be doomed to fail on the facts, in any event.
Understandably, our member was delighted with the outcome, which was a complete vindication of its long stated position and it described counsel’s performance on the day as ‘superb’ and worth every penny of his fee.