Watsons succeed again….

I am pleased to report that the firm has recently succeeded on an appeal for a client who was the victim of a poor decision. I say poor, but really i cannot totally criticise the judge as the advice the client was given was unhelpful. I go as far to say that had the client followed his instinct and not the advice given to him before my involvement then he may have secured a different outcome and thus avoided the need to appeal.

The client really did have his arguments set up from what he told me, but as i said he was advised not to run those points but to instead follow a different route. The outcome of doing so was that he lost at trial and was slapped with over £6k costs.

In truth he should not have lost the case as it was soo clear that the lender had difficulties, in fact it would be fair to say the lender would have been surprised to have won.

When instructions were received a complete assessment of the case was carried out and the issues identifed.A fully detailed brief was prepared setting out the key arguments and refering to the case law that applied. A leading QC was instructed to represent the client at the appeal along with junior counsel and an appellants notice was prepared and filed.

Although i cannot be sure, it seems to me that the Claimant accepted that it was at risk, especially with the Court of Appeal in Kotecha supporting our arguments, and the fact that the Claim was funded by a CFA meant that the Claimant would get caught by the success fee if they lost the appeal, as they came to us seeking to allow the appeal by consent.

Now normally the Court will not disturb a ruling of the lower court without hearing the parties, however there is a provision in CPR rule 52 PD 52 which allows (Subject to the Court being satisfied) the Court to allow an appeal without actually hearing the appeal.

Allowing unopposed appeals or applications on paper

13.1

The appeal court will not normally make an order allowing an appeal unless satisfied that the decision of the lower court was wrong, but the appeal court may set aside or vary the order of the lower court with consent and without determining the merits of the appeal, if it is satisfied that there are good and sufficient reasons for doing so. Where the appeal court is requested by all parties to allow an application or an appeal the court may consider the request on the papers. The request should state that none of the parties is a child or protected party and that the application or appeal is not from a decision of the Court of Protection and set out the relevant history of the proceedings and the matters relied on as justifying the proposed order and be accompanied by a copy of the proposed order.

The only way to allow the appeal was to do so by consent. The other option was to agree to abandon the appeal with an agreement that the Claimant would not enforce the agreement but that would have left the CCJ in place but just not enforced. Of course the other option would have been to go to the appeal and proceed and be heard etc, but that itself would have brought huge risks.
 
This is why a consent order was used as it allowed the Judgment to be removed without the risk of going to appeal. It was a good result in the end, but it could have been far worst, and could have left the Defendant in circumstances where despite him having a strong case, due to the fact that he followed advice that was not entirely correct he would have had a CCJ which he may not have been able to overturn if he hadnt contacted us and moved quickly. With a CCJ the Claimant could easily sought a charging order or order for sale.
 
However the terms which were agreed now mean no CCJ or any further risk for the client. A good result in my opinion
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About paul @ watsons solicitors
Member of Chartered Institute of Legal Executives and a litigator for one of the leading firms of solicitors in Consumer Credit Act litigation. I was the fee earner in the landmark ruling of Harrison v Link Financial Limited and many other County Court decisions.

3 Responses to Watsons succeed again….

  1. Was the costs order also removed from the defendant ?

    Nice going anyway 🙂

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