Restarting a case which I discontinued

[LaylaBrown]

So apparently I must ask the court for permission to start my small claims case anew.

I take it this means any court, not just the court that discontinued the claim last year?

I have moved address, and envision the new case will end up in my local court.

I plan to ask permission from them when the defendant inevitably protests about this.

[R0b]

That’s correct.

If you try to issue a fresh claim that is the same or substantially similar to the one you discontinued, it is open to be struck out by the court. You could request retrospective permission but the starting point is that a court will not grant permission if you failed to follow the rules.

You should also be mindful of making an application for permission because you would generally need a good enough reason for the court to open something that you chose to not continue with. For example, the court may consider granting permission if there has been some material new evidence or if there has been a change in the law by some superior court like the Court of Appeal or Supreme Court.

Also you should be aware that if the application for permission is defended and you lose, you are liable to a costs order being made against you to cover the reasonable costs of the other side.

[atticus]

Any application regarding an existing case should be made to the court that has the case.

But if you are planning to start a new claim, that may be done in a court of your choosing. I make no comment on your chances of resisting an application by the defendant to strike out a new claim. I endorse what Rob has said.

[dslippy]

Part will depend on the circumstances of discontinuance - was it agreed or paid for in some way.

[LaylaBrown]

Interesting.

The reason I discontinued the original claim is that I wanted to increase the claim (double it) and the Defendant told me I was making substantial differences that they would oppose - if I refused to pay them £250 for their costs in amending their defence accordingly.

Together with the application fee to make my changes, that brought the bill to more than the amount I was increasing by.

I would say that is as much a declaration that they consider the two cases different as I need. If they try to oppose my new case, for being "the same" or "insubstantially different" then I can just present their previous statement.

Thoughts?

[R0b]

I'm not particularly convinced that's a good enough reason. Based on what you've described, your claim is essentially the except the dollar figure is changing for one reason or another. In effect you wanted to avoid the correct process by paying extra fees to double your compensation and that in itself could be viewed as an abuse of process.

There are a couple of points to note. First, you want to increase the compensation amount, have you checked whether it takes you into the higher bracket for the issue fee? If so, you might be required to pay the difference as a condition. Second, the Defendant might try to argue or the court may decide for itself that the claim is essentially the same except for the compensation amount and therefore the obvious and logical solution is to reinstate the discontinued claim, make and order for you to file and serve an amended particulars of claim and then pay the costs of the Defendant for filing an amended defence - which may or may not come to the £250 the defendant was originally asking for.

I had a quick look at some guidance around discontinuance and it doesn't look like there is much authority around permission for new proceedings following a discontinuance. The only case I can find is Westbrook Dolphin Square v Provident Life (link to decision) and I would suggest you have a read of it in full and in particular, paragraph 41 onwards. The decision confirms that the onus is on the application to show why the court should grant permission for a new claim. Also, because it is an application to request permission, you need to support that application with evidence.

As I mentioned at the start of this post, discontinuing your claim because you wanted to increase the compensatory amount by avoiding extra fees is in my view, unlikely to persuade a court to grant you a new claim, especially if the defendant is going to oppose it. I think there is a higher chance of your actions being found as an abuse of process if anything.

Obviously no one can predict or guarantee what a court might say or do, but be prepared if you are given permission then you may have to pay costs of some kind. If you get away with paying nothing, then think yourself very lucky but it is a risk.

[dslippy]

It is worth noting that the tyenant's appeal in Westbtook Squre succeeded, but on grounds particular to the situation which wold no apply here.

As was said previously, the £250 costs request was not so unreasonable. You may now find a dismissal of your entire case with a larger costs bill.

[atticus]

I would say that is as much a declaration that they consider the two cases different as I need.

I consider that misguided. It is standard practice that permission to amend a claim allows for amendment to the Defence.

Why did you not simply carry on with the original claim if your proposed amendment was going to be uneconomical?

I agree that you are in difficulty here.

[jaguarsuk]

You ought to have applied to amend the value of the claim, the particulars of claim and for the defendant to amend their defence in the same application. The defendant wouldn't have had to apply to amend their defence then and consequently not incurred a cost.

[R0b]

Jags - I think the issue the defendant has, is the cost of drafting an amended defence through no fault of their own so even if the draft claim/defence were in the same application, the general rule under the CPR is that the applicant will be responsible for costs as a result of the amendment.

I have argued successfully against paying defendant costs but this was purely on the basis that the amendment was merely changing one figure for another and the rest of the particulars remained unchanged. In that case, the defendant denied liability for the original figure and had given their reasons why liability was denied, so there was no reason why the defence needed to be amended based on a single change to one figure amount.

If the OP intends to add additional particulars rather than simply change one figure, there's a more realistic chance that the defendant's costs would need to be paid

[atticus]

Jaguar - permission to amend the defence in consequence of amendments to the claim is an almost invariable term of an order permitting amendment of the claim, as is provision for the defendant's costs of the amendment.