Can a small claims defendant be awarded costs in any situation ?

[Georgey48]

Here is a summary of my situation:-
I am a third party claimant in a small and insignificant accident. Nevertheless, I felt that I should be recompensed and contacted the insurance agent. This agent was extremely obstructive, dismissive and arrogant and refused to help me.
I made a claim through the small claims court and won by default. The agent made half an attempt at a defence but the court sent it back for clarification which was never received.
I have instructed the bailiff to recover my money and this is in progress.
I received my first correspondence last week from a solicitor acting on behalf of this agent who asked me to effectively call off the bailiff. I planned to reply but I haven't had the time.
I have received further correspondence from this solicitor informing me that they have applied to set aside the judgement and that I should "consent to the application so as to avoid cost being incurred".

Now to my question:- Why would I consent to this application when I have spent my own time and money to get to this point ? The money component of my claim isn't really of great importance to me and it is only in the region of a few hundred pounds. The purpose of this case was to force the defendant to converse with me having been so arrogant that they can decide who gets to submit a claim and who does not. I am very satisfied that they are now having to invest their own time and money in my situation where previously they have brushed me off as an irritating inconvenience. If I do not consent to the application to set aside, they will need to apply to set aside without my consent and there is no guarantee that this will be granted. Can they recover any of these costs from me if they're successful ? Is there any negative aspect to me continuing ?

[R0b]

In short, yes they can recover costs from the set aside. The usual rule for being successful in a claim is to be awarded your costs with exception to claims allocated to the small claims track unless there is unreasonable conduct.

Set aside applications are not allocated to the small claims track because they are effectively considered an interim application and the usual costs rules will apply. If they have submitted an application to set aside then it would usually be one where notice is given so you should be sent the application. Equally, you should require the application and associated documentation from their solicitor which would usually include the witness statement, draft defence and draft order.

This agent was extremely obstructive, dismissive and arrogant and refused to help me. I made a claim through the small claims court and won by default. The agent made half an attempt at a defence but the court sent it back for clarification which was never received.

I think this bit is crucial, because it sounds like the court would have made an unless order to file a defence or it is struck out. They would then need to apply for relief from sanctions in that case.

You've not given a great deal about your case but I would suggest you first obtain their application and documents before making a decision. If you feel confident that you can persuade a judge not to grant a set aside, then go with the risk otherwise you might be wise to consent to setting aside.

I also suggest you have a read of the link below which sets out circumstances when a set aside will be granted.

http://legalbeagles.info/forums/foru...tailed-version

[Georgey48]

Thank you Rob.

My case was actually only a few sentences which equated to:- This insurance broker quite deliberately prevented me from submitting a claim. They told me that although they sold the insurance product, the responsibility was with the underwriter and they wouldn't provide me the underwriter or forward my claim. Their stance was "tough luck, what are you going to do about it".

[ostell]

But as they have received the claim form but chose not to submit an amended defence as ordered then you should be able to persuade the judge that the judgement should remain.as the defendant ignored the court process.

[Georgey48]

But as they have received the claim form but chose not to submit an amended defence as ordered then you should be able to persuade the judge that the judgement should remain.as the defendant ignored the court process.

This was what I was originally relying on; the first correspondence from the solicitor stated that their client "was unaware of the proceedings" and so the client has been very dishonest with their solicitor.
Later in that letter, he states that if I don't call off the bailiff, they will be forced to apply to set aside for the reason that the claim should be against the insurance company and not the broker. I of course understand this but the point is that the insurance company would have been more than happy to settle the claim had they known about it. It was the broker who took it upon themselves to dismiss my claim.

[davenewbergr]

There seems to be something not quite right about this. Anyone harmed in an incident involving negligence claims against the negligent party, not against an insurance company - still less a broker. If the negligent party is insured, and notifies the insurer, then the insurer will usually adopt the proceedings and then defend or settle.
"I planned to reply but I haven't had the time." Don't ever try that excuse before a judge on a matter as important in the instruction of bailiffs. If you are involved in something like this it must take preference over everything with the possible exception of sudden and critical illness.

[Georgey48]

There seems to be something not quite right about this. Anyone harmed in an incident involving negligence claims against the negligent party, not against an insurance company - still less a broker. If the negligent party is insured, and notifies the insurer, then the insurer will usually adopt the proceedings and then defend or settle.
"I planned to reply but I haven't had the time." Don't ever try that excuse before a judge on a matter as important in the instruction of bailiffs. If you are involved in something like this it must take preference over everything with the possible exception of sudden and critical illness.

Thanks for the reply, no, it's not a negligence claim or anything of this kind, it's much more trivial. Maybe I should have been a lot more detailed in my original post; I will try and clear this all up:-

Basically, some old boy has driven off of the road and through my fence, knocking down a tree in the process. This is private agricultural land and although I have public liability insurance and some other insurances, the fencing etc is not insured. Ordinarily, this whole process would be in the hands on your own motor insurance or house insurance depending on circumstance but not in this case. Nevertheless, I am still a third party and I don't wish to spend my own money repairing someone else's damage. Note that there is no dispute or bad feeling, it's a simple accident and there is a police report.
The insurance broker have refused to help me with this, they quite correctly say that it is the underwriter who is responsible and they will not provide me with the underwriter for that policy. I of course asked how can I make a claim if you won't tell me who the underwriter is and you won't forward my case. They said I cant. I accept that this is maybe an unusual situation for a broker but it cant be unique and the whole thing boils down to, very simply: they have sold an insurance product that includes cover for a third party and they are refusing to accept a third party claim.
I contacted the broker many times and by different means and informed them that I intended to begin a small claim case. They were dismissive and uninterested. The court told me that they had submitted "something" but it was very unclear as to whether they were making an admission or were trying to defend so they sent it back to be clarified. Nothing from that point was received by the court and so a default judgement was made.
Regarding the not replying to the solicitor: I wouldn't use this excuse in court but to be honest, I didn't take it very seriously. They were offering nothing and asking me to stop the proceedings, why would I do that ? It is only the bailiff that has prompted any kind of response so far - they have ignored me and they have ignored the court. I hadn't expected the defendant to allow it to get itself into a position where the bailiff was visiting over a few hundred pounds.

[des8]

Well davenewbergr is quite correct.
You should be claiming against "the old boy"
As soon as he receives your notice that you hold him responsible, he should (if he has any sense) notify his insurers who will take the claim over for him (it's called subrogation)

Certainly the broker has nowt to do with this

[Georgey48]

Well davenewbergr is quite correct.
You should be claiming against "the old boy"
As soon as he receives your notice that you hold him responsible, he should (if he has any sense) notify his insurers who will take the claim over for him (it's called subrogation)

Certainly the broker has nowt to do with this

Thank you Des. All sounds quite harsh though - starting legal action against this poor old boy who has already just had a traumatic experience and has willingly supplied his insurance details. My assumption was that there would be no need for any kind of legal intervention; a form could be filled out and within a couple of weeks, everyone would be happy.

So, what do you suggest I do now ?

[des8]

You should write to the "old man", referring to the circumstances of the incident and tell him you are holding him responsible for the damage to your property.
Suggest he acknowledges receipt of your letter, and tell him he should pass to his insurers (not his broker) as they will deal with any claim.
The name of the insurance company can be found on his certificate of insurance
Advise him that if you do not hear from him or his insurers within XX days you will initiate court action
At this stage there is no need to come over all legal, you could even ask if he has recovered.
Just lead him gently through the process if you don't want to lean on him

Earlier you said the broker would not reveal the identity of the underwriter, but now you say the "old boy" supplied his insurance details.
Do you mean the "old boy" gave you the name of his broker? That is not the same as supplying insurance details.

[Georgey48]

You should write to the "old man", referring to the circumstances of the incident and tell him you are holding him responsible for the damage to your property.
Suggest he acknowledges receipt of your letter, and tell him he should pass to his insurers (not his broker) as they will deal with any claim.
The name of the insurance company can be found on his certificate of insurance
Advise him that if you do not hear from him or his insurers within XX days you will initiate court action
At this stage there is no need to come over all legal, you could even ask if he has recovered.
Just lead him gently through the process if you don't want to lean on him

Earlier you said the broker would not reveal the identity of the underwriter, but now you say the "old boy" supplied his insurance details.
Do you mean the "old boy" gave you the name of his broker? That is not the same as supplying insurance details.

He's a nice old man who is very embarrassed about the whole situation and has been very apologetic. I really don't want to cause him any anguish over a bit of stock fence and a few posts. My gripe is that the "agent" has been thoroughly obnoxious with me and dismissed my claim. They could have easily told me that in order for me to progress this, I would need to contact ""the old boy" and ask him to fill in a form or make a phone call and this would have been just fine. Instead, they basically said "tough s**t - repair your own fence, you're getting nothing from us now p*ss off !" (and that is no exaggeration).
The situation now is that, as an independent person, I have embarked upon this legal action against a company who turns over several tens of hundreds million a year and I have won by default. The original purpose was to force them to engage with me; I didn't expect to win. Their arrogance was such that they didn't feel that they needed to defend their case and now we are in this situation. The thing I find strange in the whole affair is that, despite having 10 in house solicitors, they didn't make a proper defence and now they have instructed a small high street firm to act for them ? Why would a massive conglomerate with almost infinite legal resources and money find itself in this situation over a few hundred quid ?

[des8]

I would suggest that as R0b you consent to the set aside of the CCJ.
The case will then be reheard, and although he will probably win, you could claim unreasonable behaviour in he did not follow court instructions earlier and so is not entitled to any defence costs (which are very limited in any case)
This will get him into court so you can have your five minutes if that is what you still want!

An aside Did you sue the agent as an individual, or his company?
Care to name them??

[Georgey48]

I would suggest that as R0b you consent to the set aside of the CCJ.
The case will then be reheard, and although he will probably win, you could claim unreasonable behaviour in he did not follow court instructions earlier and so is not entitled to any defence costs (which are very limited in any case)
This will get him into court so you can have your five minutes if that is what you still want!

An aside Did you sue the agent as an individual, or his company?
Care to name them??

Thank you Des, I have spoken to the solicitor this morning and I think we may have a resolution. It was BGL Group (the policy was Post Office Money).

[des8]

Ahh BGL = meerkats = comparison site who directed their client to Post Office Money.
Explains everything!!!!!!!!!!

Glad to hear you have sorted the matter.

[Georgey48]

Ahh BGL = meerkats = comparison site who directed their client to Post Office Money.
Explains everything!!!!!!!!!!

Glad to hear you have sorted the matter.

Not as such Des, The Post Office just put their name to these insurance products, the actual broker is BGL.
So, as a bit of an update: I spoke with the defendants solicitor who was an altogether more reasonable chap. I filled him in on the events so far and he accepted that sometimes these things happen in large uncoordinated organisations and that the best solution is for his client to take whatever steps are required to get me my money.This whole debacle can then be concluded without any significant expense. I agreed that this would indeed be acceptable and he would send me an email to this effect and I would acknowledge receipt etc. to get the ball rolling..
So, I have to take him at his word but my concern is that his client is thoroughly untrustworthy and may not fulfil their side of this agreement. I have received an Application notice today from the court which I have redacted and attached AN_Redacted.pdf . Presumably they have asked for a hearing because they now know that they won't be able to use their "defendant was unaware" argument ? All being well, I will be compensated and the defendant will go about their business without the judgement and all will be fine. Now, I still want my money and so what happens in the event that the defendant double crosses me and just does nothing as they have up until the point the bailiff arrived at their door ? What then ? I don't want to help this all go away for the defendant unless they're going to make some effort for me.