Small claims Claimant discontinued – Defendant’s costs.

[efpom]

Brief facts
Claimant is a corporate entity.
Defendant, Litigant in person, put up a strong defence.
Hearing called on for 29^th November 2019
Hearing postponed the day before hearing– court “double booked” Not yet relisted.
Small claims track
Further skirmishing.
Today, Claimant discontinued.filed N279
Defendant believes he can prove “unreasonable conduct” – strong evidence.

Procedurally, how does he apply for his costs?

[R0b]

Best option here is to apply to set aside the discontinuance under CPR 38.4 but setting aside alone will just bring the claim back to life so you probably want to combine it with a strike out application. If there are strong grounds for summary judgment defendant may want to consider that too.

Because of the small claims track rules and the Claimant's right to discontinue, I'm not aware of any provisions in the CPR or case law that allows you to recover costs outside of doing the above i.e. simply making an application for costs alone.

CPR27.2(g) does refer to summary procedure but I can't find any reference to what that means other than summary judgment procedure.

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[efpom]

The defendant made a submission on costs 3 days before the hearing was due to be heard, footed on unreasonable conduct by the claimant and invited the court to summery assess them.

On the case law, In Dammermann v Lanyon Bowdler LLP [2017] EWCA Civ 269, the Court of Appeal, in addressing what was meant by "unreasonable conduct" noted that cost cases are "highly fact sensitive" and so it is hard to give general guidance but endorsed the comments enunciated by Sir Thomas Bingham MR's in Ridehalgh v Horsefield [1994] Ch 205, where he said that "The acid test is whether the conduct permits of a reasonable explanation"

On summery judgment, my (shaky) understanding, is that it is a procedure, broad brush, where after a trial of less than a day, the judge having sighted a schedule of costs, assess whether the costs claimed are reasonable, and if not, reduces them "on the spot" rather than sending the schedule out to detailed assessment, by a costs master.

I'm not sure how much further that get's us, but you are probably right, in that the case needs to be brought back to life, via a 38.4 set aside application (I cannot find the court fee for that) to have any chance of getting a costs order.

[R0b]

I'm aware of Dammermann but that related to a live issue where a hearing took place and the question of conduct arose, rather than the set of circumstances here which are different.

CPR 38.6(3) obviously makes it clear that the general presumption about costs being award on discontinuance does not apply to small claims cases. So you could take that as a reverse burden of proof and it is up to the defendant by virtue of 27.14(2)(g) to show why the court should depart from that position.

On the back of the above, you could take a chance on issuing an N244 application seeking an order pursuant to CPR 27.14(2)(g) on the basis of the discontinuance of the claim at a late stage and without any reasonable explanation. Coupled with the conduct throughout the proceedings (or before) then the claimant has been unreasonable in their conduct.

Could be a valid point to say that the fact that CPR 27.14(2)(g) doesn't explicitly state that it is necessary to set aside the discontinuance or that unreasonable conduct must be raised at the end of a hearing, therefore it's open to the court to consider costs following discontinuance and even whether the discontinuance itself was unreasonable conduct, together with any other points that might be raised.

Court fee for setting aside the discontinuance is the usual cost for an N244 application, £255 though nothing to suggest a Part 8 couldn't be done since there is not likely to be a substantial dispute of fact.