How to claim LiP costs in small claims where Claimants case is struck out?

[Jasonands]

I am being sued by the Claimant, their claim is being struck out due to non payment of trial fee.

The Claimant has been unreasonable causing me to spend dozens of hours on the claim.

How do I request the Court order my LiP costs to be paid?

Is a letter breaking down my litigant in person costs incurred and explaining the Claimants unreasonable conduct sufficient?

Thank you

[efpom]

Complete form N260 and file with the court - serve a copy on the claimant.
See this thread

https://legalbeagles.info/forums/for...-reasons/page5

[des8]

Disagree with efpom
you need N244 plus court fee £275.

If you are basing a claim for costs on basis unreasonable behaviour it is most unlikely to be successful because of non payment of hearing fee.
The bar for unreasonable behaviour is high (https://www.lpc-law.co.uk/news/the-r...nably-obvious/)

[Jasonands]

Apologies for being vague

The Court made an Order in their letter titled "Notice of Allocation to the Small Claims Track (Hearing)" stating "Unless the claimant pays the trial fee, then the claim will be struck out without further order, and unless the court orders otherwise, you will also be liable for the costs which the defendant has incurred."

Claimant has been unreasonable for many reasons

It seems that the Order allows me to avoid the application fee? It is not clear

Thank you efpom and des8

[efpom]

If the trial fee is not paid, per CPR 3.7A1 “the claim will automatically be struck out without further order of the court, and, unless the court orders otherwise, the claimant will be liable for the costs which the defendant has incurred.”
The effect of CPR 44.9(1)(a) is that if the trial fee is not paid the claimant’s case is automatically struck out and there is automatically deemed to have been a costs order made on the standard basis.
The only matter for judicial scrutiny is the quantum of the costs as given in form N260
On the small claims track, per CPR 27.14 unreasonable behavior must be proved. I would argue that the failure of the claimant to serve a notice of discontinuance and instead elect not to pay the court fee is conclusive proof of an abuse of process i.e. unreasonable behavior.

If I was in the defendant’s shoes, I would therefore simply submit the N256 with a cover note on the abuse of process point.
I have a vague memory of case law on this, but I don’t have time to research that.

[des8]

Well good luck with that but CPR 27.2 (2) states "The other Parts of these [Court Procedure] Rules apply to small claims except to the extent that a rule or a practice direction under this Part limits such application."
So I read that as saying the Special Procedure Rules 27.14 Costs on the Small Claims Track applies.
CPR 27.14. 2 does not allow the Court to make such a costs order.

The very last post on the link in post 2 to an earlier thread reads:
" I've now heard back from the court saying I'd have to make an application for costs using form N244 and paying £275.
So it seems the judge is ignoring CPR 3.7A1 (7) (c)."

I have come across this situation before, but it seems that judges interpret the rules in an individual manner, so go ahead and apply by letter.
You may be successful, on the other hand you might get a response saying apply with N244 and pay fee (and then lose!)

[peeta]

I was told, in small claims no legal costs are awarded anyway?

also, LIP costs such as f loss of income /time as a result of hving to deal with the case, are not even claimable ?

is my understanding wrong? if so, I may also have a claim..so appreciate some clarity from the seniors.

thanks

[des8]

Your understanding is correct.
The current thread is throwing up a discussion because an order has been made by the judge stating "[the claimant] will also be liable for the costs which the defendant has incurred"

This seems to be contrary to CPR rules and it will be interesting to see where it goes.
Of course the claimant might not be aware of CPR and so not challenge the judge's ruling, and so the defendant gets his normally unallowable costs.

[peeta]

thanks for clarifying des8

I could not find the post in this thread which says the judge found claimant liable..could you point me to it pls so that I can understand the circumstances in which Judge has ordered such

a claim against me also was stuck out because claimant did not pay the fee, but courts by their own motion did not find claimant liable. so wondering what exactly happened in this case..

[des8]

It is mentioned in post 4 of this thread.
in my completely untrained opinion that seems to be completely contrary to CPR, and I just wonder if it was an error that has slipped through

[Jasonands]

I sent a costs letter awhile ago to the Court explaining the Order and requesting my costs. (Claim should be struck out and my costs paid per the Order)

The Claimant emailed me 2 days before the Court hearing saying they were discontinuing their claim.

The Court emailed me one day before the Court hearing telling me the claim is discontinued.

Are claimants allowed to discontinue claims 2 days prior to a Court hearing?

According to the Court Order the Claimants case should have been struck out a long time ago as they didn't pay the trial fee, and my costs should have been paid?

My costs are quite extensive for a small claims, I had to spend a huge amount of time on the case. Im arguing the Claimant is unreasonable because they didn't even send a Pre-Action letter among many other things.

Should I make a complaint to the Court?

[jaguarsuk]

I sent a costs letter awhile ago to the Court explaining the Order and requesting my costs. (Claim should be struck out and my costs paid per the Order)

The Claimant emailed me 2 days before the Court hearing saying they were discontinuing their claim.

The Court emailed me one day before the Court hearing telling me the claim is discontinued.

Are claimants allowed to discontinue claims 2 days prior to a Court hearing?

According to the Court Order the Claimants case should have been struck out a long time ago as they didn't pay the trial fee, and my costs should have been paid?

My costs are quite extensive for a small claims, I had to spend a huge amount of time on the case. Im arguing the Claimant is unreasonable because they didn't even send a Pre-Action letter among many other things.

Should I make a complaint to the Court?

The Claimant can issue a Notice of Discontinuance to the court right up to the minute they walk into the court room.

However Discontinuance is covered by CPR Part 38, you might be interested in 38.4 should wish to apply (note the time limit) due to the previous order not having been enacted or due to the previous order you might want to look at 38.6.

I read that as liable for full costs (including the cost of an application to get them), not limited costs as would ordinarily be applied in the Small Claims track, but a judge may interpret that differently.

If you write in the judge will just tell you to apply and pay the fee, you'd be better just applying if you are that set on getting costs.

Or you could write to the Claimant to offer them the offer to settle the costs or you'll file for them, give them 7 days to respond and see what they do. Advise them that if you were to get a costs order that would be a County Court Judgement and may affect their credit score. I don't know if a costs order would go down as a CCJ, but worth a bit of scare mongering to try to get them to play ball.

And as LiP if asked about it you could just say you thought all judgements are reported to credit reference agencies

[efpom]

Have you filed a Form N260?

[Jasonands]

Yes I sent the N260 by email to the Court a long time ago.

"The effect of CPR 44.9(1)(a) is that if the trial fee is not paid the claimant’s case is automatically struck out and there is automatically deemed to have been a costs order made on the standard basis."

I believe this means my costs should be awarded without me paying for an application?

However Discontinuance is covered by CPR Part 38, you might be interested in 38.4 should wish to apply (note the time limit) due to the previous order not having been enacted or due to the previous order you might want to look at 38.6.

Should I apply to have the discontinuance set aside as it conflicts with the Order which states their claim should be struck out (as they didn't pay the trial fee) and my costs paid?

It seems the Court has made an error by allowing the claim to be discontinued as Order states the claim "will be struck out without further order".


Thank you

[jaguarsuk]

You can either apply to have it struck out pursuant to part 38.4 or apply for costs pursuant to 38.6, if it were me I would do the latter because there's not much point having something struck out to then have something in an order applied when you can achieve the same result by just applying for costs as a consequence of the NoD.

You'll need to provide a revised N260 to include the cost of the application.