Default costs certificate wrongly issued?

[Derek Grim]

I recently (for unavoidable reasons) discontinued a claim at the County Court (it had been allocated to the Multi-Track), and I know that I am liable for the other side's costs as a result.

I was acting as a Litigant in Person. The other side was represented by lawyers.

The lawyers sent me a Bill of Costs. They said that they would apply for a Detailed Assessment Hearing if the bill wasn't paid.

I wrote back within the 21-day time limit, setting out my Points of Dispute and making an offer.

The lawyers then wrote to me again, but their second letter was written in a way that suggested they hadn't read my reply, as they simply enclosed the original Bill of Costs, and made no reference whatsoever to my own letter or the offer it contained. It was almost like a 'reminder' letter rather than a reply to my own letter.

So I wrote back again and reiterated my Points of Dispute and the offer contained in my original letter.

I received no further reply (this all took place in February).

Now, to my shock, I have received through the post a letter from the court enclosing a Default Costs Certificate demanding the full amount of the costs (£7,226) demanded by the other side. The covering letter states that the certificate has been issued on the application of the other side and because "no points of dispute were received by this court".

I immediately emailed the other side's lawyers, asking why they had applied for a Default Costs Certificate before responding properly to my letters and offer. In their reply to my email, they admitted that there had been a "mix-up" at their end. They had received my letters, but they had not been opened or read. They also accepted that they should not have applied for a Default Costs Certificate in those circumstances.

I have accepted their apology. However, my question is: was it right for the court to issue the Default Costs Certificate simply on the application of the other side? Surely there must be a process in place that allows the paying party (in this case me) to put their case before the court issues the certificate. Otherwise it is surely a recipe for bad-faith applications. Also, why does the court's letter state: "No points of dispute were received by this court"? I was not aware that the paying party was obliged to send his Points of Dispute to the court. Surely the initial correspondence must take place between only the two parties, and the court only becomes involved when agreement cannot be reached and the receiving party applies for a Detailed Assessment Hearing? I might be wrong on that, but I cannot see that it is necessary to copy the court into every bit of correspondence before any Detailed Assessment Hearing has even been agreed!

I have written to the court and asked that the Default Costs Certificate be set aside. I'm not sure of the process for that, but there is no way I am going to pay the full Bill of Costs without having the chance to have my say first.

Any advice appreciated.

[R0b]

Hi,

Not too familiar with cost certificates but I believe an application needs to be made to set the default costs certificate aside using N244 form. The bill of costs, copy of the costs certificate and your points of dispute should be included in the application together with evidence and supporting information as to why the default certificate should be set aside.

The phrase "mix-up" used by the other side is probably another way of saying they were negligent and I would love to hear why they failed to open or read your points of dispute though it may be that they thought they could get away with it if you are litigant in person.

I would suggest that you write to the other side and get them to make a with notice application to set aside the default costs certificate given that this is their error and the fact they have applied for a default costs certificate on the basis that there was no points of dispute raised, is misleading the court. You should usually make the application promptly within 14 days so if the other side doesn't do it, then you need to submit that application yourself. Make sure you seek your costs of the application at the £19 per hour litigant in person rate.