Solicitor states I am liable for their costs for hearing if i disagree consent order

[Hope4justice]

Hello. Please help.

I applied for a judgment to be set aside as I didn't get the opportunity to defend my case as I was not living at my address at the time the papers were served. I struggled for months after that to get any kind of legal help and assistance. I thought that I was going to get some free help from a couple of organisations (as they lead me to believe) and then they left me in limbo for months and let me down.

A default judgment was then issued

I applied for a set aside and asked for it to be dealt with without a hearing - unfortunately the judge decided to set a hearing in person.

I also wrote to the claimants asking them if they would agree for it to be set aside and I would refer the judge to my letter re costs if they did not agree. I gave a time frame for them to give a definitive answer and they missed the deadline. In the N244 I stated I wanted to set it aside so I could defend my case. However, I eventually got a response form their solicitors (who I do not correspond with) setting out a Consent order, giving a deadline, and basically saying if I pay what they allege I owe, plus the cost of the draft order (over £100) then they agree to set aside. They state if I do not agree I will be liable for their costs to attend the hearing. I feel this is totally unfair and didn't even know they could do this. They now expect me to pay more and it puts me back in the same position as before, to pay the debt which I dispute and if I don't I have to pay even more money! I feel like I am being held to ransom here. They may aswell have said, we will punch you in the face and if you don't agree you will pay our costs. I am a litigant in person and cannot afford a solicitor as I am in receipt of benefits.

What I want to know is can they dictate this?
Isn't this up to the judge to decide if I should pay their legal costs, not the solicitor to decide?
I asked for it to be set aside without a hearing and the judge decided to have the hearing, not me.

[atticus]

They should not say that. They may say that they will ask the court to order you to pay costs, and the sum they will ask the court to order you to pay.

The judge was correct to say that the other party should have the chance to be heard on your application to set aside judgement.

[Hope4justice]

They should not say that. They may say that they will ask the court to order you to pay costs, and the sum they will ask the court to order you to pay.

The judge was correct to say that the other party should have the chance to be heard on your application to set aside judgment.

Thank you atticus for your response.

The letters I received are titled "Without prejudice save as to costs". With regards to the consent order (which I didn't ask them to draft - I believe I can draft my own?) they state they will file the consent order that they have drafted but I have to pay them £108 for them to file it. Can I file it myself? Is it worth me drafting my own and making a counter offer? There is alos a list attached of all the costs they are claiming.

The consent order states in addition I need to pay the total amount that the default judgment was for (which is heavily padded out with their legal costs).

It goes on to say quote "should you choose not to accept our offer and we are required to proceed to the hearing, we put you on notice that we will be claiming for our additional costs in preparing for and attending the hearing"

They are playing on my fears and so in my anxiety I interpreted that to mean I would be liable for their costs no matter what. Now I have read it back and with your response, they are saying they are going to claim that. But from what you say, ultimately is that still up to the judge?

[atticus]

You can prepare your own, and if the other party signs it, you can file it with the court.

At the risk of stating the very obvious, a consent order is one that is made with the agreement of all necessary parties.

And yes, it is up to the judge. But what you are not telling us is whether you see any problem with the draft order that has been presented to you.

[Hope4justice]

You can prepare your own, and if the other party signs it, you can file it with the court.

At the risk of stating the very obvious, a consent order is one that is made with the agreement of all necessary parties.

And yes, it is up to the judge. But what you are not telling us is whether you see any problem with the draft order that has been presented to you.

I feel that it is unfair - it is heavily weighted in their favour as I would be paying the same amount that they were originally asking for which I obviously dispute (plus the £108 on top), so I would be in no better position. Its the same amount as the default judgment.

Is a consent order only drafted where financial terms have been negotiated?

Or can I draft a consent order on terms that are non financial?

[atticus]

First reach agreement. If you can do that, something can be prepared which records the agreed terms.

[Hope4justice]

First reach agreement. If you can do that, something can be prepared which records the agreed terms.

Not sure how I can do that when I do not know what dates they are claiming from and too and I do not know exactly what they are claiming for i.e. an exact itemised break down. I do not agree with paying their legal costs. I also feel their charges are unreasonable and I would not be able to challenge them if I sign an agreement. This is a residential property service charge issue. I have a set aside hearing to attend. Is it too late to ask for their legal bundle as I have not seen what evidence they are relying on. I'm not sure which track it has been allocated to. The amount is under £10000. I feel like I am going into this blind.

[atticus]

If you are unable to agree terms, then you must go to the hearing of your application.

[JK2054]

Is your claim value more or less than £10k?

[Hope4justice]

less than 10k

[JK2054]

Thanks for that information.

If you win the set aside application then you are unlikely to need to pay their costs however they will make an application anyway most likely

If you show that you have made reasonable efforts to ask for them to consent to the set aside, but they have not done this then if you win you are very unlikely to need to pay costs.

During any application for costs you should refer to CPR 27.14

If you lose you will likely need to pay their costs of attendance.

You don't need to pay their costs by default and the costs of small claims will be very limited so even if they did get costs it will likely be a max of around £100-£200 although it can be more sometimes.