Claim struck out missed hearing fee deadline - N244 Application advice on next steps

[Kavo123]

Hi All, I am the claimant for small claims case.

I missed the hearing fee deadline as I believed it was for defendant to pay as they did not attend the mediation and therefore it was there lack of cooperation which forced the claim to go to court. I emailed the court the same day explaining the error and that i can pay court fees today, i also followed up with a phone call.

When Speaking to HMCTS over the phone and they said I could complete a N244 to reinstate the case and they understanding was I could do this without a hearing.

I then called Support through courts to help complete the N244 application form who again said these types of applications do not need hearings.

I have submitted the form to the county court via email and received a call back from the court saying it would require a hearing and asked to pay £313. I stated the above about not require a hearing and if one was required i would just start new claim proceedings as the costs would be much lower. They said they would check with a judge and let me know if it can proceed without hearing.

10 days later i receive a letter in the post stating a hearing date in July for the N244 application has been set for 30 minutes.

I don't quite understand why a hearing is required as there is nothing really to say except all the evidence i gave on the N244, stating it was an error on my behalf and tried to rectify it in less than 12 hours. I am also not sure if the administrator just decided to proceed with my N244 application without asking a judge. Could that be a possibility?

It is my understanding that a hearing is not required for a N244 if either 1.All the parties agree with the order and accept the case to be reinstated or 2. all the parties agree that the court should deal with the application without a hearing.

Am I right in saying my next steps are

• Email defendant ask for them to confirm they are happy for claim to be reinstated or judge to decide without a hearing.

• If defendant is happy for claim without hearing forward email to court saying that a hearing is not required as previously stated noting the N244 guidance

• If defendant says they do not agree and wish to pursue a hearing email the county court asking them to rescind teh N244 application as they processed my application without my approval and raise a compliant? I don't see the point in paying a £313 hearing fee when i can begin proceedings again at a much lower rate and there is a chance my claim wont be reinstated.
  
  Also I read in another post that they should issue a strike out warning? Is that correct I just received the original hearing notice then an email when the deadline passed saying my clam has been struck out.
  
  Any advice would be greatly appreciated.

[atticus]

You will need to make an application asking the court to give you "relief from sanctions" and to reinstate your claim. Up to you whether to do that.

On the question of a strike out warning, read the order requiring you to pay the hearing fee by the specified date: I think that you will find that it states clearly that the consequence of not doing so is that your claim will be automatically struck out.

[Frank1]

Your reason for failing to pay the court fee on time is weak and you could lose at the set aside hearing.
It is probably safer to start a new claim.

[Kavo123]

Thanks for your reply.

I have already drafted and submitted the n244 for relief from sanctions is it usual for application to require a hearing where I just missed the deadline for the court fee?

It's all explained in the form ?

[atticus]

Yes. A hearing is required.

I do not understand the question in your last paragraph.

[Kavo123]

Frank thank you for your response.

The court have emailed me asking for my phone number to arrange the payment of the £313.

In my original phone call with the court I said that both HMCTS and the charity support through court said this request would not usually require a hearing as and that I don't want to apply if it requires a hearing as the cost is so high I might as well start a new claim. The person on the phone said they would check with the judge whether this would require a hearing or not.

Can I email back saying the n244 should not have been processed as per my original call until I heard back confirming the application could be processed without a hearing. Therefore can I ask that you cancel the hearing you have arranged assuming no further costs are involved and that the £313 you have requested is not payable.

If I don't make the £313 payment the court cant order payment can they? I am assuming the claim will be struck out like when I missed the court hearing fee?

[atticus]

If you do not pay the fee the application will not be dealt with. Your claim will remain struck out.

[Frank1]

When you didn't inform the defendant about your application you made a "without notice " application. In this instance the court is likely to require a hearing to ensure fairness.
You should have obtained the other party's consent before submitting your application.
If I was a defendant to a small claim I wouldn't consent to an application to reinstate a claim that had been struck out.
Nor would I want to argue in front of a judge that I believed the defendant should pay the hearing fee before the case has been decided on at the trial.

[Kavo123]

Thanks once again Frank when filling out the form with the guidance of support through court none of this was mentioned.

I suspect as they advised no hearing would be necessary there thoughts were there is no point in getting prior approval.

Am I right in saying if I email the court back saying I do not wish to pay the N244 application fee the application and hearing will be dismissed and claim will remain struck out. Then I can just start again with a fresh claim.

There is no way the court can force payment of the £313 or impose any sanctions on me ?

[Frank1]

An application with consent still incurs a fee of £123. (EX 50)
If the court decides that a hearing is required, the applicant is asked to pay more (£313 less £123).

If you didn't pay £123 I am surprised that court staff processed your application They were wrong to tell you that your application was free.

It is my view that you should email the court, explain that you were led to believe that there was no charge for the application and you now want to withdraw your application so the claim remains dispensed with. Ask them to vacate the court hearing in July.

As the claim was allocated to the small claims track you shouldn't have to pay any of the defendant's legal costs.

[Kavo123]

Hi Frank, when I emailed the N244 form to the court I completed it requesting a judgement without hearing.

I got a call back from the court an hour or so later saying it would require a hearing and would be £313 and asked to make payment over the phone.

I said I was advised by two other parties that it should be without hearing and that there would be no point processing the application if I had to have a hearing given the costs. Hence my non payment of the £123 or the £313.

The person on the phone said I will double check with the judge if it can be done without hearing.

10 days later I get a letter in the post issuing a hearing date.

I have now received an email asking for my phone number to make payment of the £313.

Would it be reasonable to explain the application was not to be processed as per the phone call and as you said for the claim to remain dispersed and hearing vacated?

Could the court pursue me for the £313 or the £123 if I don't make payment?