*** DISCONTINUED *** Unjust Enrichment

[Diana M]

I have not signed a consent order, but obviously want to finalise this if I can. Attached is a draft of one I am going to send to the claimant to see if they will sign one

If the Claim has already been Discontinued (Notice served on you and filled at court) then I don’t see how you can ask the court to make an Order for dismissal (seal a Consent Order) since the claim no longer exists.

Di

[jaguarsuk]

If the Claim has already been Discontinued (Notice served on you and filled at court) then I don’t see how you can ask the court to make an Order for dismissal (seal a Consent Order) since the claim no longer exists.

Di

Yes, I have also received a copy of the sealed Notice of discontinuance from the court with the order vacating the hearing. I suppose I just hope that's the last I hear of them.

Thanks for your assistance.

[pt2537]

If the Claim has already been Discontinued (Notice served on you and filled at court) then I don’t see how you can ask the court to make an Order for dismissal (seal a Consent Order) since the claim no longer exists.

Di

That is not entirely correct,

[quote] Right to apply to have notice of discontinuance set aside

38.4

(1) Where the claimant discontinues under rule 38.2(1) the defendant may apply to have the notice of discontinuance set aside^(GL).

(2) The defendant may not make an application under this rule more than 28 days after the date when the notice of discontinuance was served on him.
[\quote]

You could have the notice set aside and apply for a consent order, but t he real question is what is to be gained from that?

[jaguarsuk]

[QUOTE=pt2537;n1395789]

That is not entirely correct,

Right to apply to have notice of discontinuance set aside

38.4

(1) Where the claimant discontinues under rule 38.2(1) the defendant may apply to have the notice of discontinuance set aside^(GL).

(2) The defendant may not make an application under this rule more than 28 days after the date when the notice of discontinuance was served on him.
[\quote]

You could have the notice set aside and apply for a consent order, but t he real question is what is to be gained from that?

I wouldn't want to pay a fee to apply to set aside and I doubt they'd sign a consent order bearing costs of the application to set aside.

If there was a cost neutral way of doing it the benefit to me would be in having the claim dismissed and that being the end of the matter.

I think it's unlikely that they would apply for consent to resurrect this with the associated fee of making such an application given their hearing fee was only £80 and they appear unwilling to pursue this to hearing at that cost.

[Diana M]

[QUOTE=pt2537[/B];n1395789]

That is not entirely correct,

Right to apply to have notice of discontinuance set aside


38.4

(1) Where the claimant discontinues under rule 38.2(1) the defendant may apply to have the notice of discontinuance set aside^(GL).

(2) The defendant may not make an application under this rule more than 28 days after the date when the notice of discontinuance was served on him.
[\quote]

You could have the notice set aside and apply for a consent order, but the real question is what is to be gained from that?

[QUOTE]


The real question is why would the Defendant want to apply for the Discontinuance to be set aside?

What you're suggesting is a risk with costs consequences if their Application to set aside were to be unsuccessful.

The OP admits their liable for the disputed sum and had made offers to settle so it may make sense to quit while they are ahead.

I wanted to settle the matter and again wrote to them to seek an agreement at the affordable rate, also stating that had they just been reasonable they'd be getting their money back. . .

. . . . I responded to challenge that I was at fault for the payment, corrected a lot of the misleading statements made referring to previous correspondence, put forward an affordable repayment plan and have yet to receive a reply.

Re: Unjust Enrichment

Thanks for the response, you're correct the offers were not made with a "without predjudice" statement. Hindsight is wonderful eh?

By offering repayment I assume I have surrendered any argument that they were made as goodwill gestures and now bind me?

Re: Unjust Enrichment

The fact that you have had a monthly salary increase of some £700, the Court may find it difficult to accept that you are unable to deal with the sum outstanding to C. You were made aware of the error reasonably quickly after it had occurred.

This was a £700 claim which it appears you no longer have to pay. You admit you owe it so are presumably happy with the result (a Discontinuance).

An Application to set aside the Discontinuance may cost you £255. If you are unsuccessful in that Application you may have to pay the other side's legal costs.

You must do what feels right for you having done the maths.

Di

[jaguarsuk]

This was a £700 claim which it appears you no longer have to pay. You admit you owe it so are presumably happy with the result (a Discontinuance).

An Application to set aside the Discontinuance may cost you £255. If you are unsuccessful in that Application you may have to pay the other side's legal costs.

You must do what feels right for you having done the maths.

Di

I assume their application for permission to file another claim would also cost them £255? If so given they haven't the desire to pay £80 I'm 99% sure this is the end of it and I'm happy with that.

It would nice to be able to have the security that this is the end of it with a dismissal, but you can't always get what is nice!

[Joanna C]

I doubt an application to have the notice of discontinuance set aside in these circumstances would succeed. An application such as this would normally be used in circumstances where there is some abuse of the process of the court (i.e a claimant has discontinued in circumstances where the defendant had to first consent) , or for the purposes of costs issues but in this case it was a small claim - so no right to costs unless the claimant has acted unreasonably such as discontinuing a couple of days before hearing etc.

They are unlikely to try and restart proceedings in this case given the low value.