Claiming costs for a botched application hearing

[Jackisin]

Hi Legal Beagles. Big time fan here.

I took a gymnasium company chain company to Court to get some dues back and the Judge threw it out because the Particulars of Claim did not identify a cause of action. The claim was for £150.

I then started another claim with a correct cause of action identified (i.e. should never have taken the money as the membership was cancelled, and failed to refund after telling me they would), not knowing the precise laws re: second bite of the cheery. The gym chain did not file a Defence in time, and I was awarded £175 default Judgement on Moneyclaimonline.

They then filed a n application which cost them £250 to ask for the Default to be removed. they knowingly filed their Defence late, and also state they have a real chance/prospect of success re: second bite of the cherry argument.

They then failed to carry out Court instructions and arrange a telephone hearing as instructed. their email to Court to explain themselves states they did not know how, despite having three weeks to arrange. In this time I spent six hours preparing my case and for this telephone hearing for their application. They convinced the Court to adjourn the hearing to a new hearing after their mistakes arranging the original hearing. I also called them leading up to the original hearing to arrange my telephone number, etc, and they did not respond.

I am annoyed. I am most certainly due this refund. I have emails from them in which they state I will be refunded, and then never refunded.

My questions now are, as I think I will lose the application hearing. Does this mean they could also get the case dismissed at this hearing, or is the application hearing merely a formality to have the case reinstated on the Court's docket and to proceed to trial?

Also, I have found that as a Litigant In Person, I can claim for my lost earnings at £19 per hour.

Can I ask for the now 8 hours spent preparing for both hearings to be covered at this second hearing?

Also, I might not be able to make this second hearing. Could I just tell the Court to dismiss the case entirely, and then bill them for my time for the original botched hearing, and litigate in a new case for these missing earnings if they won't pay?

Thank you

[Jackisin]

Anybody?

[MIKE770]

hang on it is sunday, hlp will be gere soon

[Jackisin]

*BUMP*

[Jackisin]

***BUMP***

[Jackisin]

des8 ?

[des8]

The application hearing will only set aside the original default, and the case will then continue to trial.

What was the wording used when your original claim was dismissed?

What is the wording of your Particulars of claim for your second attempt?
What is the wording of their defence?

This is small claims track and your costs are very limited and only if you win.
Only if the winner can show the other side acted unreasonably can they claim costs such as you mention

[CLL1]

Odds are that the claim will be dismissed at the hearing. Set aside hearings are rarely used for a full trial (because app hearings are short and not designed for that) but in the circumstances (i.e. submitting a second application is an abuse of process) it's likely the judge will be prepared to dismiss the claim, and as it is an application hearing, costs *may* be claimable. Depends how the judge is feeling. The rules say a draft defence should really be submitted with an application to set aside, so I can't see why a judge wouldn't dismiss your claim.

[Jackisin]

"This is small claims track and your costs are very limited and only if you win.
Only if the winner can show the other side acted unreasonably can they claim costs such as you mention"

So could I argue they were unreasonable in mucking up the original application hearing?

[des8]

I doubt your claim for costs would be successful
Examples of unreasonable behaviour:

• A consistent failure to respond to correspondence and/or telephone calls
• A failure to properly set out a case in respect of liability and/or quantum pre-litigation
• An unwillingness to discuss the case and narrow issues
• Dilatory conduct leading to delay
• A claim that is unreasonably made and without merit
• Exaggeration of a claim and/or dishonesty
• A failure to follow the standard Small Claims track directions