Discontinuing a claim - potential costs

[heisenberg]

Dear all,

Does anyone know how likely it is that a County Court Judge would issue a Costs Order after a claim is withdrawn or discontinued in the small claims track shortly after the other side has served a defence?

I understand that a Judge would only do this when he/she believes that a party has acted unreasonably or vexatiously. Is this correct?

I have been briefly advised by a solicitor not to bring a claim (though I remain unclear on this) but was similarly advised not to bring a separate claim recently and it appears I have just won that case.

Unfortunately, I am dealing with an international law firm (DAC Beachcroft) who have sent me a 13 page response to a letter before action. Is it correct that such a firm could charge up to £1,000 per page?

Many thanks.

[Amethyst]

Re: Discontinuing a clam - potential costs

The case you've 'won' was by default. There could be a set-aside application. So unfortunately that is nothing to rely on in bringing a similar claim.

If a claim is discontinued after defence then yes, the other party could apply for wasted costs, and they could be substantial.

Suing these giant law firms isn't a great plan unless your case is absolutely rock solid.

Liability for costs

38.6

(1) Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.

(2) If proceedings are only partly discontinued –

(a) the claimant is liable under paragraph (1) for costs relating only to the part of the proceedings which he is discontinuing; and

(b) unless the court orders otherwise, the costs which the claimant is liable to pay must not be assessed until the conclusion of the rest of the proceedings.

(3) This rule does not apply to claims allocated to the small claims track.


( Just so you are aware, keeping the value under £10k does not guarantee the claim will be allocated to small claims, and small claims does not protect you from costs if you are unreasonable or vexatious )

[R0b]

Re: Discontinuing a clam - potential costs

Yes, you could be liable quite substantially as pointed out by Amethys if you discontinue before the claim is allocated to the small claims track. That being said, there is some case law out there where the judge can make an order of costs or no order to costs even before the claim has been allocated on the basis that the claim would likely have been allocated to the small claims track.

They would have to bring a claim against you for costs, however you could certainly circumvent the allegation that you have been vexatious or unreasonable by considering further legal advice after the service of the defence i.e. a second opinion and highlight the fact that you initially took advice which was to proceed, and then sought further advice which on the basis of the defence was to not proceed or there was an unlikely chance of success. therefore on that reasoning and in the interested of costs for both parties you decided to withdraw your claim.

Of course you should at least wait for the claim to be allocated to the small claims track though, but the award of costs is certainly at the discretion of the judge and by taking advice could be shown to mean that you have not acted unreasonably.

[heisenberg]

Re: Discontinuing a clam - potential costs

The case you've 'won' was by default. There could be a set-aside application. So unfortunately that is nothing to rely on in bringing a similar claim.

If a claim is discontinued after defence then yes, the other party could apply for wasted costs, and they could be substantial.

Suing these giant law firms isn't a great plan unless your case is absolutely rock solid.

Liability for costs

38.6

(1) Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.

(2) If proceedings are only partly discontinued –

(a) the claimant is liable under paragraph (1) for costs relating only to the part of the proceedings which he is discontinuing; and

(b) unless the court orders otherwise, the costs which the claimant is liable to pay must not be assessed until the conclusion of the rest of the proceedings.

(3) This rule does not apply to claims allocated to the small claims track.


( Just so you are aware, keeping the value under £10k does not guarantee the claim will be allocated to small claims, and small claims does not protect you from costs if you are unreasonable or vexatious )

Thanks Amethyst.

I would suggest that it is unlikely, or otherwise unreasonable, that the other side would now suddenly submit a defence when it has ignored a letter before action and failed to have regard for court deadlines. A County Court Judgement has been entered.

I am not suing a giant law firm. They have been instructed by a NHS Trust who I am considering bringing a claim against.

I understand that a party can apply for wasted costs but is such an application only granted when the other side is deemed by a Judge to have acted unreasonably or vexatiously?

What is the point then of discontinuing a claim then when you could pursue it to a hearing and, if you lose, then only pay limited costs?

[heisenberg]

Re: Discontinuing a clam - potential costs

Yes, you could be liable quite substantially as pointed out by Amethys if you discontinue before the claim is allocated to the small claims track. That being said, there is some case law out there where the judge can make an order of costs or no order to costs even before the claim has been allocated on the basis that the claim would likely have been allocated to the small claims track.

They would have to bring a claim against you for costs, however you could certainly circumvent the allegation that you have been vexatious or unreasonable by considering further legal advice after the service of the defence i.e. a second opinion and highlight the fact that you initially took advice which was to proceed, and then sought further advice which on the basis of the defence was to not proceed or there was an unlikely chance of success. therefore on that reasoning and in the interested of costs for both parties you decided to withdraw your claim.

Of course you should at least wait for the claim to be allocated to the small claims track though, but the award of costs is certainly at the discretion of the judge and by taking advice could be shown to mean that you have not acted unreasonably.

Thanks Rob.

Unfortunately the (unfavourable) advice I have received has not been comprehensive and solicitors are not infallible. Just because a solicitor believes I have no case does not mean I will not go and and win it or that the case will settle.

It could well be the case that the solicitor knows that I am not fighting a fair fight and therefore I am likely to lose.

I consider it wholly unfair that a large organisation such as an NHS Trust can exercise its government might and instruct a giant law firm to do its dirty work and seek unethical methods of gracefully disposing of significant unethical behaviour. I carry the greatest risk here by far.

What is more sickening is that the likes of you and me pay for this through taxes.

It is worth uploading the draft Particulars of Claim here to see if I am likely to get a Costs Order against me?

[wales01man]

Re: Discontinuing a clam - potential costs

You cannot expect a NHS trust not to defend any claim with the most expensive Legal help they can get after all the NHS legal budget must run into big millions if they win they hope to claim the fees off a claimant if they lose it comes out of the Budget.
I am not condoning their actions but with public money you want the best, if the claim is Vexatious or false you will pay the penalty if the Judge sides with them .

You are playing the big boys now with big budgets

[heisenberg]

Re: Discontinuing a clam - potential costs

You cannot expect a NHS trust not to defend any claim with the most expensive Legal help they can get after all the NHS legal budget must run into big millions if they win they hope to claim the fees off a claimant if they lose it comes out of the Budget.
I am not condoning their actions but with public money you want the best, if the claim is Vexatious or false you will pay the penalty if the Judge sides with them .

You are playing the big boys now with big budgets

Agreed. They make be absolutely sick to my core which is quite ironic bearing in mind they are a health service provider with an alleged duty of care.

I am also not surprised that the NHS is running at a loss bearing in mind its exorbitant legal bill.

- - - Updated - - -

Is £1,000 a page the going rate these days? Seems exorbitant!

[wales01man]

Re: Discontinuing a clam - potential costs

£1000 a page cannot see a judge accepting that

[heisenberg]

Re: Discontinuing a clam - potential costs

How does the 'justice system' expect a disabled person, who receives no advocacy or representation through legal aid, to carry the costs risk of issuing proceedings?

Further, how is one to reasonably anticipate what a Judge may regard as ‘complex’?

Moreover, presumably even if the claim is only worth a few hundred pounds there is little reassurance that a Judge may not still assign the case to the fast track?

Who faces the most risk here? People like me. I imagine the NHS isn't particularly concerned as the respective employees still receive their salaries win or lose. Any loss comes out of the taxpayer’s purse.

Where is the access to justice here?

The amount of absolute tosh that has been drafted into their response to my pre-action letter really sets the standard in terms of the morally deprived depths they are willing to sink to.

I'm off to go vomit...

[Amethyst]

Re: Discontinuing a clam - potential costs

That is why solicitors firms take on cases on a conditional fee arrangement ( eg no win no fee - particularly negiligence and personal injury type cases) - but they have to assess that there is over 50% chance of winning before they can even consider taking the case on.

[heisenberg]

Re: Discontinuing a clam - potential costs

That is why solicitors firms take on cases on a conditional fee arrangement ( eg no win no fee - particularly negiligence and personal injury type cases) - but they have to assess that there is over 50% chance of winning before they can even consider taking the case on.

Thanks Amethyst.

I have indeed looked into that. The problem there is that firms charge in the region of £500 to £1000 just to look at the case. They call this an 'investigation fee'. I can barely afford to survive at the moment so these fees are unaffordable.

I also understand the client stills needs to pay for 'disbursements' and, in some cases, the fees of a barrister.

Even if they do take on the case there is no full assurance that one will win. You are still subject to a Costs Order if you lose.

Speaking of Costs Orders, how would a County Court enforce this when I have no savings and am living on benefits?

[charitynjw]

Re: Discontinuing a clam - potential costs

Have you tried Pro Bono?

http://www.barprobono.org.uk/do-you-need-help.html

[heisenberg]

Re: Discontinuing a clam - potential costs

Have you tried Pro Bono?

http://www.barprobono.org.uk/do-you-need-help.html

Was considering that but consider they may be flooded with requests for assistance. Looks like I need to be referred to them too.

[Amethyst]

Re: Discontinuing a claim - potential costs

Yes you need a referral from either CAB or a law centre.