***DISCONTINUED*** Lowell Court Strike out application

[R0b]

Re: Lowell Court Strike out application

The information above is only guidance and it can be difficult to obtain a strike out, it will be who is most convincing on the day. I would have gone a different way about it but since your in the position you are now, you either withdraw the application or you press on with it - that is a decision only you can make yourself.

As you say, you will need to focus on your own facts of the case and apply it to the grounds of strike out and convince the judge it should not go any further. If you do proceed, fingers crossed the judge goes your way or at least makes an Unless Order

[lebaronboogy]

Re: Lowell Court Strike out application

I've won the case, just received from Lowell's notice of discontinuance, I'm not sure how to get back my £255 for the Strike Out Application but I'm happy . Many thanks for all the help. If anyone's reading this
please don't let this crooks get anything, many thanks Rob, all the best!

[Amethyst]

Re: Lowell Court Strike out application

WOOOHOOOOOOOOOOO well done & [MENTION=71570]R0b[/MENTION]

You should write to the claimant and ask them for the strike out app money - I haven't done one of those letters for ages .. I think [MENTION=5354]mystery1[/MENTION] or [MENTION=551]pt2537[/MENTION] have a 'template' about - have a look around if not I'll try dig something up when I get back in this eve. Did you ask for the app costs to be awarded when you made the app ?

[lebaronboogy]

Re: ***DISCONTINUED*** Lowell Court Strike out application

It was stated in the Unless Order from the Court..."the claimant to pay for the Strike Out Application " in case they'll lose

[Amethyst]

Re: ***DISCONTINUED*** Lowell Court Strike out application

Nice - in that case it is just a case of a covering letter with a copy of the unless order reminding them of that and telling them how to pay you

[R0b]

Re: ***DISCONTINUED*** Lowell Court Strike out application

Well done on this! So Lowell have discontinued their claim against you but the Strike Out Application is still continuing I presume unless you have notified the court and withdrawn it? I've never heard or seen a position before where the party discontinues the claim before the hearing of a strike out application.

Certainly a letter to Lowell to seek the costs of your application back since they have now discontinued and there is not a need anymore for the strike out hearing to go ahead. However if they refuse, then I can't see any reason why you cannot tell them that you will apply to the court seeking the costs of the strike out application (and possibly more) whether thats attending the hearing of the 7th or by writing to the court.

Alternatively you don't pursue it if they don't pay up and you write it off with a win.
[MENTION=6]Amethyst[/MENTION], I think he means the draft order as part of the strike out application.

[mystery1]

Re: Lowell Court Strike out application

WOOOHOOOOOOOOOOO well done & [MENTION=71570]R0b[/MENTION]

You should write to the claimant and ask them for the strike out app money - I haven't done one of those letters for ages .. I think [MENTION=5354]mystery1[/MENTION] or [MENTION=551]pt2537[/MENTION] have a 'template' about - have a look around if not I'll try dig something up when I get back in this eve. Did you ask for the app costs to be awarded when you made the app ?

A letter isn't really the way to do it, although it can work. (I mean writing to the court not a simple letter to the claimant) An application can succeed but is obviously costly unless you win https://consumercreditlitigationandd...s-cpr-27-142g/

However, if a judge has included such costs as part of an order then just write to the claimant and remind the of the fact and tell them you want it.

M1

[lebaronboogy]

Re: Lowell Court Strike out application

Hi,

I've called Lowell yesterday and they said that they won't pay me the £255 for the Strike Out Application...I've got this letter as prove but I'm not sure if this is enough to be successful, I've received the discontinuation letter from the Court as well. What should I write to the Court? I think it should be wise just to give up. Many Thanks

[Amethyst]

Re: Lowell Court Strike out application

Okay so you didn't get an actual order from the court stating that if the documents weren't supplied the claim would be struck out and costs of the app awarded, the copy you've posted is your draft order from your application ? which seems to say if the claimant fails to comply with the provision of docs a further application would be made, and the costs of that awarded to the defendant. In which case I'm not sure it's worth chasing - did you send a copy of that draft order to the claimants/sols and give them a date by which to provide docs or withdraw etc?

[R0b]

Re: ***DISCONTINUED*** Lowell Court Strike out application

Adding to Amethyst's point, has the claim been allocated to the small claims track yet (if not you are entitled to costs before discontinuance)? Why did Lowell refuse to pay for the application fees?

I've not come across a case where a claimant has discontinued in light of a strike out application and a date has been fixed to hear the strike out, though I would say there's two possible options you could have.

Option 1 - Withdraw your application
As Amethyst has said, it may not be worth pursuing but this is subjective and it is up to you if you agree or not. You've paid £255 which is roughly half of what the claim is for (and Lowell get none of it), you've won and just simply chalk it up as a loss.

Option 2 - Notify the court and attend the hearing
In theory, as Lowell have served a discontinuance that should be the end of the claim and the strike out application, except that you have incurred a cost of £255. There is a provision in the CPR Part 38 (38.4) that gives the judge unfettered discretion to set aside the discontinuance and given the lateness of the discontinuance 7-8 days before trial, you could make an application on the day of the hearing to set it aside and therefore the strike out hearing can go ahead if the judge agrees.

Possible arguments for setting aside the discontinuance?
Aside from the discretion to set it aside, the overriding objective sets out a need to deal with cases justly and fairly. Lowell (I assume) didn't engage at all throughout the claim's process in providing you with the documents you need, resulting in the application to strike out, and presumably didn't engage with the court to let them know whether they would resist the application.

You could argue that inferences could be drawn from serving a discontinuance at such a late stage with no reason for discontinuing i.e. they are deliberately trying to avoid the possibility of costs should they be unsuccessful. You could add to that by explaining Lowell's conduct throughout the claim and the strike out application has been unreasonable e.g. failing to co-operate for requests of documents, failing to respond to the application to strike out (if they have done nothing). The court shouldn't encourage such a late discontinuance which would produce and inherently unfair result for you as the defendant in not being able to enforce any costs against Lowell resulting from the strike out application.

In the circumstances, the judge should exercise his/her discretion to set aside the discontinuance in order to deal with the case fairly and that the court should hear the application to strike out.

The risks of going to court?
If the judge does indeed set aside the discontinuance but then chooses not to strike out the claim then the risk to you is that the claim will continue to trial unless Lowell decide to discontinue at a later stage. Depending on whether Lowell turned up to the hearing they may be awarded costs for that day or the costs may be reserved until conclusion of the trial. Although you could perhaps argue against any costs in favour of Lowell due to their conduct throughout and/or since they have discontinued once there is a real risk they will discontinue again - so costs ought to be reserved and in the event of Lowell discontinuing at a later date they will pay your costs of application.

As I've said, I am not aware of any cases that have argued this point before so you would be taking a risk, and most people would be happy with the discontinuance though I can understand why you might wish to pursue it given the alleged debt is double what you've paid already. If you did want to pursue it then perhaps you should put it in writing to Lowell of your intention to attend the hearing and you do not agree with the discontinuance being served at a late stage, and that you will be seeking your application costs plus costs incidental to it. Suggest a deadline to agree for them to pay your costs in your bank (Wednesday?) otherwise you will serve a schedule of costs on them and the court relating to the application.

Again, I am not saying you have to go to court on this and the points above are purely my own personal view so you should think carefully before making a decision, but the two options are the only outcomes I can think of.

[lebaronboogy]

Re: ***DISCONTINUED*** Lowell Court Strike out application

Exactly, this piece of paper it's stamped 19th of January from the Court...

[lebaronboogy]

Re: ***DISCONTINUED*** Lowell Court Strike out application

Good
point Rob, I
think I will rest my case...there is no point of digging any further...I am really happy for getting away with half of the claim and the fact that I haven't paid anything to Lowells. It was a good experience, I've got two more Lowells accounts which they can chase me further for so this case has been a great example for me...and one more overdraft with 1st Credit which I believe that they're similar to Lowells so I cannot wait to fight them if necessary. I could have used the £255( £50 I wanted to use for the VIP here ) but I'm quite sure I will be able to get the VIP at a point. Thank you very much for all the help and keep up the good work, all the best!

[R0b]

Re: ***DISCONTINUED*** Lowell Court Strike out application

It may be a wise decision, especially if you have multiple disputes ongoing at the moment, having one dispute can be stressful enough!

Just remember to keep all paperwork and a copy of it saved somewhere in case you need to refer back to it. Also chase the court up to confirm the clam is discontinued.

[mystery1]

Re: ***DISCONTINUED*** Lowell Court Strike out application



Is that part of you application or from the court ?

M1

[lebaronboogy]

Re: ***DISCONTINUED*** Lowell Court Strike out application

I've sent 2 copies of this Unless Order one to the solicitor and one to the Court, this one came back through the post stamped in a red ink by the Court with an answer as well, I will upload it in a few minutes