Notice of Discontinuance - Claiming Costs

chad888

URGENT MATTER TO BE REFERED TO THE PROCEDURAL JUDGE - DEFENDANTS COST APPLICATION


Dear Sir or Madam,

1. CPR r.38.6 states that the claimant is liable for the defendant's costs after discontinuance (r.38.6(1)) but that this does not apply to claims allocated to the small claims track (r.38.6(3)). However, the white book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(d))." I believe it should actually refer to r.27.14(2)(g) as that is the rule which allows the court to award costs for unreasonable behaviour.

2. On this basis I would like to request a costs order to be made against the Claimant given that Horizon Parking LTD, through their solicitor Gladstones have behaved unreasonably by discontinuing this claim.

3. As the defendant, I have already attended court on two occasions. The first was for a set aside hearing (the defence was posted but did not arrive with the court) in which the Claimant submitted no evidence and the judgement was set aside.

4. The Claimant chose to continue with the claim and the Court ordered that Witness Statements be served 14 days before the hearing on the 21st August 2018. The Claimant posted their Witness Statement on that 14th day, meaning that it did not arrive until 12 days before the hearing, the 9th August. Because of this, I was unable to accurately write a Witness Statement that covered what the Claimant was claiming for as neither the particulars of claim and letter before claim stated what was being claimed for, the reason for doing so nor the evidence that the Claimant would rely on.

5. After the application to set aside was accepted and a hearing was scheduled the Claimant had recruited DCBL enforcement agents (bailiffs) to demand payment. This culminated in bailiffs arriving at my property on the day after the set aside hearing.

6. Upon receiving the Claimants Witness Statement it was clear that the claim was another generic robo-claim. The Witness Statement had no facts relevant to the land claimed, including incorrect time allowances and charges, a copied and pasted Witness Statement from other cases managed by Gladstones available online. It also gave the details that the 3 times that I had stayed in the car park were all within the allowed time by 40-50 minutes (3hrs 09-21m in a 4 hour car park). This was raised to the DDJ during the hearing but as it was not included in the Witness Statement the Solicitors Agent disputed it. The DDJ adjourned the hearing to allow me to produce a Witness Statement covering all of the facts, now that I had a copy of the Claimants Witness Statement.

7. This was produced and delivered to the Claimant and the Court, as soon as the Claimant received my Witness Statement they served a Notice of Discontinuance. This was particularly unfair as in defending this case it has cost more than what the claim was initially for, including the set aside fee, travel expenses and loss of wages for 2 dates in court.

8. A regular litigant such as this parking firm Claimant, using their Trade Body connected Solicitor, should not be able to walk away the week before trial, having cost a consumer some 3x the unfair parking charge that was the subject of the case.

9. If they intended to discontinue they should have been open about it at the adjourned hearing, where costs could have been dealt with on the day. Or following the set aside when they decided to proceed with the case. Or in July 2018 when they were ordered to pay the court fees or the case shall be discontinued.

10. This fundamental injustice and the vexatious nature of this typical cut & paste 'one size fits all' parking charge robo-claim, with no checks being made at any stage about the facts, and using a template copy Witness Statement that failed to show that the Claimant had any claim in law, cannot be described as 'trivial' conduct and that the Claimant cannot just run away the week before the final hearing and expect relief from sanctions.

11. The Defendant avers that this poorly pleaded claim with no detail in the Particulars, and no 'legitimate interest' shown at any point that could have saved this charge from the penalty rule, when considered alongside the context of the late service of their Witness Statement, and then the extremely late discontinuance (after I had already booked my third day off work to fight this matter) amounts to an attempt to ambush a litigant in person with allegations never pleaded in the Particulars, then abandon that Defendant with the burden of costs.

12. This is a gross abuse of process, and that sanctions should be imposed. The Defendant relies upon para 41 of Mitchell v. News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795 which is re-iterated in para 24 of Denton v T H White Ltd [2014] EWCA Civ 906, and asks for costs on the indemnity basis.

13. Costs Schedule attached which includes the reserved costs from the set aside application:















DEFENDANTS SCHEDULE OF COSTS

Ordinary Costs

£255.00 - Set Aside Hearing

£95.00 – Loss of Earnings/Leave for the set aside hearing (capped at £95, wage slip attached at £30.82 per hour)

£5.80 – Parking at Town Hall Car Park Birmingham for the set aside hearing (up to 4 hours parking)

£6.57 – Fuel costs to drive from residence to the set aside hearing (14.6 mile round trip capped at 0.45p per mile)

£95.00 – Loss of Earnings/Leave for the 21/08 claim hearing (capped at £95, wage slip attached at £30.82 per hour)

£5.80 – Parking at Town Hall Car Park Birmingham for the 21/08 hearing (up to 4 hours parking)

£6.57 – Fuel costs to drive from residence to the 21/08 hearing (14.6 mile round trip capped at 0.45p per mile)

£469.74 – Sub-total cost

Further costs for Claimant's unreasonable behaviour, pursuant to Civil Procedure Rule 27.14(2)(g)

£114.00 - Research, preparation and drafting of documents (3 hours for the initial Witness Statament and then a further 3 hours for the DDJ ordered new Witness Statement, at Litigant in Person rate of £19 per hour)

£15.00 - Stationery, printing, photocopying and postage:

Sub-total £129.00



£ 598.74 TOTAL COSTS CLAIMED



This is my letter i will send, any good?

DoaM

Tell us first what you're going to do about post #9 (and similar other posts) ... THEN we'll look at your latest request.

KeithP

12. This is a gross abuse of process, and sanctions should be imposed.

We need something like this in the forum rules.

The_Deep

The OP seems to be a sensible chap, I wonder why he is deliberately ignoring our requests.

Coupon-mad

2. On this basis I would like to request a costs order to be made against the Claimant given that Horizon Parking LTD, [STRIKE]through their solicitor Gladstones[/STRIKE] have behaved unreasonably by their conduct, starting from the very point of issuing baseless parking charges without ever declaring or checking their evidence. Then after months of harassment and debt letters (none with any actual evidence), trying to ambush me with a late WS, and (only once it was exposed in the wasted hearings that the car was within the car park for less than the 4 hour advertised parking licence, all along) then culminating in the final insult of discontinuing this claim.