Please help!Letter from Newlyn

Coupon-mad

Looks like the Judge is prepared to consider a detailed costs assessment from you, and proof that you paid £215.  

I think you just need to word it more formally and supply a new draft order.  One that's worded differently, not worded for the CCJ to be set aside this time

Le_Kirk

What did the order say that you/your daughter received after the set-aside hearing?  Did it say costs reserved or was it silent on the matter?

nikkietoni

Not sure... she received this ..
General form of judgment or order  said 
It is ordered that:
1/The judgment in default entered on .....to be set aside pursuant to CPR 13.3
2/The defendant shall file and serve a fully pleaded Defence by 4pm on ...
3/There be no order as to the costs of the application


 

Le_Kirk

There to be no order to costs, so the judge has done you no favours by not reserving costs (as presumably your draft order would have stated) and the PPC has decided to cut it's losses and run.  You will have to then follow what the court said and have a mind to the advice given by @Coupon-mad above.

nikkietoni

thanks for your help but I am unsure what I should say in a draft order. Do you mean to put that as  We stated in the draft order submitted previously “should the claimant discontinue the claim after the CCJ is set aside, paragraph 2(costs reserved) shall cease to have effect and the Claimant shall pay the Defendant’s costs summarily assessed at £215. “

Also In the defence letter submitted to court prior to the case being heard (and before the discontinuance from Gladstones/horizon we say...
”in the matter of costs :If the claim is not struck out the Defendant invites the court to consider an award of the Defendant’s summary costs Assessment, to be filed and served at Witness Statement stage in anticipation of a typical late Notice of Discontinuance  from this claimant.At NOD stage or at a hearing if the case proceeds that far , the Court will be taken to facts to support a finding of wholly unreasonable conduct by the claimant . Pursuant to CPR 46.5 whilst indemnity costs cannot exceed two thirds of the applicable rate if using legal representation, the Defendant seeks LiP costs and the cost of the CCJ set-aside costs of £215 to be refunded by the Claimant to the Defendant (even if they issue a NoD.) 
Would it be okay to use this statement.
Also she was facing extreme hardship paying the set aside fee and had to borrow the £215.A letter to this effect was sent prior to the set aside case . This was why the court reduced her fee by £50.
so she could send the Defence letter again and also explain how she had moved home and the pcn and then the  ccj was never forwarded to her so she had no idea about either and the parking company did not try to find her. She had no choice but to contest the ccj when it was pointed out to her by an accountant that one had been administered to her and it  was affecting her credit  rating .
so basically repeat all her previous arguments ?  

Coupon-mad

Don't send the defence letter again.

Just do a new draft order of what you want the Court to now order and state that the Claimant has caused immense distress and financial distress.  The case took a monumental effort from the Defendant, who was facing extreme hardship paying the set aside fee and had to borrow the £215.  A letter to this effect was sent prior to the set aside case, which was why the court reduced her fee by £50 but after all of this and disputing the set aside despite not taking the required steps to  check her address, the Claimant has simply discontinued their claim.  This must be unreasonable conduct, when taken together, and the Defendant seeks her costs as per the appended costs assessment.

nikkietoni

thanks so much @Coupon-mad I was a bit lost there but you have explained it perfectly again. Really appreciated. I will keep you posted x

nikkietoni

Sorry to mither...Is this okay..i am unsure what you mean by an appended costs assessment as I only want the £215 back which was the set aside fee.I have the receipt for that.

DRAFT ORDER TO APPLY FOR COSTS

HORIZON PARKING LIMITED (CLAIMANT)

AND

(DEFENDANT)

Complaint Ref 

Claim no 

 I would like to apply and appeal for the repayment from the Claimant (Parking Company Horizon) £215 which I had to pay for a set aside of a CCJ. I presumed this would be ordered by the Court to reserve and repay costs pursuant to CPR 38 in light of the claimant discontinuing the claim. This was stated in the draft order I submitted.

 I am enclosing a copy of the receipt for the payment of £215 on 3rd March 2020 to CCBC office.

 Rule 38.6 states “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 the notice of discontinuance was served on the defendant”

 I therefore believe that it was unfair that the Claimant was able to submit a late discontinuance order and not pay the costs of £215 back to me.

The claimant caused me immense distress both financial and psychological. The case took a monumental effort from me to deal with as I suffer with long term mental health issues including anxiety and having to research and organise the defence for the case was extremely stressful.

 I mention all this in my Defence Papers which were submitted to the court.I was facing extreme hardship and had to borrow the £215 which was the set-aside fee. A letter to this effect was sent to the Court on application and I  had my fee reduced by £50 which I was grateful for.

 The claimant put me through all this stress and anxiety and they then disputed the set-aside despite the fact the CCJ could have been avoided if they had taken the required steps and researched my address better and checked the details fully but they then simply discontinued their claim.

This must be unreasonable conduct when taken all together and I therefore do seek my costs as per the appended costs assessment.

Coupon-mad

 I would like to apply and appeal for the repayment from the Claimant (Parking Company Horizon) £215 

You are neither 'applying' nor 'appealing' because they both cost money.  The judicial decision invited you to write in, so change to this and don't bother with a costs assessment as long as you attach the proof of paying £215:


In response to the Judicial Decision sent on xx/xx/2020 which invited me to write to the court regarding my costs, pursuant to CPR 38 in the light of the Claimant discontinuing their claim after initially disputing my set aside application, this is my response. 

The Claimant is aware that I have incurred an application fee in this case already.  I am enclosing a copy of the receipt for the payment of £215 on 3rd March 2020 to CCBC office.

It is my position that it was unfair that the Claimant was able to submit a late discontinuance order and not pay the costs of £215 back to me.  Their conduct appears to be wholly unreasonable, having initially submitted 17 pages of submissions to the court in dispute of my set aside application, stating that there was ''no real prospect of the Defendant successfully defending the Claim''.  Clearly this was never the case and it is noted that the Claimant was represented and would know that if they intended to discontinue this claim, the proper conduct would have been to consent to the application in order to save expense and to minimise time spent on the case, pursuant to CPR1.  Even if the court does not believe that the Claimant's conduct was unreasonable, CPR 38.6 does not require a finding of unreasonable conduct because a Claimant in this position ''is liable'':

Rule 38.6 states “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 the notice of discontinuance was served on the defendant”

The claimant caused me immense distress both financial and psychological. The case took a monumental effort from me to deal with as I suffer with long term mental health issues including anxiety and having to research and organise the defence for the case was extremely stressful.  The Claimant was well aware of my position because I mentioned all this in my Defence Papers which were submitted to the court and copied to the Claimant. I was facing extreme hardship and had to borrow the £215 which was the set-aside fee. A letter to this effect was sent to the Court on application and I had my fee reduced by £40 which I was grateful for.

The claimant put me through all this stress and anxiety and they then disputed the set-aside despite the fact the CCJ could have been avoided if they had taken the required steps and researched my address better and checked the details fully but they then simply discontinued their claim.

This must be unreasonable conduct when taken all together and I therefore do seek my costs as per the appended receipt. costs assessment.

signed

name (print)

dated

DRAFT ORDER

UPON hearing from the Defendant who was invited to write to the court regarding the costs she incurred prior to the Claimant discontinuing the claim and noting that she paid £215 for the application to set aside the claim which was subsequently discontinued despite the application being disputed, IT IS ORDERED THAT:

The Claimant is to pay the Defendant the sum of £215 within 14 days of service of this Order, being the costs incurred prior to the claim being discontinued, pursuant to CPR 38.6.

Date: blank/2020

nikkietoni

Thankyou so much for your help @Coupon-mad it is really appreciated. Just waiting for a reply x