CCJ- Set Aside- CLAIMANT DISCONTINUED

dtnwf

Thank you all for the advice. 

Trying to learn from previous lessons and not just jump in straight away, would someone mind reading this, is it ok to send?

Dear Sir or Madam,

I have been advised by the claimants representatives, Gladstones Solicitors on 5th October 2021, that the Claimant has discontinued with their claim.

CPR r.38.6 states that the claimant is liable for the defendants costs after discontinuance (r.38.6(1)) but that 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)(dg)).”

On this basis I would like to request a costs order be made against the claimant given that New World Facilities East Essex Ltd have behaved unreasonably. When I discovered the default County Court Judgement I promptly applied for this to be set aside. The claimant did not attend the telephone hearing. The judge granted the set aside with a court order (XX-01) stating the claimant reimburse my costs of the £255 application fee and that I file my defence, which I submitted. The Claimant appealed this and a second set aside hearing ensued where it was ordered (XX-02) that I return the £255 fee to the claimant. During this period of time the Claimant was in possession of my defence and refused the offer of mediation.

By tactically discontinuing late and failing to pay the court hearing fee without requesting a relief from sanctions, the claimant has wasted my time, the courts time and money by appealing for the £255 application set aside fee not to have been paid by them, then discontinuing whilst breaching directions of the court. This must be unreasonable conduct and meet the high bar of the Dammerman test.

The most recent Court Order states ‘Unless the Claimant does by 4pm on xxth September 2021 pay the court the trial fee of £25 or file the properly completed application for help with fees, then the claim will be struck out with effect from xxth September 2021 without further order and, unless the Court orders otherwise, you will be liable for the cost which the Defendant has incurred (XX-03).

I am requesting that this is ordered so that I, the Defendant, will be back in the position that I was in, pursuant to Court Procedure Rule 1 and the Overriding objective to deal with cases justly and with minimum cost. I, the Defendant, have incurred significant costs to prepare the defence and witness statements and the costs claimed are shown in the attached costs schedule (XX-04)

 

Yours Faithfully,

Defendant

Fruitcake

I don't understand this part. I think you need to reword it so it makes more sense.

"the claimant has wasted my time, the courts time and money by appealing for the £255 application set aside fee not to have been paid by them,"

dtnwf

Thank you for the reply. Is this better? 

The Claimant, having appealed and the £255 set aside application fee returned, then discontinued their claim whilst breaching directions of the court. By tactically discontinuing late and failing to pay the court hearing fee, without requesting a relief from sanctions, the claimant has wasted my time, the courts time and money. This must be unreasonable conduct and meet the high bar of the Dammerman test.

Coupon-mad

Yep.  I'd add here:

The Claimant appealed this and a second set aside hearing ensued where it was ordered (XX-02) that I return the £255 fee to the claimant. My understanding is my costs then stood reserved, instead, and this legally represented and litigation-experienced Claimant was aware of the risk by their abusive actions in refusing Mediation, pressing ahead but then discontinuing, no doubt hoping to walk away with no sanction for their unreasonable course of conduct.  At every step they were well aware of my costs and I am only asking for the court fee that was at first awarded against them and then reserved, I believed.