CCJ after CN

tommoCF

Many thanks Umkomaas and Le_Kirk. Yes, what you outline is correct Umkomaas.
The new letter doesn't mention defence/WS/evidence specifically Le_Kirk - just says to submit in advance copies of all documents on which I intend to rely at the hearing.
Ha, get what you mean re snatching defeat from victory - guess it depends on how you define those two things though? I think my case is solid and as you say the claimant discontinued so probably wasn't overly confident in theirs.. Though the new letter states this is not a small claims trial therefore the court hasn't given directions re a hearing fee, so I guess that affects things?..

Coupon-mad

Show us that latter.  Is it a costs hearing?

tommoCF

The most recent letter says at the top 'Notice of small claims'
Then it has the Claimant + Defendant boxes.
Then it says:

'TAKE NOTICE that the small claims will take place on
date xxx
at the County Court xxxxx
When you should attend - 30 minutes has been allowed for the small claims by telephone'

Then it says please note the case may be released to another judge and has the telephone joining instructions etc.
Nowhere does it mention a costs hearing.

The previous letter, in response to my correspondence to the judge re discontinuance, amended the order made last year of allocation to the small claims track, but that doesn't mention anything about a costs hearing either.

But that letter does state the case is listed for a hearing by telephone with the date and time (which is repeated in the most recent letter).
And at the end of that earlier letter, it says:
"At the hearing the Court will
a) ensure that issues are clarified and that all necessary evidence has been filed;
b) use the hearing as a final hearing if appropriate;
c) alternatively (and if appropriate) give a neutral evaluation of the case to encourage the parties to reach an agreement. If no agreement can be reached, the Judge who deals with the hearing will have no further involvement in the case, except to make a consent order or give further directions order;
d) i(f no agreement can be reached) establish what type of further hearing may be needed (ie a remote hearing or a face to face hearing at the Court Building).'

After that is says 'please note this is not a small claims trial as explained above therefore the court has not given directions regarding a hearing fee.'

Coupon-mad

So it seems you've opened up a can of worms and this is a half-hour Directions Hearing.

What do you plan to say?  Why did you object to them discontinuing, because you want a costs hearing?  Do you have chapter and verse about how they have behaved 'wholly unreasonably' which is the only key to non-standard costs?

I think your risk here is being painted as a time-waster so you need to be ready to answer that.  You could risk adverse costs if you are not careful.

Trouble is, these hearings are heard mostly by rookie Judges.  Was the Discontinuance never accepted by the court?

Le_Kirk

tommoCF said:

c) alternatively (and if appropriate) give a neutral evaluation of the case to encourage the parties to reach an agreement. If no agreement can be reached, the Judge who deals with the hearing will have no further involvement in the case, except to make a consent order or give further directions order;
d) i(f no agreement can be reached) establish what type of further hearing may be needed (ie a remote hearing or a face to face hearing at the Court Building).'

Coupon-mad said:

So it seems you've opened up a can of worms and this is a half-hour Directions Hearing.

Gulp, I got as far as paragraph (c) and decided it would be a directions hearing or sometimes called a mediation hearing!

tommoCF

thanks for the clarification - found it confusing that the latest letter says 'Notice of small claims' if it's actually a Directions Hearing that's scheduled. 

I didn't object to them discontinuing but requested costs since CPR 38.6 doesn't apply to the small claims track. The white book mentions a possibility of costs being awarded if a party behaved 'unreasonably'. Is that clarified as 'wholly unreasonably' somewhere else, and are there definitions or examples of what such behaviour necessarily includes? I phoned the court to check they received the notice of discontinuance, which they did. Didn't know there was the option of its rejection by the court. I wasn't told they never accepted it so I'm guessing they did.

i assume the set-aside fee comes under 'non-standard costs'? It's unfortunate such cases are mostly heard by rookie judges - but handy to know that in advance anyway as I intend to argue the case so grateful for advice on how best to prepare. Especially in the first instance re what to add to defence/WS/exhibits (assuming all of those will still be valid to rely on at the directions hearing?).  

Coupon-mad

You don't need a defence.

Sounds like this is about your costs, which is good.  @Johnersh might know of some Civil Litigation Brief articles about unreasonable conduct but the high bar is defined in this case:

Recoverability of Costs in Small Claims Court: Dammermann v Lanyon Bowdler LLP [2017] EWCA Civ 269

https://www.bailii.org/ew/cases/EWCA/Civ/2017/269.html

Explained here:
https://www.bc-legal.co.uk/bcdn/112-182-recoverability-of-costs-in-small-claims-court-dammermann-v-lanyon-bowdler-llp-2017-ewca-civ-269.html

Johnersh

Thanks @Coupon-mad. That's still good law AFAIK - there's obviously not lots reported.

Conversely there is good authority that it takes more than your case being successful to entitle a claim for unreasonable costs. You need to present a case that the conduct was exceptionally poor, not just that you are disgruntled.

A judgment from the (very good) Yip J

Lastminute.com v Tatiana Moskalevitch

25.... that the unreasonable behaviour that he identified was essentially bringing an unsuccessful claim. His submission was that once the statement accompanying the defence had gone in, the claimant ought to have recognised that her claim could not succeed, and therefore ought to have discontinued, and therefore costs after the date of the statement ought to be recoverable.

26.  I do not accept that that comes close to unreasonable behaviour. If that were the position, then essentially every defended action where a full defence is put forward, and where the claimant then proceeds, would give rise to a costs order, and that would wholly defeat the usual principle that costs on the small claims track are not recoverable. So, I do not accept that the costs below should be recoverable.

tommoCF

many thanks - can see what you mean re high bar for unreasonable behaviour.

Is it apparent from the wording of the two court letters I post above, that at least part of the purpose of the forthcoming hearing definitely won't be to reach a judgement on the case itself (could that not be indicated by 'final hearing if appropriate'?) and then potentially continue as a costs hearing, as I'd requested in my original defence + WS docs? If it's a directions hearing only, is it right that the most recent letter says 'Notice of small claims' at the top?

If it is all just involving the issue and proof of UB now, are my defence/WS and evidence docs no longer of relevance? Some of my correspondence to the judge previously was adapted from Coupon-mad's advice in this thread btw (https://forums.moneysavingexpert.com/discussion/5895897/notice-of-discontinuance-claiming-costs/p1).

Johnersh

You need to be careful.  If you seek costs, have you served a costs schedule?

The usual order is not to award costs, so consider your approach and tactics. I've not read the history to this and make no comment on the merits. 

We're I to do it, i'd be writing to the claimant with details of my costs, explaining that I would rely upon their discontinuance but explaining why I was entitled to costs and asking to agree a figure in order that the hearing to address the costs can be vacated.