Excel - Set aside WON & CASE WON - Excel defeated AGAIN!

Jenni_D

After the set aside then the claim reverts to the start, thus the hearing is the Claimant's hearing not yours (unless you have a counterclaim in place). Therefore if they discontinue then you have no vehicle to make it a costs hearing (unless that was part of the set aside court order, or you have a counterclaim filed). So the wording on the order is important - if costs were reserved then you may miss the boat if they discontinue.

You may have shown the order previously - perhaps show it again?

milkybk

Jenni_D said:

After the set aside then the claim reverts to the start, thus the hearing is the Claimant's hearing not yours (unless you have a counterclaim in place). Therefore if they discontinue then you have no vehicle to make it a costs hearing (unless that was part of the set aside court order, or you have a counterclaim filed). So the wording on the order is important - if costs were reserved then you may miss the boat if they discontinue.

You may have shown the order previously - perhaps show it again?

Hi Jenni - I don't have it to hand (the original letter is in this thread somewhere though), the original letter from the Court stated costs reserved etc. I then queried that and asked for amendments which @Coupon-mad suggested. I emailed my changes and spoke to a Clerk the next day who said they'd been passed on to the Judge who would have an amendment sent out, agreeing with what I'd said. I haven't received this yet but all letters etc have been slow from the courts, so no idea when it will arrive.

So in short, currently, I can't show you anything. Obviously this needs to be avoided at all costs but surely I would simply take them to small claims court over the £255 etc if they tried to get out of it. The DDJ orders are all recorded on video by the court and transcribed, so I could simply request this and it would be open and shut? She was extremely clear in the hearing that the Claimant MUST pay those charges as I had won my set aside. I clarified it with her multiple times too, again this is all recorded by the court.

FYI - Excel haven't refused to pay for £255, I actually emailed them before they contacted me (don't know if they missed it or were waiting to receive my defence etc), in that email I made it clear that for any mediation this would be a requirement along with other conditions (don't have email to hand).

Coupon-mad

Add to your reply to Excel that in the event that they now discontinue, they remain liable to refund the £255 at least and your other costs are reserved (and you will also seek all costs).  Add that the court is currently amending the Order to clarify that the £255 is payable in any event, and not reserved

State that you are disgusted that (am I remembering this right?) their rep drafted the Order to try to say otherwise than the Judge ordered and this is being put right. 

Add that you reserve the right to show these communications to the Judge when it comes to the matter of costs, either at the next hearing or if they now discontinue and try to walk away scot free, which is not an option after their unreasonable conduct and harassment that they have put you through.

milkybk

Coupon-mad said:

Add to your reply to Excel that in the event that they now discontinue, they remain liable to refund the £255 at least and your other costs are reserved (and you will also seek all costs).  Add that the court is currently amending the Order to clarify that the £255 is payable in any event, and not reserved

State that you are disgusted that (am I remembering this right?) their rep drafted the Order to try to say otherwise than the Judge ordered and this is being put right. 

Add that you reserve the right to show these communications to the Judge when it comes to the matter of costs, either at the next hearing or if they now discontinue and try to walk away scot free, which is not an option after their unreasonable conduct and harassment that they have put you through.

You are remembering right will do, thanks for the advice as always. 

milkybk

Email sent to Excel, will let you know how they respond. Received another letter from the court this afternoon confirming this is now a defended case etc and that all parties need to fill in a questionnaire etc by the 29th October. I imagine this is what has triggered Excel to finally reply to me!

I've also emailed the court chasing the amendment, I've resent it too (and included the original email). I will call tomorrow for clarification and escalate the matter if needed, as we did before when the original N244 letters were all wrong (although that was CCBC rather than the Court itself but same principal). 

From the wording of Excel's email, they seem very keen to not go to court, unsurprisingly.

For now I have kept my witness statement etc in my pocket. However if they argue some points could I send them it to show them just how little chance they have of winning? After we've vetted it here, obviously.  

The N180 form also refers to "Small Claims Mediation Service" - but I assume this is an alternative you would use if both parties agree to mediate but couldn't settle terms outside of court?

Jenni_D

Read the court guide linked from the NEWBIES ... IIRC it tells you what to fill (and not fill) on the DQ.

milkybk

Jenni_D said:

Read the court guide linked from the NEWBIES ... IIRC it tells you what to fill (and not fill) on the DQ.

Will do thank you

I'm continuing as if we're going to the hearing, unless I hear otherwise from Excel. So will complete form tonight.

milkybk

Haha well they replied today saying they won't be accepting my offer and will proceed to small claims, so we don't need to worry now

Doesn't bother me, as my witness statement etc will show, I have full confidence I will win the case. Although I suppose that doesn't stop them randomly dropping a discontinuance at some point but I can deal with that if and when it happens.

They simply said:

"Further to your email etc...

We are not willing to accept your settlement offer and shall be proceeding the matter to small claims court"

So game on

milkybk

Hi all - sorry didn't post WS this weekend, it is almost complete but some real life stuff came up. Will get it up ASAP.

Bit of a strange one today. Came home to a letter from Elms Legal (representative of Excel). Enclosed is a cheque reimbursing me my £255 for my N244 fee. The cheque is real etc, I was just surprised, as didn't expect them to pay anything until after the outcome of the next hearing. Before I cash it, could this be some sort of tactic before they consider a discontinuance? Or something they may bring up in court with costs having originally been reserved etc?

See image below:

Coupon-mad

Haha, cash it!

I suspect they are about to discontinue and sensed you going for the jugular on other costs if they carry on any further.