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my draft defence Gladstones - PCM Court action

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  • I'd make the point that if their solicitors made an administrative error then the correct course of action is for them to sue their solicitors in negligence, it's not a valid reason for a set aside of either the dismissal of their claim, or the costs order.


    They had several chances, so this is one hell of an "administrative error", it is clearly negligence
    1. they missed paying the hearing fee
    2. they didn't file a WS (you'll have to show on balance that the email to you is fake, and in any event you hadn't agreed to service by email and you never received it)
    3. they missed the order for the costs hearing


    Did you serve your costs schedule on them 24 hours prior to the costs hearing, as I advised you? If yes, then that's number 4 that they missed.
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
  • Johnersh - to add to the point on the not senidng in WS from D to C, the strike out was apparently made 2 days BEFORE the deadline to send in documetns - ot my untrained eye, surely once the case is struck out, there is no longer a deadline for the D to adhere to in regards sending in WS?
  • I'd not checked the dates - as I made clear. I agree that if the strike out was before the deadline that is a non-point. Indeed the statement is, in my view, intentional obfuscation precisely because they know they should have applied to set aside the strike out and they are attempting to piggyback that on their marginally better arguments relating to the costs hearing.

    +1 LoadsofChildren123 to the extent that there is prejudice to the defendant, this is a solicitor error and they carry indemnity insurance for that.

    As all have pointed out. There are multiple failures here.
  • Sassii
    Sassii Posts: 251
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    Johnersh wrote: »
    Questions for Gladstones

    1. Does the email set out the Fee Account number from which the

    I didn't get that email yet I'm going to write to court tomorrow asking to send all the documents supplied by them
    Gladstones payment should be taken?
    Johnersh wrote: »
    The claimant seeks to blame you for failing to send in your statement in relation to the main claim (is this correct?).
    as the case strick out 2 days before the deadline I didn't send the WS to them
    Johnersh wrote: »
    Whilst you may not have sent a costs schedule to the Claimant prior to the costs hearing (is this correct?).

    I sent The costs application with the struck out application and it takes 10 days to get the court decision, so when I received a court letter for hearing allocation day I assumed the court sent those application to the claimant with the court letter.
    Also The court letter for costs hearing didn't require from me to send that application or any documents to Claimant before the hearing.
  • Sassii
    Sassii Posts: 251
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    Did you serve your costs schedule on them 24 hours prior to the costs hearing, as I advised you? If yes, then that's number 4 that they missed.

    There were no time and also The court letter for costs hearing didn't require from me to send that application or any documents to Claimant before the hearing.
  • Loadsofchildren123
    Loadsofchildren123 Posts: 2,504
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    edited 23 November 2017 at 11:37AM
    Yes but the court rules say that where you ask the court to make a "summary costs order", which is an order to pay you a specific sum, then you have to file and serve a costs schedule 24 hours in advance of the hearing. this is why I told you that you must serve it on them. The court wouldn't have ordered you to do this - it's not something you're obliged to do, it's a voluntary step you can take in order to get the issue of costs sorted in one step by getting an order that a specific sum be paid.


    This is the way costs work:
    1. The court has a power to award costs.
    2. A "normal" costs order would be "Claimant to pay the Defendant's costs of the claim". ie with no specific figure. The specific figure then has to be agreed or assessed at a later hearing, by a specialist costs judge.
    3. However, instead of a normal costs order (with no specific sum ordered), you can ask the court to make a "summary" costs order. This means the judge decides then and there on a specific figure.
    4. To give the court the power to make a summary order under the rules, you have to serve a costs schedule 24 hours in advance of the hearing. The act of doing that is what gives the court the power to make a specific order that a party pays a set sum.


    The serving of a costs schedule and seeking summary costs is a voluntary procedure. So the court will never order you to file a costs schedule.


    This is why I told you to file and serve the costs schedule 24 hours in advance.


    It's disappointing that you didn't follow this advice because it means that the court may therefore not have had the power to make the summary order it did - it would only have had the power to make a general costs order, with the figure to be later agreed or assessed. I say "may" because I haven't looked into its various powers, I'm speaking from what's in my head about summary costs orders and costs schedules. It may be that where you are talking about small amounts the court does have an inherent power to make a summary order. But I don't think it does. *I've now looked into this and think the court does have an inherent power to make a summary costs award in a small claim - see post #101


    What this means is that the summary award of costs may well be set aside and replaced with a general costs order (ie you then have to agree the costs or have them assessed by the court, which is not an easy procedure for you to go through and costs you yet more in court fees). *There's a clear argument against this - see post #101 - I think the court has the power to make a summary award whether or not a costs schedule has been served.
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
  • Johnersh in post #94 means Claimant not Defendant I think - if this all results from a balls up by Gladstones, which they are admitting, and if their client (Claimant) suffers loss/prejudice as a result (which they did in the form of their claim being struck out and a costs order being made) then they should be making a negligence claim and reporting it to their insurers, not trying to get the orders set aside.
    Why should an innocent Defendant be prejudiced by their negligent actions?


    Sassii, you weren't obliged to send the order setting a date for the costs hearing, the court would have sent that to Gladstones at the same time as sending it out to you. But you were obliged to serve the costs schedule, if you were asking for a summary costs order, which I've explained above.
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
  • Sassii
    Sassii Posts: 251
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    edited 22 November 2017 at 4:30PM
    Yes but the court rules say that where you ask the court to make a "summary costs order", which is an order to pay you a specific sum, then you have to file and serve a costs schedule 24 hours in advance of the hearing. .

    Summary of the costs was served to court 3 days before the hearing but not to Gladstones.
  • Coupon-mad
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    Sassi can you show us what you are sending now? Base it on what Johnersh & LOC123 said.
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  • Normal costs provisions are set out in Rule 44 - PD 44 para 9.5(4) is where it says you must serve the costs schedule and file it at court, at least 24 hours in advance.


    However, this is a small claims track case, to which special rules apply. Rule 46.11 specifically says that Rule 27 contains special rules about, inter alia, the procedure for assessing costs in small track claims (and as I've already explained, the two different ways of assessing are "summary" assessment, ie a fixed sum, or "detailed" assessment, which I call "normal" in a previous post, ie an order that your costs are to be paid in an unspecified amount, which leaves the figure to be later decided upon by the court or agreed between the parties).


    If you then go to rule 27, 27.14(2)(g) says that unreasonable costs will be summarily assessed - but nowhere in R 27 or PD 27 does it say that a costs schedule has to be filed as per R 44, in order for the court to have the power to make a summary assessment.


    So if the C argues that you failed to serve the costs schedule, argue that under Rule 27.14(2)(g) the court has an inherent power to order a summary assessment and the requirement to file/serve a schedule set out in PD 44 does not apply in small claims.


    Having said that, it's a bit unclear and so that is why we always advise to comply with Rule/PD 44 by filing and serving the schedule at least 24 hours in advance of the hearing.
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
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