Maybe this would be of interest

 

https://www.fenwickelliott.com/research-insight/articles-papers/alternative-dispute-resolution/mediation-decline-request-mediate

 

It is a long read anyway

Do you agree with their conclusions (from Feb 2015), and how would you suggest the OP proceed?

Do you agree with their conclusions (from Feb 2015), and how would you suggest the OP proceed?

A quick update for every one

I made the application to transfer out of multi track and into the small claims. Still waiting for a hearing but it would appear the other party now consent BUT They are asking that they be able to recover their costs under the Civil Procedure Rule 45.3 to 45.32

In the multi track they were limited to my claim amount which was £3000 even though they have amassed well over £10k of costs

So if this does go to small claims and they are allowed to claim their costs under the Civil Procedure rule, are they likely to get £3k or £10k+ ?

" So if this does go to small claims and they are allowed to claim their costs under the Civil Procedure rule, are they likely to get £3k or £10k+ ?"

O'Beirne v Hudson [2010] EWCA Civ 52

Court of Appeal decision

The Court held that, to the extent that the appeal Judge could be understood to be saying that the Court would be entitled simply to assess costs by reference to the SCT regime, he was wrong. But a Costs Judge is entitled to take account of all circumstances (CPR 44.5(1)), including the fact that the case would almost certainly have been allocated to the SCT and what could or could not be recovered if the case had been so allocated. At that stage the Costs Judge must question whether, if it could have been fought in the SCT, it is reasonable that the paying party should pay the costs of a lawyer. The Costs Judge would not be bound only to allow the costs as per a case on the SCT but it would be a "highly material circumstance" in considering what by way of assessment should be payable.

The Court of Appeal said that the test was whether it is reasonable for the paying party to pay more than would have been recoverable in a case that should have been allocated to the SCT. Where a claim should have been allocated to the SCT but settles beforehand, a Costs Judge should consider whether it had been necessary to have had lawyers and, if so, if it is reasonable for the paying party to have to pay for lawyers.

This is an important decision for insurers and Defendants. It is often possible to settle a claim below £1,000 general damages but Claimants will insist on having costs paid as part of the agreement. An offer of, say, £500 plus fixed costs is unlikely to be accepted and the Defendant must then decide whether to press on and seek allocation to the SCT, which is often difficult because DJ’s are reluctant to assume on the papers alone that a claim could not exceed £1,000.

Acceptance of an offer of £500 when liability is not in issue is good evidence of the claim’s value. Defendants can now offer to pay standard costs knowing that they can ask the Court to assess costs by reference to the question whether it is reasonable to pay more than would have been recoverable in a case that should have been allocated to the SCT. Whilst it is perhaps unlikely that Courts will routinely allow fixed costs only, the test is a powerful negotiating tool and should enable substantial savings in recoverable costs in low value claims.

Arguably, the same test could extend to the situation where a claim is allocated to the fast track but, in retrospect, should have been allocated to the SCT.

" So if this does go to small claims and they are allowed to claim their costs under the Civil Procedure rule, are they likely to get £3k or £10k+ ?"

 

O'Beirne v Hudson [2010] EWCA Civ 52

 

Court of Appeal decision

 

The Court held that, to the extent that the appeal Judge could be understood to be saying that the Court would be entitled simply to assess costs by reference to the SCT regime, he was wrong. But a Costs Judge is entitled to take account of all circumstances (CPR 44.5(1)), including the fact that the case would almost certainly have been allocated to the SCT and what could or could not be recovered if the case had been so allocated. At that stage the Costs Judge must question whether, if it could have been fought in the SCT, it is reasonable that the paying party should pay the costs of a lawyer. The Costs Judge would not be bound only to allow the costs as per a case on the SCT but it would be a "highly material circumstance" in considering what by way of assessment should be payable.

 

The Court of Appeal said that the test was whether it is reasonable for the paying party to pay more than would have been recoverable in a case that should have been allocated to the SCT. Where a claim should have been allocated to the SCT but settles beforehand, a Costs Judge should consider whether it had been necessary to have had lawyers and, if so, if it is reasonable for the paying party to have to pay for lawyers.

 

This is an important decision for insurers and Defendants. It is often possible to settle a claim below £1,000 general damages but Claimants will insist on having costs paid as part of the agreement. An offer of, say, £500 plus fixed costs is unlikely to be accepted and the Defendant must then decide whether to press on and seek allocation to the SCT, which is often difficult because DJ’s are reluctant to assume on the papers alone that a claim could not exceed £1,000.

 

Acceptance of an offer of £500 when liability is not in issue is good evidence of the claim’s value. Defendants can now offer to pay standard costs knowing that they can ask the Court to assess costs by reference to the question whether it is reasonable to pay more than would have been recoverable in a case that should have been allocated to the SCT. Whilst it is perhaps unlikely that Courts will routinely allow fixed costs only, the test is a powerful negotiating tool and should enable substantial savings in recoverable costs in low value claims.

 

Arguably, the same test could extend to the situation where a claim is allocated to the fast track but, in retrospect, should have been allocated to the SCT.

thanks very much thats very helpful information !! Im sure that applies to my case also as my case should always have been allocated to small claims

thanks for everyones help so far.

The case has now be ordered on to the small claims track and is awaiting a hearing date.

The judge has ordered that the defendant be allowed to recover their costs so far incurred in the multi track (which was previously limited to £3000)

they are also claiming costs against me for acting unreasonably.

Could you please let me know at what point do I submit/bring up the case that was heard in the court of appeal

obviously by rejecting the small claims track previously, the other side incurred costs due to them being unreasonable. Which has been proven by them now accepting it.

I would like to argue that under that court of appeal ruling, this case should only ever have been heard on small claims and as such the losing party should only pay costs which are limited by the small claims court

Well..youll now need to follow the Small track process and file statement of case etc at correct time.

I would of thought any issues towards cost will be bought up at the end, you can point to case law, errors by the court, why you were not unreasonable, etc...check docs sent by the other are marked without prejudice or WJ save as to costs.

Thought I would give everybody an update

I had my day in court and won my copyright claim against some of Londons top lawyers

The Judge accepted the O'Beirne v Hudson [2010] EWCA Civ 52 case as evidence for costsand ruled it did apply is this copyright case, which I had to use given the huge amount being claimed against me. This did however limit the amount of money awarded to me!

By all accounts we made new case law so if nothing else I will be famous even if I dont make a penny from it. Hopefully this case can now be used by others in my position

Thanks for everybodys help on this matter it was a very stressful 2 years, I wasnt really expecting to win but my faith in the justice system has been fully restored. The little guy really can beat the big lawyers if you persist and stick to it

thanks to everyone who gave advice

That's excellent news, well done!

Are you able to tell us more about how the case went please? It will give us more knowledge and help other people.

HB

hi honeybee

Just waiting for the payout, they arent appealing it. I have the PDF of the Judges writeup and judgement, but not sure if this is something that can be released? I am sure its something that will be publicly accessible anyway after the appeal period has passed?

Hi.

I've flagged your good news for the team, I expect one of the team will be along with advice on this. In the meantime, you're right to be cautious.

HB

Well done Tim ...delighted that O'Beirne v Hudson [2010] EWCA Civ 52 came in useful.

Thread title amended to reflect the outcome.

Regards

Andy