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[surfaceagentx20]

On the Claimant discontinuing there should be no need to attend a court hearing and I would expect the court to vacate it.

 

It seems you were advised to attend the hearing for the sole purpose of securing your costs. Your costs are secure without having to go to court. Here's why:

 

CPR 38.6(1) says:

Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom he discontinues incurred on or before the date on which notice of discontinuance was served on him.

 

and CPR 44.12(1)(d) says:

 

Where a right to costs arises under –

(d) rule 38.6 (defendant’s right to costs where claimant discontinues),

 

a costs order will be deemed to have been made on the standard basis.

 

In other words a costs order is deemed. The rules import the existence of a costs order against the opponent right now so a costs order does not need to be sought at a hearing.

 

You may thus proceed to draw up a bill of costs and begin detailed assessment proceedings. I can assist with dealing with the procedure if required. You have 3 months from the date of service of the notice of discontinuance to begin the detailed proceedings.

 

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[surfaceagentx20]

I am afraid the notion that there should still be a hearing is bad in my view. Having discontinued the case there is nothing about the case which needs determining apart from costs. That view would alter if the opposition had only partly discontinued, but as I understand things, they have discontinued the entire case. Correct? You might want to check the Notice of Discontinuance.

 

Further, the costs of the case will not come up for consideration until you begin detailed assessment proceedings. Only if your opponent issues and succeeds upon an application for an order reversing the general rule, will the court depart from the general rule. The onus is upon the opposition to make such an application and I doubt they will go to the trouble of presenting one.

 

Further still, your opponent will not be liable to you for any of the costs of the issue it has discontinued after it delivered the Notice of Discontinuance [see CPR 38.6(1)], so if there is a hearing (regarding what, heaven knows) the costs of that hearing will not fall on the opponent to pay, or at the very least, they will have a good argument to say that since they discontinued the entire case there was no need for a hearing and thus no responsibility for any costs post-dating the day they discontinued.

 

I'd call the court again, tell them you misunderstood and that rather than re-scheduling yuou simply want the hearing vacated. Refer them to CPR 38.6 and endeavour to persuade them the hearing should be vacated as you require, alternatively get them to explain to you quite what remains to be decided at a hearing if it went ahead which could not be decided by you beginning detailed assessment proceedings.

 

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[surfaceagentx20]

I can see where aloysiush is coming from. It's all about expediency and the court will ordinarily buy into that. However and having said that, I do not agree that the proper course and the desired outcome will be achieved as things stand right now or by simply waltzing along to an adjourned hearing of your application to strike out.

 

Here's my two cents as to why:

 

[1] There is the fact the case is dead by reason of the entire claim being discontinued and properly therefore there is no purpose in the court determining whether the case should be struck out. In effect the opposition have already struck themselves out.

 

[2] Further costs after notice of discontinuance was served will not be recoverable unless they are costs associated with detailed assessment proceedings.

 

[3] The costs proceedings must be in accordance with the costs order. In this case, a costs order which is deemed by CPR 44.12. CPR PD 44 12.2 says an order for costs will be treated as an order for the amount of costs to be decided by a detailed assessment unless the order otherwise provides.

 

[4] Whether the summary assessment or the detailed assessment route is adopted, a litigant in person's bill will still have to be drawn up.

 

[5] If the summary assessment route is adopted, there will necessarily have to be at the very least [a] an amendment to the current application by which the OP will seek an order that there be summary assessment rather than detailed assessment (so as to achieve an 'otherwise provides' situation under CPR PD 44.12.2) and a hearing of that application (after which summary assessment can follow if the application is allowed).

 

[6] The opponent may resist the application to substitute summary for detailed assessment, maintain the application is superfluous and argue that on the basis that detailed assessment is the procedure provided for under the rule, there is no good reason why there should be a departure from the rule.

 

[7] If the application was lost, an adverse costs order at solicitor rates might follow which would wipe out the benefits now available under the automatic right to proceed to detailed assessment.

 

[8] By adopting the detailed assessment route (which I regard as the correct route) a hearing will be avoided if the bill is paid or the OP has the opportunity to file a default costs certificate. There are good grounds to suppose payment will be made or a default costs certificate will be obtained on the basis that to contest a litigant in person's bill which might amount to a couple hundred quid or so would be uncommercial.

 

[9] CAG peeps are capable of assisting the OP in drawing up a bill for detailed assessment and maximising what might be claimed in it.

 

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[surfaceagentx20]

You'd succeeded any way. They caved! This last bit is just about revenge and giving them a proper whack.

 

So time to max out the costs. I'll start putting something together.

 

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[surfaceagentx20]

I have prepared a draft bill of costs for detailed assessment and draft notice of commencement. Both are attached in pdf format.

In drawing the bill I have tried to keep it as uncomplicated as possible whilst seeking to demonstrate how to maximise the amount which might be allowed. The documents may be of general application in litigation to include for example, dealing with a costs claim after successfully obtaining an order setting aside a Statutory Demand, after making all such necessary modifications to suit.

The bill begins with a narrative dealing with the nature of the case and the complexity of it as I imagined it may have appeared to the LiP. My imagination should not be treated as a statement of how the complexity in truth appeared to the LiP.

Next is a chronological statement of the steps taken in the case as they will appear on the court file. I have not bothered to go through the entire thread to establish what occurred on what day. The LiP will have to do that.

I have included provision for time spent which has been charged at an hourly rate of £9.25 in accordance with The Litigants in Person (Costs and Expenses) Act 1975. I can not stress enough that where time is included this is only a statement of time for the purpose of demonstrating how the figures would appear in the bill. My statement of time is not an estimate of time. Only the LiP can say how much time was spent and my statement of time may be an under- statement or an over-statement, I would not know.

It is worth pointing out however that the court will recognise that a LiP will most likely spend more time in a case than a solicitor. The relevant Rule is CPR 48.6 with guidance appearing in The Supreme Court Costs Office Guide (COG) Practice Direction at CPR PD 48 COG 22.4 and .5.

The question for the Judge considering the bill is if this case had been conducted by a solicitor, what would that solicitor’s reasonable total charge have been for doing that work? Having arrived at that hypothetical figure, the costs judge will assess the bill but disallow whatever the total bill comes to from exceeding two-thirds of the hypothetical figure.

It seems to me the hypothetical solicitor may have spent say 6 hours dealing with all the work set out in the bill from beginning to end. At an average charge of £150.00 per hour, that produces a hypothetical figure of £900.00. In other words therefore, if the Judge held my view about what the hypothetical solicitor may have charged, the amount to be allowed to the LiP ought not to exceed £600.00. As you will see, my draft works out at £573.50.

What to do Next

Complete the bill adapting the narrative to your personal experience in terms of actual work done and actual time spent. Feel free to add to it where I have not imagined work which you actually did. Insert the dates and sign and date the bill.

Next complete Form N252 available from the HMCS website here.

You will ned to complete the court and party details in the box on the RHS.

The draft N242 I have completed gives the position as if my figures were used. Where the total used in the bill is to be different, put that figure in the first figure box where N252 says: ‘The bill totals £xxx.xx’. (figure [1])

Next, add £300.00 to figure [1] and put whatever this figure in the next box where N252 says:

the full amount payable (including the assessment fee) will be £xxx.xx). (figure [2]).

Next insert a date in the box before which is written: ‘You must serve your points of dispute by’. This date will be a date being not less than 21 days after the date on which your opponent receives the bill and the N252. In practice, add 25 days to the date on which you post the bill out to your opponent. If that date should fall on a Saturday or Sunday, insert the date for the following Monday.

Next fill out the box which provides a name and address at which the opposition may deliver any response to the bill of costs. The response will be entitled ‘Points of Dispute’. I don’t imagine one will arrive and if one does, how to deal with it will be dealt with in a later advice.

Next, leave the box beginning: ‘I certify that I have also served’ blank

Next, at the very end of the bill is a third figure box before which is written ‘If I have not received your points of dispute by the above date, I will ask the court to issue a default costs certificate

for the full amount of my bill (see above*) plus fixed costs and court fee in the total amount of £’ . In this box take the figure [1] and add £45.00 to it. This is the figure which goes in this box (figure [3]).

Print the N252 off, sign and date it.

Next, send the bill and the N252 off to the opposition’s solicitor.

After Having Sent the Bill and N252.

Make a note when the 25 days will be up.

I would expect the opposition to make contact with you in an attempt to settle the question of your costs. So as to avoid hassle and heartache, I would be prepared to settle at anything which came to about one third rather than two thirds of the hypothetical solicitor’s bill. On my example, that would be around £300.00 plus the court fee. You may want to settle at something less just to be shot of it.

If any offer comes in which is wildly below £300.00 post to this site for advice. I would imagine the opposition will be very keen to settle since objecting will tie them into expense they will wish to avoid and any savings will soon be wiped out by employing a solicitor to deal with the objections.

When the cheque comes in, make a donation to CAG.

If you have not heard from the opposition by when the 25 days are up you will be entitled to apply to the court for a default costs certificate. When that moment arrives, post here.

Any queries, just ask.

 

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Draft LiP bill of costs for detailed assessment.pdf

Draft Notice of Commencement.pdf

[surfaceagentx20]

I can't see how the court could have made a summary assessent in your favour. An assessment made at what hearing? Any hearing was a hearing at which you were absent. Further, without costs information from you, what could the court have based the assessment on?

 

Besides, and as if to reaffirm this, as I mentioned previously, the rule provides for detailed assessment only.

 

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[surfaceagentx20]

Yes, I do appreciate that. And for the same reason any order made will be an order made upon the application not the action.

 

My points are:

 

1 The hearing of the application took place after Notice of Discontinuance was served.

 

2 The Claimant's liability for costs is limited to the costs of the case up to when this Notice was served. Those costs must be determined by detailed assessment proceedings.

 

3 There was no need for the hearing and no one attended it. The application was to strike out which was effectively secured by the Claimant serving Notice of Discontinuance of the entire claim. At that moment the application became ineffective and nugatory.

 

4 Any summary costs order made at a hearing of an application taking place after service of Notice of Discontinuance will at best be limited to the costs of that aplication and not to the case at large.

 

5 The costs of the case up to service of Notice of Discontinuance will not have been dealt with therefore.

 

6 djc is at liberty to proceed with detailed assessment regardless of the doubtful proposition that a summary costs order was made at a 'hearing' at which neither party attended.

 

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[surfaceagentx20]

Have you ever asserted in writing that your costs of this case are limited to £75.00?

 

If not, Plan x20

 

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[surfaceagentx20]

FF,

Dead right.

 

Detailed Assessment Proceedings are commened by the delivery of the bill and so forth to the paying party. See CPR 47.6. There is no requirement to lodge those papers at court at the same time. Neither is there a requirement for the delivery of evidence in support save to the extent of evidence in support as required by CPR 47 para 32 of any disbursement claimed and which exceeds £250.00. Court fees do not count as disbursements. I doubt you incurred a disbursement of such magnitude and therefore there is no requirement for the delivery of any other kind of evidence to include evidence about time spent.

 

If you have done [1] to [4] and 25 days have elapsed since the documents were served without receiving Points of Dispute in answer, you may apply to the court for a default costs certificate under CPR 47.9(4). The form of request is as you say by Form N254 accompanied with a payment of the court fee of £45.00.

 

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