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crickey surfaceagentx20 were have you been hiding we really like that.

unfortunately we will require a bit of help on the dealing with this procedure.

sorry but whilst this is important we have other thoughts waying us down at present.

really gratefull for your posting

 

 

 

we will contact the court office on monday and explain that it may not be in our immediate interests to reschedule this court hearing date.and negotiate

a best deal.

regards

 

djc

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telephoned the court office today and asked if they received our letter to reschedule the court date of 8th sept due to funeral arrangements on that day.

court advised that they had not rec'd the letter. when we explained the nature of case ie discontinuance by plaintif they whent and looked at the case file with the district judge. the comments by the judge indicated that because there are costs etc the case needed to be heard to enable defendant (me) to file for costs presumably.

 

therefore when the letter surfaces it will be taken directly to the judges chambers. and hopefully rescheduled.

 

isn't life exciting.

 

djc

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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.

 

x20

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telephoned the court office today and asked if they received our letter to reschedule the court date of 8th sept due to funeral arrangements on that day.

court advised that they had not rec'd the letter. when we explained the nature of case ie discontinuance by plaintif they whent and looked at the case file with the district judge. the comments by the judge indicated that because there are costs etc the case needed to be heard to enable defendant (me) to file for costs presumably.

 

therefore when the letter surfaces it will be taken directly to the judges chambers. and hopefully rescheduled.

 

isn't life exciting.

 

djc

 

I guess it can be :grin: At least you now know what is what. Hopefully your letter will arrive today.

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hi surfaceagentx20

thanks for getting back on this.

 

during my conversation with court official i quoted verbatim. cpr 38.6(1) as you outlined in your previous posting.this fell on deaf ears. and were obviously unwilling to discuss this aspect of law or procedurewith the judge.

i therefore backed of.

 

ref; the discontinuance

cope's ticked the box adjacent to. discontinues all of this (claim)(counterclaim).

 

we assume that we are only entitled to claim the £75.00 cost of the application.plus any legal/ professional expenses incurred prior to there discontinuance.

hope this clarifies situation

 

djc

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X20 is correct. You have an automatic right to costs upon the filing of notice of discon, but you really do not want to go down the route of filing an inter parties bill for detailed assessment for an amount of £75. The fee for filing (if the claimant does not pay after being served with the bill) is more than £75 and you would have to attend an assessment hearing. Better to just attend the hearing listed and the judge will make an order for your costs and attendance expenses. The order will be a summary assessment of your costs and payable in 14 days from the making of the order. If they do not pay - send in the bailiffs!!

 

The above is far more expedient than going down the detailedassessment route and a lot less work.

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thanks for your confirmation and advice we will follow.

 

we have written to court and phoned them because we have a death of my mother and the funeral is scheduled for same date as hearing and is 60 miles away therefore unable to attend hearing therefore trying to reschedule. the hearing.

 

regards

 

djc

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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.

 

x20

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great responses aloysiush and surfaceagentx20.

 

i will take your advice on this and pursue the detailed assessment route.

will this mean we can ssend in the bailiff's first if they fail to comply before they send them to me.

 

i am going to need some help on this one..well thats different we hear you say.

 

i'm feeling very lucky.

 

djc

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well well just received phone call from cope's solicitors. the other side.

 

they say that they are writing to the court and are going to pay our courtfees and expenses.( not sure about expenses bit as of yet not filed for any)and are notifying the court of there intentions.

 

does this mean we have succeeded on this occasion.are we able to crack open the fosters. it's a class thing don't you no.

 

djc

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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.

 

x20

Draft LiP bill of costs for detailed assessment.pdf

Draft Notice of Commencement.pdf

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surfaceagentx20 your a star.

we have now tel court and they have confirmed that the hearing has taken place and cope's discontinuance has been accepted and that we have been awarded costs etc.. to be paid in......... Forgotten wheth'er its 7 or 14 days.

 

 

upon receipt of written judgement order over the next few days we will start preparing the Defendants Bills of costs and n252 as so clearly indicated in your excellent post.

many thanks

 

djc

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aloysiush

thanks for response i was unable to attend due to funeral, same day as the hearing. we did request of the court to reschedule but appears as judge had other ideas.

we are now awaiting the post to see what has transpired, if only £75 paid then i will go down the road of detailed bill and if necessary sit through an assessment hearing. we are totally piiiid off with this shower and if we lose out on unenforceable credit agreement, that is going on in the back ground to this particular little spat, it may help in reducing the eventual debt.

 

after all i am retired and in need of some therapy don't you think.

 

djc

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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.

 

x20

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hiya surfaceagentx20.

 

i understand your views but unless i misunderstood, during our telephone conversation with the court official, and completley screwed it up,i am unable to bring any other information to bare that may clarify.

 

as of today nothing has arrived in the todays post reference judgement.

 

will post details on thread on arrival.

 

regards

 

djc

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I suspect, at the hearing of your application (at which no attendance by the parties), the DJ has merely ordered the payment of the application fee.

 

X20, the hearing of DJC's application will have taken place regardless of the discontinuance. That only discontinued the claimants action and not the application. Order not yet arrived, let's see what it contains.

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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.

 

x20

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Finally received in this mornings post

General form of Judgment or Order

 

IT reads as follows

 

Upon claimant having discontinued the claim and in undertaking to pay the defendants costs of £75-00 in respect of the application dated 18th july 2008

it is ordered that claimant shall pay defendants costs of £75-00 by 4pm on 30 september 2008.

 

if my two gardian angels are still out there is it plan aloysiush

or

plan surfaceagentx20

 

i assume that the content of this judgment is as predicted?

 

djc

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certainly not my powers of writing are limited and creative accounting is not one of my virtues either, but i do spot a good opportunity as you have kindly provided. i will knock this out and despatch asap.

 

regards

 

djc

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surfaceagentx20

 

just to confirm we dispatched recorded delivery to cope's solicitors N252

' Notice of commencement of assessment of bill of costs' with copy of judgement that discontinued thier claim and awarded us costs. plus Defendents Bill of costs.

 

the date given for/ by that they must serve thier points of dispute as 13th Oct, 2008.

 

djc

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