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maddog2008

Court will not seal consent order

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Hi,

 

I'm a Defendant in a case and have agreed a consent order with the Claimants solicitors to have the case discontinued and for neither party to pay costs.

 

If it had gone to court I would have won but didn't want the stress of going to court.

 

The Claimants solictor has discountinued the case.

 

I've received a letter today from the Claimants solictor asking me to sign a different consent order with an attached letter from the court. The judge is refusing to seal the consent order. I've phoned the court and thy've told me that the Claimant's solicitors have made error in drafting the order and the wording is not acceptable to the Judge.

 

I'm refusing to sign the new consent order, due to the case already being discontinued.

 

Can anyone advise what the likely outcome would be if I now apply to the court for costs? I'm thinking that the court will say that it was never my intention to recover costs so they will not award them, or there may be a slim chance that the Judge will completly disregard the consent order due to the fact that it has not been sealed becuase he finds the wording unsatisfactory and therefore award my costs.

 

If I've lost my cost entitlement can I apply for my costs incurred after the consent order signing date as these have been incurred due to the solictors mistake/ negligence?

 

Any thoughts are more than welcome.

 

Thanks in advance.

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Hi Maddog

 

Firstly which track was the case allocated to?

Is there such a great difference in the Consent Order from the original and why are you reluctant to sign?

Why has costs become a major factor all of a sudden? because the Claimant discontinued?

 

Regards

 

Andy


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Andy,

It's was allocated to the small claims court for £4,999. The Claimants solicitors were looking to recover their costs so they convinced the judge that the legal issues were fairly complex and had it changed to the fast track with the anticipation of winning and recovering costs.

I agreed to settle at no cost or damages due to the time it was taking me to defend this, to date over 400 hours. I've had to delay my professional exams as a surveyor for 6 months as well which will cause me loss of earnings circa £20,000 for the 6 months. If I'd continued with the case this may have been delayed a year doubling the loss of earnings. If a solicitor has actually done the amount of work I'd done the costs would have been circa £50k, obviously I can't afford that much which is why I did it myself.

400 hours may seem excessive but the case was complex and it has several defences plus the defence set out to prove perjury on the Claimants behalf. This is why I think they were so keen to settle.

The differences in the consent order are minor, but I have no need to sign it since the case has been discontinued. By signing it, it only provides the Claimant further protection.

The costs are not an issue but if awarded will be substantial, at least £10k. For the sake of a letter to the court is it worth a try?

Thanks

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Absolutely go for it


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Liability for costs

 

38.6

 

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

 

(2) If proceedings are only partly discontinued –

(a) the claimant is liable under paragraph (1) for costs relating only to the part of the proceedings which he is discontinuing; and

 

(b) unless the court orders otherwise, the costs which the claimant is liable to pay must not be assessed until the conclusion of the rest of the proceedings.

 

 

(3) This rule does not apply to claims allocated to the small claims track.

 

(Rule 44.12 provides for the basis of assessment where the right to costs arises on discontinuance and contains provisions about when a costs order is deemed to have been made and applying for an order under section 194(3) of the Legal Services Act 2007)


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Liability for costs

 

38.6

 

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

 

(2) If proceedings are only partly discontinued –

(a) the claimant is liable under paragraph (1) for costs relating only to the part of the proceedings which he is discontinuing; and

 

(b) unless the court orders otherwise, the costs which the claimant is liable to pay must not be assessed until the conclusion of the rest of the proceedings.

 

 

(3) This rule does not apply to claims allocated to the small claims track.

 

(Rule 44.12 provides for the basis of assessment where the right to costs arises on discontinuance and contains provisions about when a costs order is deemed to have been made and applying for an order under section 194(3) of the Legal Services Act 2007)


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Thanks Andy, Do you think a simple letter to the court mentioning 38.6 will do the job or is there a form that I would have to fill in?

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You will have to submit a Summary of costs and then make application using the N244 (Application Notice)

LiP can claim upto £9.25 ph

 

I would advocate reading this also Part 46 - Fast Track Trial Costs

 

Regards

 

Andy


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Hi,

 

I'm a Defendant in a case and have agreed a consent order with the Claimants solicitors to have the case discontinued and for neither party to pay costs.

 

If it had gone to court I would have won but didn't want the stress of going to court.

 

The Claimants solictor has discountinued the case.

 

I've received a letter today from the Claimants solictor asking me to sign a different consent order with an attached letter from the court. The judge is refusing to seal the consent order. I've phoned the court and thy've told me that the Claimant's solicitors have made error in drafting the order and the wording is not acceptable to the Judge.

 

I'm refusing to sign the new consent order, due to the case already being discontinued.

 

Can anyone advise what the likely outcome would be if I now apply to the court for costs? I'm thinking that the court will say that it was never my intention to recover costs so they will not award them, or there may be a slim chance that the Judge will completly disregard the consent order due to the fact that it has not been sealed becuase he finds the wording unsatisfactory and therefore award my costs.

 

If I've lost my cost entitlement can I apply for my costs incurred after the consent order signing date as these have been incurred due to the solictors mistake/ negligence?

 

Any thoughts are more than welcome.

 

Thanks in advance.

 

 

 

Did you sign the original consent order that the court refused to seal?

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Yes the consent order which the court will not seal has been signed by both parties.

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