legal advice needed

[benny1970]

Hello

 

Not sure if in right section. I am suing a company. They posted back the defence and a part 18 request. The defence makes my case very weak but the part 18 is really horrible.

 

As the claimant how can i end my claim causing min problems to me. Can I take out a court order to end the claim? If yes how do I word it etc? Will this end the part 18 on the defence part? It is a small claim.

 

thanks

[howardhewit]

Dear benny1970,

 

Thank you for your post.

 

Could you please provide more background information to your case.

 

I am sure that you know that CPR Part 18 is a request for further information, which means that the Defendant feels that you have provided insufficient information about the nature of the Claim.

 

The easiest way to end the Claim is write a letter to the Small Claims Court stating that you would like to withdraw your Claim. You will not be liable to pay costs to the other side, as this is a Small Claims Court Claim.

 

If you withdraw your Claim, you will not need comply with Part 18 request.

 

Finally, if you withdraw a Claim you will not be entitled to have Court fees refunded back to you.

[benny1970]

Thanks

 

So a letter is ok for this? I dont need to fill in a form or pay a fee?

 

thanks

[Gaston Grimsdyke]

Part 18 does not apply to small claims, so no need for you to respond to it.

[The Mould]

Hello

 

Not sure if in right section. I am suing a company. They posted back the defence and a part 18 request. The defence makes my case very weak but the part 18 is really horrible.

 

As the claimant how can i end my claim causing min problems to me. Can I take out a court order to end the claim? If yes how do I word it etc? Will this end the part 18 on the defence part? It is a small claim.

 

thanks

 

Good evening Benny

 

If you wish to discontinue the claim then you will need to file a notice of discontinuance (form N279) and serve a copy of the same upon the defendant.

 

Please be advised, you may be liable for the defendant's cost (you say he has filed and served a defence) - see CPR Part 38 and note that the defendant may apply to have your notice of discontinuance set aside. A court may set aside a notice of discontinuance as an abuse of the process of the court.

 

Kind regards

 

The Mould

[howardhewit]

It is not necessary to make an application for Notice of Discontinuance via Form N279, since a letter of withdrawing the Claim to Small Claims Court would suffice.

 

I can not remember for certain, however under CPR 38.6, liability for costs will not apply if its a Small Claims Court Claim.

 

Notice of discontinuance will mean that benny1970 will be liable for costs, which is something I presume benny1970 wants to avoid.

[AndyOrch]

It is not necessary to make an application for Notice of Discontinuance via Form N279, since a letter of withdrawing the Claim to Small Claims Court would suffice.

 

I can not remember for certain, however under CPR 38.6, liability for costs will not apply if its a Small Claims Court Claim.

 

Notice of discontinuance will mean that benny1970 will be liable for costs, which is something I presume benny1970 wants to avoid.

 

 

 

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)

 

Regards

 

Andy

[benny1970]

Hello

 

I am getting confused now.

 

AM I liablefor costs and do I have to answer part 18?

 

thanks

[AndyOrch]

A part 18 is not applicable once the claim is tracked IE SCT in your claim so you need not respond.

A simple letter to the court to advise no continuence without admittance of liability will suffice.

 

Regards

 

Andy

Edited November 18, 2011 by Andyorch

[MrHat]

Sorry for poking my nose in but I am reading a lot of threads as a personal learning process. - If the defence has only just been submitted, surely the claim will have not been allocated to any track yet....I tought that happened later (after allocation Q) and until then one can't assume it would be SCT, or can one?

[AndyOrch]

Sorry for poking my nose in but I am reading a lot of threads as a personal learning process. - If the defence has only just been submitted, surely the claim will have not been allocated to any track yet....I tought that happened later (after allocation Q) and until then one can't assume it would be SCT, or can one?

 

 

As the defendant as filed a defence we can only assume that AQs would be in process unless the Claimant as not responded to their defence which in that case yes Mr H it is technically trackless.Unless otherwise ordered by the Court it would be presumed to be a SCT claim and treated as such until allocated.

 

Andy

[benny1970]

Hello

 

It is still trackless. Does that make it more or less complicated? The defence said should be small claim

[TweedleDee]

You are liable for costs now if you discontinue as it has not been allocated to a track:

 

http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/civil/contents/practice_directions/pd_parts43-48.htm#IDAWGB2

 

The best time to discontinue would be after you file the AQ and it has been allocated to the small claims but that incurs a charge (to file the AQ) and does not stop the other side from seeking their costs under CPR 27.14(2)(g):

 

http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/civil/contents/parts/part27.htm#IDAOBHCC

 

So you have to check whether you complied with pre-action protocols and whether you have acted unreasonably in litigating without following process:

 

http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/civil/contents/practice_directions/pd_pre-action_conduct.htm

 

If you need legal advice, may I suggest you seek professional legal advice as to the cost implications of discontinuing the claim and whether a consent order might be useful here to mitigate that.

[benny1970]

Hello all,

 

Just had advice from a solicitor saying that because it has not been allocated a track and the value i am claiming is less than £5000 it will be considered as small claim until I complete and send AQ to the court. I was told I can withdraw my case at this stage by writing a letter to the court. The otherside will not be able to claim costs as still considered small claim.

[TweedleDee]

I don't necessarily agree with your solicitor as the white book and CPR on costs state otherwise but if the other side try anything as regards costs, you can blame the solicitor for negligence so they should cover your costs.

 

Wish you well.