Civil Action - paying defenders fees

[hurtandconfused]

Hi,

 

To cut a very long story as short as possible. I took advise from a solicitor who advised that I had a case for breach of contract.

started proceedings and won the case..... but "and here a big" BUT the defenders lodged a tender and the award - although I won the case is less than the tendor so looks like although i won my case im left with both my legal fees and theirs? is this correct?

 

I have mounting debts now due to a change in circumstances and im worried that I will have to sell my home to pay their court fees. (ive been paying mine in stages) seams really unfair I suffered a loss and won the case yet because less than tender i actually loose more money.

 

Im both physically and emotionally drained feel like giving up will i really have to sell my house to pay their legal costs?

 

i appreciate any help or advice... feel sick

[citizenB]

Is this in a Scottish Court ?

[honeybee13]

Hello there.

 

I've had this advice from another member of the team and hope it helps you.

 

http://www.justice.gov.uk/courts/pro...art36#IDAEN2HC

 

Follows when a part 36 offer is made and refused ....Other circumstances in which an order for costs would not be made on the standard basis is where a party makes an offer to settle a case and beats that offer at a subsequent trial or assessment. Most Solicitors will be familiar with this scenario but perhaps not completely au fait with the specifics.

 

Prior to the introduction of the Civil Procedure Rules in 1999 costs consequences where offers to settle were made were illustrated by the case of Calderbank -v- Calderbank [1975] 3 WLR 586 and subsequently by CPR Part 36. Where a Claimant does better at trial than the offer he has already put forward costs will usually be awarded on the indemnity basis. CPR Part 36.21 (3) (a) stated that "The court may also order that the claimant is entitled to - his costs on the indemnity basis from the latest date when the defendant could have accepted the offer without needing the permission of the court;". In costs proceedings the court may be reluctant to make orders on the indemnity basis where the claiming party simply recovers more than the paying party had offered prior to the assessment without circumstances involving conduct issues, highlighted above, being a significant factor.

 

You would have to expand a great deal further as to why this came about in order for the guys to advise you.

 

My best, HB

[steampowered]

Why were you ordered to pay costs if you won the case? You will need to provide a lot more details.

 

If this is in the Scottish courts, my understanding is that the English Civil Procedure Rules including Part 36 are not relevant.

[hurtandconfused]

Hi

 

Thankyou so much for your replies very much appreciated! Im overloaded with stress and worry

 

Its Scottish court - I won the case - but as the award payable was less than their tender that they offered to settle on... Im facing their legal fees - having to go back to court to see what judge says on the matter but everything I found appears to say Im liable to pay. seams a really unfair justice system and I have no funds to appeal it Im on the verdge of giving up now with everything have mounting debts already and have no way of funding their fees - it was bad enough trying to scrape together my own which thankfully i did on pay as you go basis

 

I read that in Scotland:- Where a Tender is rejected the action will proceed normally. If the pursuer is awarded a principal sum lower than that offered in the Tender then again as a general rule the defender will be entitled to expenses from the date of the Tender.

 

does anyone know of anything I can do? will I be foursed to sell my house to pay?

[citizenB]

I think you will need to see what the Judge has to say - I agree, it does seem to be a very unfair situation.

[steampowered]

You haven't provided much information about your case. There are lots of factors at play here and you are jumping ahead of yourself a little. You will need to consider things like (1) was this actually a formal tender offer within the rules of Scottish procedure, or merely an offer; (2) when was the offer made (as costs consequences only flow from the date of the offer; (3) how much the offer was higher than what you are awarded. I am not a Scottish lawyer but my understanding, and I am happy to be corrected, is that failing to beat a tender offer usually results in being ordered to pay the other side's costs but this is not as strong or as automatic as English Part 36 offers are.

 

You say you have a solicitor? What does he say?

 

Otherwise best to wait and see what the judge actually awards.

[hurtandconfused]

Thanks so so much for the help

 

(1) It was a formal tender submitted to court from my understanding the judge did not know its content until her decission

(2) Tender was made upon them receiving the court documents

(3) Tender was 50% higher than what was awarded

 

solicitor says i will be liable for their costs, im terrified to see what they are... do you think i will be allowed to pay it up? Im trying to get back on track with my own finances and this is the last thing I needed. I feel a bit cheated

 

thanks ever so much for your kind help

[steampowered]

Hi,

 

Its very difficult to say to be honest. If the advice you are getting about tender offers is correct, it sounds like you will be liable for costs due to the other side making a high tender offer. Your solicitor should have warned you about this. I imagine there will be some sort of process the other side have to go through in order to justify the amount they are claiming and the key will be to negotiate the lowest amount possible. Your solicitor should be able to help with this.

 

Since you won the case I imagine you were awarded damages which would be offset against any legal costs?

 

If you do end up with a debt to pay there are a number of options which do not involve selling the house ... try giving these guys a call: www.nationaldebtline.co.uk/scotland