Hoist/Cohen - Claimform old Cahoot flexi loan from 2001***Claim Discontinued***

[billyrayvalentine]

I have already advised the course of action in post #142 above...if they are not in agreement to your wasted costs then you apply for a wasted costs order...it should not require a hearing.

 

Thanks Andy.

 

What I plan to do is write to the claimants solicitor, quoting the relevant CPR rules, and include a spreadsheet of the wasted costs. I'll give them 14 days to act too.

If not, apply to the court via an application for wasted costs.

 

Is this the correct procedure?

 

Thanks,

 

Billy

[AndyOrch]

Correct Billy.

[billyrayvalentine]

No response whatsoever from claimants solicitor about wasted costs.

 

I will give them another week, if not i will have to apply for wasted costs via the court.

 

I have looked at the form, would this need a hearing or not?

[AndyOrch]

Application for WCO does not usually require an hearing.

[AndyOrch]

Here is the relevant CPR....

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part-46-costs-special-cases/practice-direction-46-costs-special-cases

 

In particular 5.1 to 5.9

[billyrayvalentine]

***Update***

 

Client offered me £80, about 15% of itemized costs.

 

Think i will chance it with the court.

[AndyOrch]

How much have you asked for...perhaps post a copy of your bill of costs?

 

Andy

[billyrayvalentine]

26hrs work + disbursements.

 

£550 approx claimed.

 

Not sure I can negotiate outside court if they are going to low-ball me.

 

Presume its a judge lottery though.

[AndyOrch]

Requires a breakdown ...then posters can advise if its realistic.

[billyrayvalentine]

Just starting my wasted costs application.

 

A few questions.

 

It seems I have to prove negligence/omission, or unreasonable behaviour of the claimants solicitor. In my case its a lack of compliance with the directions with from the claimant solicitor (eg no witness statement, no CCA provided after request, not providing inspection of disclosable docs etc). How does one provide a rebuttal to the question why didnt I apply for a strike out, when any of these events occurred, as opposed to going for "wasted costs"?

 

Are wasted costs applications generally (un)successful? Dont want to lose £155 if I have a small chance of success.

 

Are there any test cases I can quote of in my witness statement?

 

Thx in advance.

[AndyOrch]

Personal liability of legal representative for costs – wasted costs orders: rule CPR 46.8

 

5.1 A wasted costs order is an order –

 

(a) that the legal representative pay a sum (either specified or to be assessed) in respect of costs to a party; or

(b) for costs relating to a specified sum or items of work to be disallowed.

 

5.2 Rule 46.8 deals with wasted costs orders against legal representatives. Such orders can be made at any stage in the proceedings up to and including the detailed assessment proceedings. In general, applications for wasted costs are best left until after the end of the trial.

 

5.3 The court may make a wasted costs order against a legal representative on its own initiative.

 

5.4 A party may apply for a wasted costs order –

 

(a) by filing an application notice in accordance with Part 23; or

(b) by making an application orally in the course of any hearing.

 

5.5 It is appropriate for the court to make a wasted costs order against a legal representative, only if –

 

(a) the legal representative has acted improperly, unreasonably or negligently;

(b) the legal representative's conduct has caused a party to incur unnecessary costs, or has meant that costs incurred by a party prior to the improper, unreasonable or negligent act or omission have been wasted;

© it is just in all the circumstances to order the legal representative to compensate that party for the whole or part of those costs.

 

5.6 The court will give directions about the procedure to be followed in each case in order to ensure that the issues are dealt with in a way which is fair and as simple and summary as the circumstances permit.

 

5.7 As a general rule the court will consider whether to make a wasted costs order in two stages –

 

(a) at the first stage the court must be satisfied –

(i) that it has before it evidence or other material which, if unanswered, would be likely to lead to a wasted costs order being made; and

(ii) the wasted costs proceedings are justified notwithstanding the likely costs involved;

(b) at the second stage, the court will consider, after giving the legal representative an opportunity to make representations in writing or at a hearing, whether it is appropriate to make a wasted costs order in accordance with paragraph 5.5 above.

 

5.8 The court may proceed to the second stage described in paragraph 5.7 without first adjourning the hearing if it is satisfied that the legal representative has already had a reasonable opportunity to make representations.

 

5.9 On an application for a wasted costs order under Part 23 the application notice and any evidence in support must identify –

 

(a) what the legal representative is alleged to have done or failed to do; and

(b) the costs that the legal representative may be ordered to pay or which are sought against the legal representative.

[billyrayvalentine]

***Update***

 

I made an application to the court for wasted costs against the claimants solicitor. It went before a district judge, and the judge posted comments:

 

"Will the defendant please confirm that he needs to pursue a wasted costs order against the Solicitor, and he has recovered what costs he can from the Claimant."

 

What do I answer to this? I approached the Claimants solicitor, who approached their client and they offered me next to nothing.

[AndyOrch]

Wasted costs are recoverable against the claimants solicitor not the claimant Billy as I have advised above.

 

The power of the court to award Wasted Costs against a legal representative arises from the Courts and Legal Services Act 1990, Section 4(1), which enacted a new section 51 of the Supreme Court (now Senior Courts) Act 1981 (“SCA 1991”), which relates to both the High Court and County Court, as well as the Court of Appeal.

 

You state ..." posted comments " ? how...where? By way of a General Order?

 

You simply need to confirm yes to his comment and that no costs have been recovered from the claimant.

 

Andy

[billyrayvalentine]

Weird development in this case, i received a Notice of Allocation to Fast Track form and have got to complete a N181 directions questionnaire by mid feb.

 

What could this be about?

 

Billy

[AndyOrch]

Check with your Court.....cant be in connection to the claim as that's discontinued ?

[billyrayvalentine]

Check with your Court.....cant be in connection to the claim as that's discontinued ?

 

I called the court and they have no record of it. So I wrote them a letter for guidance. My experience with the court has been so dreadfully slow: you call them, they don't know anything, or the case file is elsewhere, or system needs updating and they are currently running 2 weeks behind schedule etc. Takes approx 1 month to reply to a letter.

[AndyOrch]

Sound like a simple error then billy....where are you with your costs?

[billyrayvalentine]

Sound like a simple error then billy....where are you with your costs?

 

The last update I had was I confirmed to the court that i wanted to pursue a wasted costs order against the solicitor, and that it went before a judge and an order/comments were being typed up, but couldn't tell me what they were.

 

I just want a judgement really, yes or no to the costs, as ironically will lead to more time/costs.

[Guest]

seems order/comments will be as per the cpr andy posted (5.7)?

it may end up in a hearing, depending on the representations/court order. have to wait see what it says.

[billyrayvalentine]

I called the court, and they said my file is with the listing department.

 

Apparently, a date will be set for a costs hearing.

 

So I guess the allocation questionnaire, was no mistake from the court.

 

What's my downside on this, can i lose the wasted costs hearing and have to pay their costs of thousands?

[Guest]

I called the court, and they said my file is with the listing department.

 

Apparently, a date will be set for a costs hearing.

 

So I guess the allocation questionnaire, was no mistake from the court.

 

What's my downside on this, can i lose the wasted costs hearing and have to pay their costs of thousands?

thought there wld be a hearing, claimant making their representations in dispute (cpr).

can you lose; possibly, not sure. and then have to pay their hearing costs; possibly.

did you not just apply for/or get a costs order 'on the standard basis' (which shld include LiP costs cpr 46.5) under cpr 38.6/44.9 as of right seeing that they discontinued?

[billyrayvalentine]

thought there wld be a hearing, claimant making their representations in dispute (cpr).

can you lose; possibly. and then have to pay their hearing costs; possibly.

did you not just apply for/or get a costs order 'on the standard basis' (which shld include LiP costs cpr 46.5) under cpr 38.6/44.9 as of right seeing that they discontinued?

 

I applied for a wasted cost order as per andy's advice in post #137, pursuant to CPR 46.8 against the claimants legal representatives.

 

I previously tried informally to get my costs back from the claimant via them, but was unsuccessful.

 

At this point in time, I don't feel particularly confident, or know much about cost hearings.

[Guest]

under 38.6, where there is a discontinuance, the other party is usually entitled to their standard costs as of right. if that wasnt ordered by the court, or paid voluntary by the party discontinuing, then an application under that cpr could be made for it. and ordered without a hearing if deemed reasonable.

an application for wasted costs is re unreasonableness etc (as per that cpr andy posted up) and is different. but, seeing that they refused to offer what you could have been entitled to as of right, then maybe they are being unreasonable. thats a point you could argue.

and, an assessment of costs at the hearing. did you get a note of their objections/representations?

[billyrayvalentine]

under 38.6, where there is a discontinuance, the other party is usually entitled to their standard costs as of right. if that wasnt ordered by the court, or paid voluntary by the party discontinuing, then an application under that cpr could be made for it. and ordered without a hearing if deemed reasonable.

an application for wasted costs is re unreasonableness etc (as per that cpr andy posted up) and is different. but, seeing that they refused to offer what you could have been entitled to as of right, then maybe they are being unreasonable. thats a point you could argue.

and, an assessment of costs at the hearing. did you get a note of their objections/representations?

 

At this stage, no hearing has been set yet. However, when I wrote to discuss costs informally, the claimants solicitor stated that the claimaint thought my hours claimed were too high (35hrs) and that I wouldnt succeed as I missed a directional stage (which I didn't).

 

I largely based my wasted costs order based on what i read on this forum. Are you saying, i should have made a standard application, but against the claimant?

[Guest]

look back at post #154

eg 5.5 etc

what i was thinking was that following a discontinuance, the other party is entitled to their standard costs as of right under the cpr i mentioned.

if that wasnt granted/ordered/or paid voluntarily, then an application could have been made under that cpr. it may then have been ordered as of right without a hearing if the LiP costs were seen as ok. though its poss it cld still end up in a hearing as a last resort.

but, you tried to negotiate costs, and they only offered 80? ie, it cld be argued that they have been unreasonable etc, so the current app'n may not be in vain, albeit being technically different.