Notice of Discontinuance from Creditor

[avatari]

When an alleged creditor discontinues after watertight defence submitted and there has been a hearing and allocation to the small claims track:

 

What is better,

 

1. Apply for costs from creditor for discontiuing and if they fail to respond to offer satisfactorily, apply to court for costs OR

2. Apply for costs from creditor on basis of setting aside NoD if they don't pay, then if they don't pay apply to seta side NoD, apply for SJ against them, then get costs awarded after claim is struck out?

 

Surely the latter is better if you have the stomach for a fight, on the basis that then it's even harder for them to resurrect the claim/less likely to sell debt on etc? I've read some horror stories on here of NoD from original creditor then a new claim pops up months later from a new creditor when the debt has been sold on.

[harrassed senior]

Hard to say without more details.

[avatari]

"WATERTIGHT DEFENCE"

 

all other things being equal

[DonkeyB]

If it has been allocated to small claims, costs are not usually recoverable, I believe.

 

This is why Bryan Carter, for example, usually waits until after allocation to SC to discontinue.

[avatari]

The creditor has discontinued and I am almost at the deadline for applying to have a notice of discontinuance set aside.

 

I have an application for strike out pending listing. I have written to the creditor requesting costs and they have replied.

 

The creditor has made an offer for my costs which is far below my assessment, and doesn't even cover my disbursements, let alone my time.

 

How do I go about applying to have this set aside - what form, what's the court fee?

 

Or should I forget about gaining SJ/SO, accept the discontinuance and simply apply for costs? Again, how should I do so?

 

Thanks - this needs posting tomorrow to be sure of getting in on time (though I could do on Mon if posted by SD)

[avatari]

Actualy, I've done some more reading and can see from several threads that if I decide not to set aside, a N252 with costs summary to the claimant giving them 25 days is the best way to go - I assume this applies even though I have already asked them for costs with summary in a letter without N252?

 

I have already filed a defence but the claim is still trackless (no AQ).

 

But the question still stands (and I really need an answer soon please if I am to get this off today if it is to apply for set aside) should I apply to set aside and go for SJ, or just accept discontinuance and apply for costs this way?

[cerberusalert]

Threads merged.

[DonkeyB]

I thought you said the claim had been allocated to SC?

 

If not, then you don't need to oppose the discontinuance to get your costs. This could prove an expensive route and might pee off a judge. While a strike out would be nice, there's limited chance of this coming back to haunt you.

 

If no track was assigned, then simply chase your costs, via the court if necessary.

[avatari]

DonkeyB, thanks for coming back to me.

 

The confusion (I mean, my confusion ) over allocation was because of the merged threads (which I requested, thank you Cerberusalert). In the original thread (which started at post #1 above) I believed it was allocated due to my misunderstanding about claims set aside after judgement by default, I then subsequently realised that as the claim was back to square one, the claim was again trackless.

 

To clarify, the claim has had a defence submitted by me, followed by an application for SJ/SO, and the claim has NOT been allocated to a track, as no AQ has been filled out. Before the application could be listed, the claimant has discontinued after receiving my defence and SO application. I have asked for costs in a basic letter with summary of costs, the claimant has replied with a derisory offer.

 

I will now hit them for costs and revert to court for costs by default if they don't play ball.

 

Thanks again.

[DonkeyB]

Yup - that's the way. It's all in your favour - as long as your costs are reasonable, and if necessary with the court's help (though it may need an N244 and an order), you should get your costs. I see no reason for them to do the usual offer of around two-thirds given the fact that it was trackless, a defence had been entered, and they discontinued. Good luck!

[avatari]

Thanks DonkeyB, I will update when i get a response to my next letter.

[avatari]

DonkeyB, apologies to be coming back so late on this one, this did drag on. I did go for, and achieve, costs by default, as the claimant failed to respond to several informal and formal (n252) requests for costs. This was appealed by the claimant after the court order was achieved (they obviously thought I was bluffing for some crazy reason, the court order must have been a shock for them!!!) and a detailed assessment of costs was held at a hearing subsequently, where sadly the default sum was revised downwards substantially. I still got a fair amount though (and in appreciation of help here and in another thread have made a contribution to CAG).

 

Thanks again for your help.