MBNA county court Summons " Help Please

[AndyOrch]

And more importantly the fact that they had already lost Summary Judgment prior was never considered either.If application for SJ fails what has happened from then to your trial to enable judgment to be found in their favor? Nothing apart from the DJ not entertaining the details of the claim but just wishing to close it.Fair due though he did pull them on the costs.

 

Andy

[DizzieDiva2010]

And more importantly the fact that they had already lost Summary Judgment prior was never considered either.If application for SJ fails what has happened from then to your trial to enable judgment to be found in their favor? Nothing apart from the DJ not entertaining the details of the claim but just wishing to close it.Fair due though he did pull them on the costs.

 

Andy[/

 

Exactly my point. Will I have the opportunity to raise my points at the next hearing as I clearly wasn't heard at the previous hearing!

Edited October 4, 2011 by DizzieDiva2010

[AndyOrch]

Not much you can do apart from appeal but that would involve further costs.This is now damage limitation and only the case of costs to argue.

 

Andy

[DizzieDiva2010]

Not much you can do apart from appeal but that would involve further costs.This is now damage limitation and only the case of costs to argue.

 

Andy

 

Can you help me draw up my argument in order that I raise these points at the next hearing.

Edited October 4, 2011 by DizzieDiva2010

[AndyOrch]

Dizzie the argument is finished re the judgment, the next hearing is to discuss their costs and to be assessed to a reasonable level.

The only points you can raise are costs /track/ nothing in connection with the debt/ case.This is court procedure now and you must endeavor to restrict their costs to the minimal.

 

Andy

[DizzieDiva2010]

Dizzie the argument is finished re the judgment, the next hearing is to discuss their costs and to be assessed to a reasonable level.

The only points you can raise are costs /track/ nothing in connection with the debt/ case.This is court procedure now and you must endeavor to restrict their costs to the minimal.

 

Andy

 

The Judge at the last hearing said he could not do anything about the case being put in the wrong track so what can I say about this at the next hearing?

How can I endeavour to restrict their costs to the minimal?

Edited October 4, 2011 by DizzieDiva2010

[AndyOrch]

The Judge at the last hearing said he could not do anything about the case being put in the wrong track so what can I say about this at the next hearing? He could have re allocated it to the correct track.The fundamental question is why was the N150 despatched instead of the N149?

How can I endeavour to restrict their costs to the minimal?

 

Some more useful information DD

 

Costs recoverable in claims that should be allocated to SCT

Where a consent order provided for costs to be paid on the standard basis, the Costs Judge could still consider whether it was reasonable for the paying party to pay more than would have been recoverable had the case been allocated to the SCT.(O'Beirne v Hudson)

O'Beirne vHudson [2010] EWCA Civ 52

Background

The Claimant was hit from behind at a roundabout and issued proceedings claiming general damages exceeding £1,000. Prior to the case being allocated to any track, settlement was agreed at £400 general damages and £719.06 hire charges. The Defendant signed a consent order which included the provision:

"The defendants do pay the claimant's reasonable costs and disbursement on the standard basis, to be subject to detailed assessment if not agreed".

The Claimant provided a Bill of Costs and the Defendant served Points of Dispute which made a general point that, if the case had been allocated, it ought to have been allocated to the small claims track (SCT) so the Claimant could recover fixed costs only. At assessment, the District Judge held that the terms of the Order fettered her discretion and precluded the matter being limited solely to the SCT. She assessed the costs at £3,987.29.

The appeal Judge held that the DJ was wrong and that there was nothing in the Order which took away from the Defendant the right to argue that costs should be assessed by reference to the SCT. It was a matter that remained within the discretion of the Court on assessment. The Claimant appealed.

Court of Appeal decision

The Court held that, to the extent that the appeal Judge could be understood to be saying that the Court would be entitled simply to assess costs by reference to the SCT regime, he was wrong. But a Costs Judge is entitled to take account of all circumstances (CPR 44.5(1)), including the fact that the case would almost certainly have been allocated to the SCT and what could or could not be recovered if the case had been so allocated. At that stage the Costs Judge must question whether, if it could have been fought in the SCT, it is reasonable that the paying party should pay the costs of a lawyer. The Costs Judge would not be bound only to allow the costs as per a case on the SCT but it would be a "highly material circumstance" in considering what by way of assessment should be payable.

The Court of Appeal said that the test was whether it is reasonable for the paying party to pay more than would have been recoverable in a case that should have been allocated to the SCT. Where a claim should have been allocated to the SCT but settles beforehand, a Costs Judge should consider whether it had been necessary to have had lawyers and, if so, if it is reasonable for the paying party to have to pay for lawyers.

This is an important decision for insurers and Defendants. It is often possible to settle a claim below £1,000 general damages but Claimants will insist on having costs paid as part of the agreement. An offer of, say, £500 plus fixed costs is unlikely to be accepted and the Defendant must then decide whether to press on and seek allocation to the SCT, which is often difficult because DJ’s are reluctant to assume on the papers alone that a claim could not exceed £1,000. Acceptance of an offer of £500 when liability is not in issue is good evidence of the claim’s value. Defendants can now offer to pay standard costs knowing that they can ask the Court to assess costs by reference to the question whether it is reasonable to pay more than would have been recoverable in a case that should have been allocated to the SCT. Whilst it is perhaps unlikely that Courts will routinely allow fixed costs only, the test is a powerful negotiating tool and should enable substantial savings in recoverable costs in low value claims.

 

Arguably, the same test could extend to the situation where a claim is allocated to the fast track but, in retrospect, should have been allocated to the SCT.

Regards

Andy

[DizzieDiva2010]

Have i got grounds for appeal because this case was allocated to the wrong track, im phoning the court tomorrow.

[AndyOrch]

Would you qualify for exemption DD?

[DizzieDiva2010]

I have to think and write up the reasons as to why I believe I should be exempt from paying any solicitors costs.

Edited October 5, 2011 by DizzieDiva2010

[AndyOrch]

Court Fees

[DizzieDiva2010]

Would you qualify for exemption DD?

 

I am on benefit.

 

At my next hearing i will make sure I go to court having had sleep 48 hours before.. Sleep deprivation is no good for the mind.

 

Im pleased with the result of having to pay £20 per month although it is a struggle but at least it's getting paid, I just have to try and win the next hearing, I'm not sure im up to

It but I have no choice because I'l drown otherwise

Edited October 5, 2011 by DizzieDiva2010

[AndyOrch]

I am on benefit so I should be exempt from court fee's so that just leaves the £12,000 solicitors fee's down to the Judge to decide on the amount I have to pay.

 

I have to think and write up the reasons as to why I believe I should be exempt from paying any solicitors fee's.

 

Legal Aid?

[DizzieDiva2010]

Legal Aid?

 

I can get legal aid that's what I am getting now with community legal advice. I can't find a solicitor to represent me none of them are interested, makes you wonder why when over half the population have debts!

[AndyOrch]

Would you feel more comfortable and confident with representation, if you decided on an appeal, not consider doing it yourself?

[DizzieDiva2010]

Would you feel more comfortable and confident with representation, if you decided on an appeal, not consider doing it yourself?

 

I certainly would, I'm no good at representing myself I had a go but the Judge wasn't up for listening to me unlike the first Judge I had unfortunately. I have telephoned pages of solicitors and I get the same answer!

Edited October 5, 2011 by DizzieDiva2010

[AndyOrch]

Have you considered no win no fee? PM Undercover Elsa say I have prompted you to request any legal assistance contacts.I'm sure she as posted some good contacts for others.

 

Andy

[DizzieDiva2010]

Have you considered no win no fee? PM Undercover Elsa say I have prompted you to request any legal assistance contacts.I'm sure she as posted some good contacts for others.

 

Andy

 

No I havnt.. I will follow your advice and PM undercover

Elsa tomorrow. Thanks for your assistance again I'l be back on line tomorrow. Iv read the info you posted up but it's alot for my brain to take in right now.. Will keep reading it because there is some useful info there. Night Andy

[AndyOrch]

I know you have a lot going on at the moment try to forget the judgment and £2.2k.Concentrate on their costs and a possible appeal.

Fee exemption and possible representation.Wrong AQ = Wrong Track = excessive costs.

 

Night Dizzie

 

Andy

[DizzieDiva2010]

I know you have a lot going on at the moment try to forget the judgment and £2.2k.Concentrate on their costs and a possible appeal.

Fee exemption and possible representation.Wrong AQ = Wrong Track = excessive costs.

 

Night Dizzie

 

Andy

 

 

Andy do you mean concentrate on the next hearing and if they are awarded costs think about an appeal then?

[AndyOrch]

Yes DD did you contact Elsa?

 

Andy

[DizzieDiva2010]

I have emailed Undercover Elsa.

Edited October 6, 2011 by DizzieDiva2010

[Dotty50]

All ok Dizzie?

[DizzieDiva2010]

All ok Dizzie?

 

Hi Dotty..i have not heard back from the court yet with regards to the costs and iv been busy settling in with my son x

[Dotty50]

Glad your settling in with him Dizzie, little boys are lovely!