Defending Tenant's solicitor missed filing deadline, should I strike out or negotiate?

[AGlandlord]

Hello,

 

I am the claimant landlord in a section 8 eviction on discretionary grounds, which the tenant is defending via their legally aided solicitor.

 

The judge made an order for the defence to submit their defence and counterclaim by 4 pm today. However, the solicitor within the firm originally handling the case has left the firm, and another solicitor has taken it over. The new solicitor contacted me yesterday to request an extension to the submission deadline (12 days after I tried to contact the former solicitor to begin negotiation), as we both wanted to negotiate an out-of-court settlement.

 

Normally I would agree to do this, but the former solicitor has tried very hard to have my claim struck out, despite the fact I am not legally represented, on aspects of the claim's format and presentation. The judge remarked that the claim fundamentals were always clear and the applications failed after multiple amendments.

 

I have put forward an offer to dismiss my claim without an award for costs to either party, as it has gone on for too long, and I can issue a section 21 as the term is ending soon. I've been told that negotiations will be delayed by at least 2 weeks as the new solicitor is on holiday.

 

So I am now considering 3 options, and I would value advice on the pros and cons of each option please:

 

1. Wait a week and visit the court with a letter to dismiss my claim, as I am the claimant and the defence will have missed the filing deadline by 7 days. I'd give this to the Court Officer to request the claim is dismissed. As this is my claim in the first place, would the defendant have any opportunity to object at this stage?

 

2. File an N244 unless order. This would cost me, and I think would give the solicitor the impetus and time to file a defence and counterclaim. This would also move away from the position of negotiation and incur defence costs

 

3. Agree to extend the deadline. I would normally do this, but I am wondering if I have a tactical advantage by choosing option 1...?

 

Many thanks for any opinions and answers you can provide.

 

Kind Regards,

AGlandlord

[NewToTheFight]

Just my opinion, for what it's worth

Do nothing

My reasoning:

1) If you withdraw your claim you may prejudice any further action

2) If you withdraw the defendant ( or their solicitors) may be able to claim costs

3) If you cannot progress in any other way you would have to start th process again from the begining

4) If you do nothing & do not request judgement by default no harm done

If pushed you can agree an extension, there is nothing to stop negotiation in the meanwhile

 

Note I have no legal training but am trying to apply comon sense

[AGlandlord]

Thanks for your response. I would ask how the defendant would have the right to claim costs, if they have not complied with the Judge's order and missed the filing deadline by a week, by the time that I submit my application to dismiss?

 

Because it is my claim in the first place, why wouldn't I have the right to request dismissal without award of any costs to the defence?

[AndyOrch]

Research Notice of Discontinuance / Withdrawal with a NOD you are liable for wasted costs CPR38.

 

Regards

 

Andy

[AGlandlord]

Thanks for the response Andy - rather than me requesting discontinuance (which could prejudice my liability in the matter), could I not ask the court to execute its powers of claim dismissal without award of costs to either party, for the disobedience of the defence in missing the deadline by a week, under Practice Direction 33A, paragraph 1.2 a)?

[robcag]

..... could I not ask the court to execute its powers of claim dismissal without award of costs to either party, for the disobedience of the defence in missing the deadline by a week, under Practice Direction 33A, paragraph 1.2 a)?

 

IMHO, under the circumstances described above, if the Judge was to be doing any dismissing or striking out it would be against the Defendant.

 

You appear anxious to drop this claim with no further cost to yourself so why not try the approach of proposing that both parties consent to the claim being dismissed and the parties bear their own costs?

 

Rob

[AGlandlord]

My apologies - my previous reference applies only to family law. However, does Part 12 Default Judgement, 12.1 b) apply to such a case as an alternative?

 

Thanks for the response Robcag - you are correct in that I am keen to drop this claim whilst avoiding further cost to myself. I was ill advised to begin this claim - it is a section 8 on discretionary grounds, which I later learned would be arduous and expensive to win, and is not a guaranteed win. Plus the defence's solicitor has been seeking to strike out my application on multiple minor grounds and has failed to do this, so I see no reason if the defence has been non-compliant why I shouldn't try to have the claim subject to a default judgement of dismissal without any award of costs to either party, as this presents the least cost least time option available to me?

[AGlandlord]

I've drafted a letter I propose to submit to the Court on Wednesday:

 

"I write in relation to the above mentioned case, and note that the Defence has not filed their Defence to Claim and Counterclaim on time, and as agreed by the Defence at the hearing of 8th May 2012. Their response was due by 4 pm on Wednesday 30th May, which is now a week late. The Defence has therefore not complied with the Honourable Judge X’s directions for filing on time.

For this reason, I wish to request a Default Judgment in default of Defence under Part 12 of the Civil Procedure Rules, rule 12.1 (b) and rule 12.3 (1) for a dismissal of the whole Claim, without an order for costs awarded to either party.

I do not wish to submit this as a discontinuance of claim, but would prefer such a Judgment to avoid the accumulation of further unnecessary defence legal aid costs and claimant legal costs.

Please confirm by response if a default Judgment of dismissal without cost award to either party can be made."

Please can you advise if the above is a reasonable letter that a Court Officer / Judge might consider?

Many thanks for any replies you can provide.

[AndyOrch]

Yes that's fine AG , the behaviour of either party is always considered when the question of costs is to be determined. Alternatively to the above you may consider Summary Judgment CPR 24.

 

Regards

 

Andy

[AGlandlord]

Thank you for your replies to date everyone. I thought I should update you - today I received a "Notice of Hearing" from the Court, requesting both the defence and myself to attend, as a result of my Default Judgment letter request.

 

I should add more background at this point: I submitted the Section 8 (under discretionary grounds) claim under bad advice last August (almost a year ago!), and want to exit proceedings knowing my chances of evicting are low. Furthermore, the tenancy ends in December, so the merit of such a claim has diminished anyway.

 

The hearing setting the dates for filing of defence took place on 2nd May, filing deadline being 30th May. I contacted the defendant's solicitor whom I was deadling with on the 16th May after having amended my claim as directed. However, I found out on 29th May that he had left the firm in the second week of May, a new solicitor was assigned, and the new solicitor was requesting an extension to 28th June at the earliest for filing via email. I did not respond to this request (as I did not agree to it).

 

I have held a "without prejudice" conversation with the solicitor over the phone on 29th May, informing the solicitor I wouldn't be agreeing to any filing extension delays. As far as I'm concerned, they are a professional firm. If one of their caseworking solicitors leaves the firm, they should be expedient enough to hand over the case in good time and file within acceptable timings. Furthermore their firm have tried to strike out my claim repeatedly on grounds of incorrect formatting, wasting time and money (I have filed my claim as a lay-person, as I cannot afford legal representation, but do not qualify for legal aid), so I see it as fair to deny them this request in light of their prior actions during the case.

 

What worries me is the Court's reaction. If this is a default judgement, why would they need to request a hearing? Doesn't this mean further cost accrual on both sides (when half the point of the default judgment was to limit cost accrual)? The defence has now been notified of my action, and the hearing date is set at the end of July, which gives them enough time to file a defence with the Court. So my questions are as follows:

 

1. If the defendant files a defence and counterclaim before the hearing date, does my default judgment request become nullified?

2. Would I need to seek legal representation at such a hearing? The fundamentals are clear - the defence failed to file on time (and still haven't filed to date)

3. A hearing will cost both parties time and money. What reason(s) would the court have to schedule a hearing, when I (as the claimant) was asking for a 'no award to either party' decision?

4. Should I try to write a letter asking the court to explain the hearing (on the grounds of cost accrual, and an amicable proposal on my part, accepting that the defence have failed to file on time), and request decision by post instead?

5. Could the court accept an excuse from the Defence that their previous solicitor left and they had court notes to progress through from the dates of mid-May to 30th May, thereby not having enough time (which sounds ludicrous and unprofessional to me)?

 

Once again, many thanks for any replies you can give.

 

Kind Regards,

AGlandlord