Discontinuance of a claim?

[JohnSmith1000]

Hi there

 

My wife decided to file a claim against someone who we rented a holiday home from. Small claim (under £2,000) submitted through the Money Claim online website.

 

She is now questioning her decision given the hassle involved of pursuing the claim (it is not clear cut as relies on sale of goods act etc) and is considering discontinuing the claim. The claim was submitted just this morning.

 

I see there as being two options:

 

1. discontinue the claim

 

A couple of questions on discontinuance if I may:

 

- am I right that Part 38 (38.6) of the CPR applies to this claim and so, in principle, my wife would be liable for costs incurred until the notice of discontinuance is served on the defendants?

 

- am I right that if to be discontinued she should be using form N279 to discontinue and that she complete that and send it to the court and at the same time send it to the defendants?

 

- if 38.6 does apply is there a practical way to avoid the defendant incurring claimable costs asap? E.g. should she email them to say I've submitted a claim but am discontinuing?

 

- how can she get the missing information for the discontinuance notice at this point so she can send it off asap e.g.

 

A. "In the....",

 

B. presumably no Judge is relevant in the "granted permission" section?

 

C. ""The court office at...."?

 

2. let the claim run

 

If she lets the small claim run, does she risk incurring the liability to pay the defendant's costs? She was operating on the basis that for small claims you never pay the defendant's costs, but that does not sound logical to me.

 

I suspect she will prefer the discontinuance route.

 

Any guidance much appreciated.

 

Many thanks

[Andyorch]

CPR 38 does not apply to small claims track.(Wasted Costs)

 

 

Regards

 

 

Andy

[JohnSmith1000]

Thanks very much Andy. I think she will follow the discontinuance route.

 

A couple of follow-ups if I may:

 

1. I cannot see where the rules say that CPR 38 does not apply to small claims - can you point me in the right direction?

 

2. is it safe to assume that this would be a small claims case before it is allocated - holiday rental, not in good condition, sale of goods claim for under £2k?

 

3. assuming she wants to discontinue, what is the most practical way to proceed? Am I right that she should be using form N279 to discontinue and that she complete that and send it to the court and at the same time send it to the defendants?

 

4. how can she get the missing information for the discontinuance notice at this point so she can send it off asap e.g.

 

A. "In the....",

 

B. presumably no Judge is relevant in the "granted permission" section?

 

C. ""The court office at...."?

 

Many thanks

[Andyorch]

CPR 38 does apply with regarding discontinuance its just the costs that do not:-

 

 

Liability for costs

 

38.6

(1) Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.

(2) If proceedings are only partly discontinued –

(a) the claimant is liable under paragraph (1) for costs relating only to the part of the proceedings which he is discontinuing; and

(b) unless the court orders otherwise, the costs which the claimant is liable to pay must not be assessed until the conclusion of the rest of the proceedings.

(3) This rule does not apply to claims allocated to the small claims track.

Small claims track up to 10K so although the claim has not yet been allocated it will be SCT

3. Yes

4. Northampton CCBC forget the rest just insert claim number if you have it yet.

[mjt2013]

Technically the rule will apply to this case because it hasn't yet been allocated but, if the Claimant is quick, no costs are likely to have been incurred. If you do decide to discontinue then you would do well to contact the Defendant ASAP as you suggested.

 

Before you decide perhaps look up the costs rules in SCT cases (which will almost certainly apply if the case is not discontinued) and you'll see that the costs recoverable are very limited in any event, particularly for a Defendant as fewer fees apply, so there may not be too big a costs risk in continuing as long as you act reasonably throughout.

[JohnSmith1000]

Thank you for the responses on this. We've been considering what to do.Is there a link someone can point us to that shows defendant's recoverable costs? We're trying to calculate our maximum exposure if we lost the case on the assumption that it was allocated to the small claim court.Can anyone see any signifincat risk that it would be allocated to a track other than a small claims court? E.g. the fact that it is a sale of goods act case rather than, say, a simple debt claim? I'm not familiar with the real remit of the small claims court.Many thanks

[Ganymede]

Is there a link someone can point us to that shows defendant's recoverable costs?

 

 

Don't think that will exist as it is case specific.

 

If it is SCT then there is almost no risk to having to pay costs unless you are deemed to have acted so unreasonably the Defendant should be awarded costs.