Wanting to discontinue Small claims case before allocation. Worried about fees.

[Roighru]

Started a MCOL process regarding a company that sold me a faulty product. Was declined a refund within 30 days. 
 

The defendant filed his defense. Then it came to the allocation Questionnaire, where he failed to give it in on time. The case was struck out in my favor, he then applied to have it set aside. The set aside date is upcoming and after researching it seems the defendant has closed his place of business, and it’s sitting empty.
 

With realisation the case is now a non-runner, with bailiffs not going to be able to recover anything. I’d like to discontinue this case. I’ve filled out the N279 form ready to send but I understand if I discontinue, I’ll be liable for costs from the other party. 
 

The case has been allocated to my local county court but It’s not in writing that my case has been allocated to small claims track. 
 

I know it’s likely it’ll be treated the same if I send the form N279 but I can’t afford to be hit with more fees requests from the defendants solicitor. 
 

my question is, at what stage does a case get allocated for small claims, after the set aside? And is it worth waiting for the set aside for it to be over and then to send the form, when the case is allocated. 
 

many thanks 

[BankFodder]

What is the name of the defendant? Do you know that they have gone out of business? What is the value of the claim?

 

And what you mean by "fees requests" from the defendant solicitor?

[Roighru]

By fees request, I mean part 38.6 of CPR 

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.

I don’t know what kind of costs would be claim, all I know is that I’d be liable. 
 

value of claim £5000. And I know they’ve gone out of business because I saw an advert saying their place of business has been sold, along with their place of business being empty with a covered front. 

Edited October 25, 2022 by dx100uk
unnecessary previous post quote removed

[BankFodder]

So it sounds if you are best simply continuing the claim.

We don't know anything about your claim so we don't know about your chances of success. Maybe you would like to tell us. At £5000 is bound to be allocated to the small claims court.

You haven't told us the name of the company although I asked you. Are you trying to protect them?

[Roighru]

I’m rather trying to protect myself, incase they look themselves up and see what I’m conversing about them. It’s only a small business and if they didn’t know e.g they could claim costs if I discontinued and they then saw this thread about them. They would now know. 
 

I wouldn’t need to detail the events as my main concern now is the company building is empty. No assets inside and no chance for bailiffs too seize anything. As if I win in small claims I very much doubt they’ll be contacting me to pay. 
 

in terms of continuing, I’d rather not as it’s just extra effort for money I won’t be getting back. What I’m trying to understand is when the allocation for small claims is given, is it after both parties have submitted their Questionnaires? So if he handed in his questionnaire late and has a set aside hearing, will it be allocated to small claims if his set aside is granted?

 

cheers 

Edited October 25, 2022 by dx100uk
unnecessary previous post quote removed

[dx100uk]

eh? part 36 is not applicable to small claims.

 

 

[Andyorch]

There are a few points here you need to consider before deciding to discontinue.

 

Who has made the application to set a side Defendant or Solicitor ?

What does the application rely on as a basis of set a side ? ( Scan redact and upload a copy of the N244 and statement in support)

Have you submitted a response to their application ?

 

If they are successful in their application then yes the claim will move to allocation (DQs) and they may be awarded costs in the making of that application although very unlikely given that it was the court that struck out their defence for none/late compliance.

 

Once you have notice of allocation to SCT that is the time to discontinue by way of the N279 and you will not be liable for costs as CPR 38.6 is not applicable to small claims track. 

 

If there application to set a aside is denied then simply discontinue now or don't enforce the judgment. Although just because the business premises may be empty there are other ways of executing a judgment (Third Party Debt Order/Charging Order/ Attachment of Earnings)

 

Andy