Claiming costs (in small claims track) after Claimant's claim struck out.

[BazzaS]

Claimant issued a claim against a friend (the defendant).

Claim acknowledged (AoS) and defence filed, all in time.

Order for payment of hearing fee by claimant issued by the court,  (with automatic strike out and costs if hearing fee not paid), allocated to small claims track.

C initially agreed to mediation but cancelled.

 

Witness statements filed and served.

D's filed and served in time, C's served in time, unsure if C's filed in time, (as was due on the Monday that became a bank holiday for the Queen's funeral).

C's witness statement said they cancelled the mediation "as mediation would have meant accepting less than the full sum claimed, and they couldn't accept less than the full sum"

C's witness statement signed and dated for that last Monday (when the court would have been closed)

 

D and a witness turned up at court with me as a McKenzie friend / lay representative. We couldn't find the case listed, and it turns out that C's claim had been struck out (for non-payment of the hearing fee).

The strike out took place a number of weeks after the deadline in the 'unless' order (mid October), but only a few days before the hearing date, so D and their witness didn't know the case had been struck out.

We didn't see C, or 2 of their 3 witnesses, who we would have recognised, at court.

 

So, how to claim costs, and what costs?.

 

Costs in the SCT are limited, (CPR 27.14) but is it correct that D can claim costs for:

a) preparation time, perhaps 5 hours at LiP rate (and not exceeding  £100)

b) costs for bundle (printing, paper, lever arch files)?

c) travel (what rate for mileage?) and car parking? (CPR 27.14 (2) (d) )

d) (CPR 27.14(2)(e) Having to take a day's leave (/ losing a day's leave for using up e.g. an annual leave day), £95 maximum (PD27A 7.3 (1))  for each of C and their witness?.

What about me, as a lay representative (PD27A 3.2 (1) and (2) ) ?

e) anything else under summary assessment (CPR 27.14(2)(g)) ?

 

If so, does D make an application on a N244 for these costs? and do they need to give C an opportunity (14 days??) to settle these before submitting the N244 (given that adds another £275 application fee).

[BankFodder]

Very difficult and I certainly don't have any experience of this.

I suspect that you are right that you will have to make an application notice but that of course will also cost you a lot of money.

 

 

 

[Andyorch]

Costs are only awarded to the successful party after hearing and by request.....given the claim was struck out by the court of its own volition the court will not consider you as the successful party.

[BazzaS]

The application fee is £275?

but that can be included in the costs??

(& hence me asking if we need to appear reasonable / give C a chance to settle without an application), or if

 

(given they can be seen to have acted unreasonably / to have abused the process by:

a) not fully complying with pre-action protocol

b) not filing in time (& it looks like they waited for our WS before filing theirs, late, from the dates on their WS

c) not paying the hearing fee) …..

if they’ve acted unreasonably and we can just go straight to the costs application, to avoid having to interact with them with ‘letters back and to’

 

Would input from a guru like dx help?

[BazzaS]

Andyorch : I’d bow to your greater knowledge : but the ‘unless order’ (that they didn’t comply with) warned them that

a) their claim would be struck out, AND

b) if struck out they’d be liable for costs!

 

Why would it say that if they aren’t liable for costs?

Edited November 15, 2022 by BazzaS

[Andyorch]

Thats quite rare for an Unless Order to state that could you possibly scan redact and upload a copy ? Not that I disbelieve you.

 

Did your N157 Notice of Allocation also state the same ?

[BazzaS]

I’m out ATM but I shall when home. Thank you

[Andyorch]

 And a copy of the N157 would be helpful...if in fact it does state that and not " b) if struck out you may be liable for costs!

Then you should make an application without notice which would only cost £108 for a Costs Order

[BazzaS]

It was a N172 Notice of trial date.

"Unless the claimant does" (pay the hearing fee by <date>) "the the claim will be struck out with effect from <date>" .... "and, unless the court orders otherwise, you will be liable for the costs which the defendant has incurred"

 

(but the court didn't strike it out until a few days before the hearing was due, so we still turned up).

 

If you still feel that sight of the preceding (redacted) N157: Notice of Allocation to the small claims track will help, I'll happily redact and post that up, too, but I'll need to get it from D.

NoticeOfTrialDateRedacted.pdf

[Andyorch]

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/688465/n172-eng.pdf

 

Take a read of the following as relief from sanction could be imposed.

 

https://www.civillitigationbrief.com/2021/11/17/the-court-of-appeal-and-failure-to-pay-the-trial-fee-relief-from-sanctions-granted-even-though-no-formal-application-was-before-the-court/

 

https://www.lexisnexis.co.uk/legal/guidance/where-the-court-has-struck-out-a-claim-for-failure-to-pay-the-listing-fee-is-failure-to-pay-a-listing

 

[BazzaS]

So, D can apply for costs?

 

But C can then apply for relief from sanction (costs)?

 

since C can apply for relief from sanction, worth NOT making it an application without notice?

(I don’t mind the higher application fee if C will end up having to pay it anyway!)

 

If C does apply for relief from sanctions, I’d suggest D put forward that the totality of C’s behaviour (their breaches listed above!) means relief from sanction shouldn’t be granted.

Edited November 16, 2022 by BazzaS

[Andyorch]

All yes possibly but if you think it's worth an application (£108.00) for a wasted costs order pursuant to the references above then give it a go.

[BazzaS]

I saw (EX50, p.9) that  if court accepts the “without notice” application it is the reduced fee.

 

if the court deems it to require notice, they can ask for the extra fee (the difference) to make it up to the £275.

<Quote>
On/With notice means notification of the application to the other side, regardless of whether there is a hearing or not.
Without notice means no notification of the application to the other parties, regardless of whether there is a hearing or not.
If an application by consent or without notice/is refused and is ordered on notice the excess balance of the fee should be paid to the court to process the application on notice.
<end quote>

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1093005/EX50_web_0722.pdf

 

 

if (either) application succeeds : can the amount requested to be in the judgment include that application fee?

[Andyorch]

Yes costs in the making of the application are also applicable.