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Ash
Ash, Solicitor
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Experience:  Solicitor with 5+ years experience
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An Appeal against an Appeal brought by a Defendant against

Customer Question

An Appeal against an Appeal brought by a Defendant against me was settled in his favour.
The Defendant was represented at all times by a Solicitor who submitted a Claim for legal costs (covering the original Hearing and the first Appeal (both found in my favour) and the final Appeal) for some £ 6,000 – which the Judge awarded against me.
As the Claim was allocated to the small Claim Track is this in accordance with CPR 27(?), please?
Thank you
Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.
Alex Watts : Hello my name is ***** ***** I will help you with this.
Alex Watts : For now please let me know did the Solciitor claim for costs for both the original small claim and subsequent appeal please?
Alex Watts : Did the judge make a finding you had acted unreasonably?
JACUSTOMER-pvsm40am- :

Thank you

JACUSTOMER-pvsm40am- :

Thank you - yes, it was for all services/work to that date and no, the Judge did not make such a finding

JACUSTOMER-pvsm40am- :

Actually, it would have been difficult to do so - I, after all, 'won' the case and the first, subsequent appeal?

Alex Watts : Ok. In that case the court should hsve disslloawd the costs of representation at the small claims hearing
Alex Watts : these are not recoverable under the rules unless there is a finding that you have acted unreasonably
Alex Watts : As for any appeal, if you lose the appeal, that is out of the small claims track and you would be liable for those costs.
Alex Watts : But those costs must be limited to work done on the appeal and not the small claims hearing.
Alex Watts : You can appeal the decision on that point
Alex Watts : Can I clarify anything for you about this today please?
JACUSTOMER-pvsm40am- :

Re ""

JACUSTOMER-pvsm40am- :

RE "As for any appeal, if you lose the appeal, that is out of the small claims track and you would be liable for those costs."


Costs on the small claims track


27.14

(1) This rule applies to any case which has been allocated to the small claims track unless paragraph (5) applies.

(Rules 46.11 and 46.13 make provision in relation to orders for costs made before a claim has been allocated to the small claims track)

(2) The court may not order a party to pay a sum to another party in respect of that other party’s costs, fees and expenses, including those relating to an appeal, except –

(a) the fixed costs attributable to issuing the claim which –

(i) are payable under Part 45; or

(ii) would be payable under Part 45 if that Part applied to the claim; does not 27.14 (2) apply?

JACUSTOMER-pvsm40am- :

Also "But those costs must be limited to work done on the appeal" does that include BOTH Appeals, please (including the one I won)?

Alex Watts : Yes.
Alex Watts : But an appeal is not a small claim.
Alex Watts : It is outside that area and no longer a small claim.
Alex Watts : The small claims ends on disposal.
Alex Watts : Therefore if there is an appeal and you lose you have to pay the costs of appeal.
Alex Watts : Not the cost of the small claim work, just the appeal.
Alex Watts : Does that clairfy ?
JACUSTOMER-pvsm40am- :

CPR 27.14 deals specifically with "Costs on the small claims track"

JACUSTOMER-pvsm40am- :

it states quite specifically "(2) The court may not order a party to pay a sum to another party in respect of that other party’s costs, fees and expenses, including those relating to AN APPEAL, except" - are you saying that is a 'general' statement - inapplicable in the case of a 'small claim' ?? - or am I being 'thick', perhaps?

JACUSTOMER-pvsm40am- :

Editing out the extraneous material gives

27.14

(1) This rule applies to any case which has been allocated to the small claims track - the court may not order a party to pay a sum to another party in respect of that other party’s costs, fees and expenses, INCLUDING THOSE RELATING TO AN APPEAL ???


Alex Watts : Yes because Part 52 deals with appeals.
Alex Watts : You lost an appeal and costs follow the event.
Alex Watts : you can appeal the whole costs point, but I think you will only have protection from the costs from the original hearing.
Alex Watts : Does that help?
JACUSTOMER-pvsm40am- :

I accept that Part 52 deals with Appeals but it does not seem to cover Costs within 5.8 (or anywhere else) - nor is it referenced within Part 27? - given your response quite what does "(2) The court may not order a party to pay a sum to another party in respect of that other party’s costs, fees and expenses, including those relating to AN APPEAL, except" therefore actually mean and in what circumstances does it therefore apply, please?

JACUSTOMER-pvsm40am- :

Sorry - you seem to have sent a message at 17.07 but all I can see finalises with my message of 4.23??

Alex Watts :

Indeed.

Alex Watts :

IF the Judge made no finding against you for unreasonable behaviour either in the main small claim and the appeal then NO costs are paybale.

Alex Watts :

If the Judge made a finding either at the small claim OR at the appeal then costs ARE paybale.

Alex Watts :

Does that clarify matters?

Alex Watts :

As I said you can appeal the point in any event that the Judge was wrong in law.

Alex Watts :

Does that help?

JACUSTOMER-pvsm40am- :

Sorry, I don't think that really answers my question "given your response quite what does "(2) The court may not order a party to pay a sum to another party in respect of that other party’s costs, fees and expenses, including those relating to AN APPEAL, except" therefore actually mean and in what circumstances does it therefore apply, please?" also quite how would the Judge indicate that that he "made a finding against meu for unreasonable behaviour either in the main small claim and the appeal " - would that have to be specifically stated on the 'General Form of Judgement - finally if he did how does this override 27.14(2)? - thanks

JACUSTOMER-pvsm40am- :

Finally, as an afterthought could a Judge actually reasonably find, at an appeal against an appeal brought by the other side that I 'acted unreasonably' given that I won the original case and the first appeal? and what CPR would authorise him to permit "If the Judge made a finding either at the small claim OR at the appeal then costs ARE payable." - thanks

Alex Watts :

Ok - if you have acted unreasonably and the Court has made a finding then you are liable for costs

Alex Watts :

The Judge would have said - You have acted unreasonably or the other side would have asked the Judge to make a finding

Alex Watts :

Just because there is an appeal does not mean you have acted unreasonably.

Alex Watts :

If the Judge NEVER made that finding then the other side are NOT entitled to costs, beyond that of a small claism track

Alex Watts :

Rule 27.14(2)(g)

Alex Watts :

Can I clarify anything else for you

JACUSTOMER-pvsm40am- :

Good - final question, please - Is it enough that "The Judge would have said - You have acted unreasonably or the other side would have asked the Judge to make a finding" (he didn't and I will obtain a transcript) or should it have been stated in the resulting general form of Judgement

Alex Watts :

Generally it does not show it in the court order.

Alex Watts :

But it will certainly be in the transcript

Alex Watts :

But in any event you would need that transcript to appeal anyway to show that the Judge did not make a finding

Alex Watts :

As such it will be helpful. That way you will know

Alex Watts :

Does that help?

Alex Watts :

If I could invite you to rate my answer before you go today - the button should be at the bottom of the screen. If you need more help please click reply.

Alex Watts :

If this answers your question could I invite you rate my answer before you leave today.


If the system won’t let you please click reply.



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