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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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Hi, I hope someone can help me with this. My dad was a

Resolved Question:

Hi, I hope someone can help me with this.
My dad was a claimant in a road traffic accident that happened in 2008. In June 14 the judge made a fraud ruling against my dad in favour of the insurers of second driver and awarded cost for the defendant. The court order states the following " The claimant do pay the second defendant's costs to be the subject of detailed assessment in default of agreement, it being ordered that the cost be assessed on the indemnity basis. The Claimant pay the second defendant £10,000.00 on account in respect of their costs within 14 days of the date of this order."
Because the accident was genuine we sought legal advised and appealed to the court of appeal for permission to appeal through a direct access barrister (as dad could not afford the legal costs, I used my work bonus to pay the direct access barrister's set fees)
The permission to appeal was granted on all grounds, but a stay of the court order was not granted. my dad could not afford to pay £10,000 as a lump sum simply because he does not have the money (and does not own a property or have any savings). We therefore offered the defendant to pay a small amount on a monthly basis. the defendant's solicitors said they will get back to us on this but has not done so to date.
today we received a Notice of commencement of assessment of bill of costs, with a very detailed bill of costs the total o which amounts to £47,872.38. the letter says dad must file his dispute or proposal of settlement by 29 Jan 2015. If he fails to do so they will request that the court issues a default cost certificate which could subsequently result in enforcement proceedings to pursue recovery.
My dad is at a completely loss, as he does not know how to draft a dispute and absolutely cannot afford to get legal advice. He has already provided his financial details to the defendant solicitor to show that his outgoings exceed his monthly income and that he has no savings or property or anything. He works as a part time taxi driver (though his doctors has advise him not to work for health reasons, he has to to make ends meet).
Can you please advice us on what we can do. If a we fail to respond and the defendant is granted a default cost certificate, which results in enforcement proceedings, will the court reduced the amount to be paid because of dad's financial circumstances. Also, will the fact that the appeal hearing is to take place before May (the listing window given by the court of appeal) make any difference. Can someone please advice us. We are truly stuck.
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 whether he had litigation insurance ?
Customer:

Hi Alex, thanks so much for agreeing to help with this. The claim proceedings were conducted by a solicitor appointed by the claims management agency who had an ATE insurance - but it would not pay out because of the fraud ruling.

Customer:

the solicitors appointed by the claims management company were working on a no win no fee basis - but following the judgement they ceased to act as the solicitors in this matter.

Customer:

Hi Alex - are you still reviewing my question?

Alex Watts : Have you permission to appeal?
Customer:

yes

Customer:

I can send you the skeleton in respect of the appeal if this would help. we have been granted permission to appeal on all grounds.

Alex Watts : Did you also ask for a stay on costs pending appeal?
Customer:

yes we just mentioned this on the appeal app but this was not granted.

Alex Watts : Ok so as of now there is a live costs order
Customer:

yes - for £10,000

Customer:

and the bill of cost for £47,872.38 in the notice of commencement of assessment of bill of cost

Alex Watts : Ok. Have you had a breakdown of costs?
Customer:

yes, together with a schedule of work

Alex Watts :

Ok. Is there anything on that you disagree with?

Customer:

we don't know whether to agree or disagree because the case was dealt with by our former solicitors

Customer:

We don't know if any cost can be disputed or what grounds to dispute them on

Alex Watts :

Ok. Well you can only dispute on 3 grounds:

Alex Watts :

1) The rate is wrong or too high

Alex Watts :

2) The time spent was too long

Alex Watts :

3) The work done was not needed

Customer:

There seems to be a lot of very long telephone calls and many conferences with counsels - but not sure if these were needed or not. expert reports had to be taken and analysed etc.

Alex Watts :

Indeed. I would try and dispute everything.

Alex Watts :

You will get some leeway bearing in mind you were represented but no longer.

Customer:

Do we simply have to write a letter explaining why we dispute each item?

Alex Watts :

You see the schedule they have provided - you do the same and say why you dispute each item and why

Customer:

What happens after we send the dispute - should we then make representations in court

Alex Watts :

No. What happens then if they dont accept your points of dispute its listed for a costs hearing.

Alex Watts :

Then both sides make their points and a costs officer makes a decision what is and what is not allowed.

Alex Watts :

Generally you can expect to get at least about 25% wiped off

Customer:

my dad can't afford to get a solicitor to visit for the hearing and he does not speak English well. will he have to speak in court - can I speak on his behalf?

Alex Watts :

Well you can go as a McKenzie friend. The court may or may not let you speak

Customer:

will the court consider dad's financial circumstances when making the cost order

Alex Watts :

No

Alex Watts :

That has no bearing whatsoever

Alex Watts :

He can make an application afterwards to pay by installments

Customer:

Will the instalments be based on what he can afford to pay monthly

Customer:

also can he go to a debt management company and go for a IVA or similar option

Alex Watts :

Yes that would be.

Alex Watts :

He can go into a debt management or IVA

Alex Watts :

If he does to debt management I would recommend Step Change, they are a charity

Customer:

Step Change - Thanks for this (I will look into this) at the moment dad's outgoings exceed his income and he has a massive overdraft. everything can be evidenced , is there any way to make an application to court to take this into account?

Alex Watts :

No, not before the costs hearing. Its just not relevant to whether costs are payable,

Alex Watts :

http://www.stepchange.org/

Customer:

Thanks. does that mean these matters can be brought to the courts attention after the costs hearing. Also, I am not sure what them meant by 'enforcing the court order'

Alex Watts :

Ok.

Alex Watts :

Whether you dispute the various items of work has no bearing on ability to pay

Alex Watts :

The Judge has ordered costs, so its just the amount of costs payable.

Alex Watts :

Whether you can pay the costs is not relevant to this procedure

Alex Watts :

That comes after the amount of costs has been decided

Customer:

I think I understand this better now. you have said above that we can apply for payment by instalment after. will we be doing this in at the end of the cost hearing (i.e. after the amount of cost has been decided) or will we then write to the defendants solicitors directly about the method of payment or IVA etc.

Alex Watts :

Yes you can do either or both.

Customer:

just one last question. When we send the letter disputing the cost, do we need to mention the appeal and/or that should the appeal succeed we will look to claim all payments back.

Alex Watts :

No, because that is obvious. If you win the appeal then that includes the costs order too

Customer:

Sorry, just one more question - is there any court process that I must follow to go as my dad's McKenzie friend? That really is my last question.Thank you so very much for your help and advice...I cant tell you how much I appreciate it.

Alex Watts :

No, you just ask for permission on the day

Customer:

Thank you so very much for your help.

Alex Watts :

Can I clarify anything else for you?

Customer:

Not at the moment. I will draft the letter of dispute out and send it to them. Thanks a millions!! :-)

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