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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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I had a case allocated track/small claim compensation.

Resolved Question:

I had a case allocated for fast track/small claim compensation. The claimant made an application for the case to be struck off. Does it automatically remove the case from the small claim to another track that there is no limit to legal fees charges?
In short the hearing for the application is no more considered small claim and it is not the continuation and part of the original case?
Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.
Hello my name is ***** ***** I will help you with this.
Just to be clear, has it been allocated to the small claims already?
Customer: replied 2 years ago.

Hello

it was originally allocated to small claims track .But after a month and after i filed my defense the claimant made an application for the striking out the case. In the same application they have also applied for "an order that there be stay of both the claims and counter claim pending determination of the issues referred to FTT.

My questions is the hearing for this application is part of the small track or not?

Expert:  Ash replied 2 years ago.
Yes it is allocated. Therefore even if you lose the strike out the costs are limited to your Court fees.
Can I clarify anything for you about this today please?
Alex
Customer: replied 2 years ago.

The judge does not seem to think so. on the first hearing for this application, the judge awarded £15000.00 cost and issued and order for me to pay, while their charges on their claim form was about £3000.00

I have asked to set aside the judgement. The hearing is tomorrow. is there a law i can refer to tomorrow to indicate that this should still to be treated as small claim and the legal fess should be limited.

Expert:  Ash replied 2 years ago.
Its civil procedure rules 26.
The costs are only payable if it is later allocated. It can be struck out on a small claim but the costs are limited to: £175 under rule 45.4 where your case is struck out.
Does that help?
Alex
Customer: replied 2 years ago.

What is the maximum of the legal fees for the small track?

can i find this rule "civil procedure rules 26" if I google it?

Expert:  Ash replied 2 years ago.
Yes you can find CPR 26.
Maximum legal fees is ONLY if you have behaved unreasomably. If it was struck out its £175 max claimed as per CPR 45.4
Alex
Customer: replied 2 years ago.

sorry I do not understand, they have been granted for the case to be struck out and they have claimed I had behaved unreasonably, because i had not sent a doctor letter for my illness on the day of the court.

but why have i been charged 15000, if it should be maximum 175.00 legal fees.

The judge awarded Counsel's fees and the claimant's legal fees, relying on the counsel statement that my defense and counter claim was unreasonable and they had to spent time reading it and working on it.

Expert:  Ash replied 2 years ago.
If your case is struck out it should only be £175 as per the rules.
Does that help?
Alex
Customer: replied 2 years ago.

the judge at the time said in his decision, that what he was going to do was that to reduce the claimant legal fees from £23000, to £15000 as they had to do work and we have to pay it within 28 days, but his Order that the defense and counter claim to be struck out remain. he said that he had to decide if the costs are claimed on indemnity basis, are they nevertheless proportionate.....

1- So still you believe because he struck out the case, the cost should have been £175.00 regardless what was the legal costs on the original claim of around £3000?

2-So is it better for me not to argue against the strucking out the case if I do not want to pay the legal fees?

Expert:  Ash replied 2 years ago.
1) Yes. The rules are clear.
2) I would argue against it.
Does that help?
Alex
Ash and 3 other Law Specialists are ready to help you
Customer: replied 2 years ago.

Sorry my last question is if I argue against it, then wouldn't that bring their legal costs to light like as you said if it is struck out i do not have to pay any legal costs apart from £175.00 but if I win the argument then I have to fight for the legal fees if I do not win my case.

Customer: replied 2 years ago.

could I also ask, if I argued against it and won the argument for the case not to be strike out, will the case goes back to where it was, as if I didn't argue, the striking out of the case, the matter is finished and as far as you believe, I should not pay a penny more than £175.00

Is this the case even if I was not present at the hearing when the judge ordered the case to be struck out?

Please ignore the other question.

Expert:  Ash replied 2 years ago.
1) if you do not win then all you should have to pay is £175 if it was struck out only.
2) If you lose at trial then there are NO costs to pay.
Does that clarify?
Alex
Customer: replied 2 years ago.

Yes Thank you

Customer: replied 2 years ago.

Sorry forgot to ask if the claimant, claiming their costs on an indemnity basis, using our lease, does it not override the CPR 26 & 45.4 rule?

Expert:  Ash replied 2 years ago.
No, as the court can't award it under the contract.
Alex
Customer: replied 2 years ago.

But apparently the court has, considering the provisions of CPR44.5 (amount of costs where costs payable under a contract)

Expert:  Ash replied 2 years ago.
But this is a small claim.
Alex
Customer: replied 2 years ago.

so ok, I should say CPR rules do not apply to small claim?

however you did mention the CPR 26 & 45.4, last night, that I can use it.

Expert:  Ash replied 2 years ago.
Yes. As a small claim the judge can waive the rules. But the costs rules are the costs rules and he can't go behind that.
Alex
Customer: replied 2 years ago.

and the cost rules are CPR 45.4? RIGHT

Expert:  Ash replied 2 years ago.
Yea there are several costs rules.
But in particular strike out costs are fixed.
Alex
Expert:  Ash replied 2 years ago.
Hi
I am just following up to see if there is anything else I can help with?
If you have not done so already might I ask you to rate my answer before you go today please, the button should be at the bottom of the screen.
If you need more help please click reply.
Alex
Customer: replied 2 years ago.

Hello Alex

Sorry to have not rated you, just wanted to come back on the same thread, so I wouldn't need to explain all. I had asked to set aside a judgement for the orders of striking out my counter claim and the £15000.00 cost. At my hearing :

1- The order of the striking out the counter claim stayed, as the judge convinced me to drop it as he thought there was no cause for action.

2- there was a lot of argument from the Counsel about the cost and about the contractual right to receive cost. Although I did say I thought, our lease or my contract would not override CPR 26 & CPR 45.4, as they are clear about the costs.

The rule 27.14 2G & 44.5 was what they based their argument on.

There was another hearing set for this.

What do you think about these rules, specially CPR 27.14 2G in page 876?

Customer: replied 2 years ago.

Any chance of answer?

Expert:  Ash replied 2 years ago.
Sorry I did not see this. They can't get away from fixed costs. They are set out in the rules.
Alex
Customer: replied 1 year ago.

Sorry, could you read my question again as you haven't answered my question.

Expert:  Ash replied 1 year ago.
such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably;
This is intended for someone who has not behaved reasonably, ie they have broken court orders or have a hopeless claim etc. However if the claim is hopeless the other side should apply to strike out and then and only then be entitled to costs as per the Fixed Costs rules.
Does that clarify?
Alex
Customer: replied 1 year ago.

Yes the claimant counsel has argued that I had behaved unreasonably and that I had a hopeless claim. The new judge had all the paper work and all my letters to the court and telephone calls I made to the court that it was indeed not me behaving unreasonably.

But the claimant said that I should have made them aware of my communications to the court. I didn't because I did not think asking the court about setting aside a case and inquiring about it was something that I should have made them aware.

Is that considered behaved unreasonably?

Also the judge also thought my case was not good enough to claim for compensation for damages so basically did think my counter claim was hopeless.

The other side had applied for striking out and it was stuck out.

If the judge decides I have not behaved unreasonably, then apparently, they can claim it under CPR 44.5, which does allow costs under contract.

How can I argue this as it seems they can claim it and there is nothing in CPR 26, to say they cannot apply this rule. CPR 44.3 seem to allow costs on indemnity basis. Is there any rule to state that these rules cannot override CPR 26?

Expert:  Ash replied 1 year ago.
Rules can override each other. But the most important one is cpr 1 - the overriding objective. In the interests of justice etc
Alex
Customer: replied 1 year ago.

I did not get a answer to my question but i am going to close this and open a new question. it does not give me the option to rate.