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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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I have a question about costs in a small claims action. Some

Customer Question

I have a question about costs in a small claims action. Some months ago I took a small claims action against a small drainage company as first defendant and an individual who ran the company as second defendant for some faulty work his company did on my drains. I followed the claim process carefully and made sure I sent all letters and court papers to both the company and the individual by recorded delivery. I didn't get any replies at all from either defendant though I had evidence that the papers had definitely been received by the company. In due course because neither defendant responded I got judgement in my favour and a warrant was issued and I started the process to enforce this against the individual 2nd defendant (during the process he had declared the company insolvent so there was no point pursuing the company…) Once the bailiff started visiting him, I finally heard from the 2nd defendant in the form of court papers saying that he was appealing to the court to set aside the judgement and the warrant on the basis that my contract was with the (now insolvent) company, not the 2nd defendant. He was using a solicitor and had prepared a witness statement in which he said he had never received my court papers but elsewhere said that he had seen papers sent to the company (he was one of only 2 directors of the company, his wife being the other director) but hadn't understood that he was being named as a defendant, hadn't understood the consequences of not doing anything and therefore please could the court be merciful and let him off etc etc. He also argued that although he didn't read the papers properly he should be awarded his costs too for this application to set aside. The case is being held on Monday 21st September ie this Monday. Last week I decided to cut my losses and wrote to the court saying that I've decided to drop this matter not because I agree with him but because I don't think I have any realistic prospect of getting my money and I don't want to waste the courts time. I also sent the court copies of all the emails, letters and recorded delivery receipts showing the extensive efforts I had made to contact both the company and the 2nd Defendant before and during the small claim case and pointed out that the court papers state very clearly the consequences of not doing anything, that even if he didn't receive the papers sent to his usual address, he definitely received the ones sent to the company and that it was incumbent on him both as a director and as an individual to have properly read the papers ands acted on them. I said that had he just taken the trouble to not ignore the court papers and send some sort of a response this part of the case could all have been sorted out at the very outset and that therefore although I was agreeable to the claim against him and the warrant being struck out I felt he should definitely not be awarded any costs. I also copied all this to his solicitor - a week ago. Today Saturday I got a thick letter from the 2nd Defendant's solicitor setting out a schedule of costs and saying their costs are over £2000!!!!!! I think the solicitor has deliberately made sure I only got this letter today so I won't have time to get legal advice before Monday. But my basic question is, is it possible that the court could order me to pay the 2nd defendant's costs for this application? It seems so unfair. I have already made it clear I am willing to discontinue and I don't think it is right that I should have to pay his costs for his application which he has only had to make because he never bothered to read the earlier court papers properly. Will the letter I sent to the court last week be seen by the judge on Monday and will it be taken into consideration? Or do I have to go to the court on Monday in person to present my case? I thought there was a rule that you can't claim solicitor's fees whether you win or lose a small claims case in order to encourage people to keep it informal. Is that right?
Submitted: 1 year ago.
Category: Law
Expert:  Ash replied 1 year ago.
Hello my name is ***** ***** I will help you,
What is the listing for please?
Customer: replied 1 year ago.

I don't understand your question. I got a judgement against both defendants and the 2nd defendant is now applying to have the judgement against him struck out

Expert:  Ash replied 1 year ago.
Set aside or struck out? Was the matter ever actually allocated to the small claim track?
Customer: replied 1 year ago.

can we speak on the phone after all, it would be easier? How do we do this?

Expert:  Ash replied 1 year ago.
Yes, if you can accept the additional offer.
Alex
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience: Solicitor with 5+ years experience
Ash and other Law Specialists are ready to help you
Customer: replied 1 year ago.

The original matter was never actually allocated as the defendants never responded so I just waited until the deadline and then applied for a judgement in my favour. The notice of hearing of application says that it is still in The County Court Business Centre and it still has the original small claims case reference no, the applicant is asking the court for an order to set aside the judgement, to set aside the warrant and for my claim against the 12nd defendant to be struck out.

Expert:  Ash replied 1 year ago.
It was Judgment in default. To answer your question can they apply to set aside and ask for costs - yes they can.
Are they likely to get costs - probably not, but costs are the discretion of the Judge. The matter was not allocated to trial (ie if defended) so you do not have small claims costs protection at this stage.
Does that clarify?
Alex
Expert:  Ash replied 1 year ago.
Do you have a number?
Customer: replied 1 year ago.

01491 642 837

Expert:  Ash replied 1 year ago.
ok
Customer: replied 1 year ago.

Here is the letter I wrote to the court last Monday. I sent it to the court manager and to the defendant's solicitor.

Attachment: 2015-09-19_123903_letter_to_court_re_ad.docx

It isn't an official application to set aside, just a letter from me - does that make a difference?

I am in a difficult position re attending in person - unfortunately my mother is very ill in Northern Ireland, and has deteriorated this week and we have been told she doesn't have very long and frankly although I balk at the idea of this defendant possibly being awarded costs because I am not there tomorrow, I don't want to delay flying to Ireland tomorrow to see her. It would be a weight off my mind if I thought that I have more chance of him not being awarded costs than him being awarded costs! Is there anything else I can do other than appearing in person to try to achieve a decision in my favour - can I send someone else on my behalf or is it too late to appoint a representative now?

Expert:  Ash replied 1 year ago.
yes that is fine, so should be ok.
Alex
Customer: replied 1 year ago.

I have one final question - you mentioned that I did not have small claims protection? What is that? Would I have had that if the 2nsd defendant had filed an acknowledgement of service? Or only if he filed a defence? Once one has small claims protection is it possible to lose it later and if so how? Would I have been better off and more protected if he had actually replied to the case papers?

Expert:  Ash replied 1 year ago.
You only get small claims protection once it has been Allocated as a small claim. That happens after they file a defence and it's then allocated.
Does that clarify?
Alex
Expert:  Ash replied 1 year 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

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