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Buachaill, Barrister
Category: Law
Satisfied Customers: 10979
Experience:  Barrister 17 years experience
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Upon my divorce my former in laws filed a claim against me

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Upon my divorce my former in laws filed a claim against me and my former husband (their son) for £32,000 (£25,000 plus interest) in March 2013 for monies they had loaned my husbands business.

I filed a defence, and represented myself and the directions case was heard in June 2013. My ex did not turn up and an order for £22,00 was made against him.

I adhered to the courts directions, filing a full disclosure in July 2013 and my statement in August 2013. My inlaws and/or their solicitor failed to file disclosure or statements. Their solicitor failed to correspond with me, despite me asking for the documents.
I asked my solicitor to write a letter on my behalf (he was not fully instructed, I was trying to keep costs down) and we offered to discontinue. But again, no response.

The final hearing was listed for November 2013. As the respondents would not communicate with either myself or my solicitor, I decided to instruct him in the run up to the case. The respondents failed to file a court bundle, so my solicitor advised that I book a barrister to aid in getting the case thrown out of court...and also to assist in obtaining my costs, in particular my costs as litigant in person.

The day before the hearing my solicitor received a Discontinuation notice. However he realised it was defective. He emailed the respondents solicitor back, asking them to send the correct notice, and said that I would be attending court with counsel to have the costs heard.

Anyway, no correct Discontinuation Notice was received. i attended court (the respondent/solicitor did not) and my costs were summarily assessed, and I received full costs to the amount of £7300, payable within 14 days. Unfortunately the court typed the order incorrectly and an Order was sent out for £1300, which the respondents settled. My solicitor had to apply by the Slip Rule (?) to have it corrected and asked for the £6000 balance to be paid immediately.

Now the respondents solicitors have indemnified their clients (I think there is a case of negligence here) and have said they will pay costs. But on being pushed for payment they are now questioning the costs as of course they filed a discontinuation. They are saying they never received an email to say the notice was defective. They have sent server records to illustrate incoming mail on the day in question. My solicitor is now saying it seems he was given an incorrect email address to reply, and the email may not have been received by the respondents solicitor after all.

The respondents have now filed an application with the court this week, they want my costs to be set aside and put forward for a detailed assessment. I am not sure why, wether they disagree with my Litigant in Person costs (Im self employed) or wether they feel it was not necessary to attend with a barrister. I am aware if a discontinuation notice is filed. Costs can only be awarded up to that point. The issue is, I had to book my barrister a week in advance, and would have been responsible for his bill wether he attended court or not.

It is true my costs are high, but the other side have allowed us to rack up these costs, by preparing the defence, our own court bundle and by instructing a barrister, whilst they did nothing not even preparing in any way for court.

This is my situation now. I have an oder for £6000 (balance) against the respondents. Their solicitor says they have indemnified the respondents. My solicitor says he needs another £1000-1500 to go back to court to defend our position. He also says that if I lose, I will be responsible for his costs and the respondents solicitors costs. I fail to see how this is fair, or correct. I went to court as advised by him. I trusted him to take care of my affairs. I feel I am facing these costs because he has failed to send an email. I think it is negligent and I fail to see how the responsibility for funding his incompetence boils down to me. I am considering wether it is worth it. My litigant in person costs are only £2000, it would be crazy to spend almost the same and open myself to the risk of having my costs reduced in some form. I just dont know what to do. Do I have an issue with my solicitor? I know we were entitled to attend court anyway to have our costs heard. Should he be indemnifying me for his costly admin error?

Buachaill :

1. I would advise you to get a new solicitor to represent you at this hearing next week. The solicitor who is representing you has a clear conflict of interest between his own position and yours. He realises, which you don't, that you have a case in negligence against him if you loose this application. Accordingly, he is quoting you a prohibitively high amount of costs to go back into court to make your position clear and to defend this application. His own wish is that you don't go ahead as this will mean he won't be liable, which on the facts seems the most likely outcome. So you need to get alternative legal representation for this application. Basically, the solicitors on both sides have been negligent here and what both sides want is that the client(s) including you bear some of the losses incurred. So you need to resist that. Get an alternative solicitor to take up the file from this solicitor and give an undertaking as to costs to your existing solicitor. This new solicitor will have to put your old solicitor on notice that a claim might potentially be made against him should the application be lost. However, you would be very foolish to use your existing solicitor for this application. The other option is to represent yourself in this application, as you have done previously. Then, depending on the outcome, you will either have the 6k paid in costs or you will have a claim against your solicitor.

Buachaill :

2. You need to realise that your existing solicitor is attempting to scaremonger you on the issue of costs so you don't go to court. This is because he bears the liability if you loose.

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