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Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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I recently filed a Discontinuance Notice in a claim ( for

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I recently filed a Discontinuance Notice in a claim ( for £250 ) with the Court and the Defendant, before allocation questionnaires had been issued. The next day I asked for the Notice to be ignored as new information had come to light. The Defendant wrote to the Court and to me to say that it was not possible for the Notice to be ignored and proceedings were therefore at an end. A week later the Court served papers on the Defendant, who then lodged an application to strike the claim out. The Court set a date for the hearing of that application.  At the hearing the Court refused to allow me to state my claim ( which I think is very strong ) saying it had been discontinued, and then heard the Defendant's application and awarded costs of £3,000 against me !!! This appears to be a Court error and it's certainly unfair on me to pay for that. What do I do now ? Appeal ? Make an application under 3.10 ? Lodge a complaint and claim against the Court ?  Ask for Discontinuance Notice to be set aside and resurrect the claim ? Something else ?

Hello my name is ***** ***** I will help you.
On what legal basis do you propose to set aside the discontinuance?
Customer: replied 2 years ago.

Hi Alex. Setting aside the Discontinuation was just an idea. Having read CPR 38 it's not viable. It also appears that everything since I filed the Discontinuation is either an abuse of process or an error of procedure. So I think I'm left with :

- appeal

- application under 3.10

- complaint and claim against court ( I don't even know if this is possible )

to avoid costs, and file a new claim with court for the original amount.

Any thoughts ?

Sadly when you file a notice of discontinuance only D can apply to set it aside. But you need a ground in order to apply under CPR 3.10. You cant apply to set aside as you were at the hearing.
Your only option is to appeal. There is no other legal option. But if you discontinue then the rules say that you are liable for the other sides costs.
Can I clarify anything for you about this today please?
Customer: replied 2 years ago.

I agree that I am liable for D's costs up to Discontinuation. These were £700. What I have also been lumbered with are D's costs AFTER discontinuation, which amount to £2,000. It is these I feel are unjust.

The court should not have served allocation papers after discontinuation, D should not have lodged an application to strike out and the court should not have listed the hearing of D's application surely ?

At the hearing I was told that my grounds for claim could not be heard as the claim had been discontinued, yet at the same time I am somehow liable for D's costs after discontinuation !

Surely this is a travesty ?

I agree, if the case was discontinued then it had ended, unless D applied to set aside discontinuance.
Your ground is you are not liable for strike out costs.
Customer: replied 2 years ago.

Thank you. To summarise, I should appeal against costs after discontinuation. Are the grounds error in procedure ( issue of allocation documents ), abuse of process ( filing of application to strike out by D ), error in procedure ( listing of D's application for hearing ) ? Or something else ?

Correct, its an error.
Does that help?
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