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Failure to file statement of costs before allocation to trac

Re: Failure to file statement of costs before allocation to

Postby south1 » Mon Feb 09, 2015 1:19 pm

CPR PD 44 .9.6 says

“ The failure by a party, without reasonable excuse, to comply with paragraph 9.5 will be taken into account by the court in deciding what order to make about the costs of the claim, hearing or application, and about the costs of any further hearing or detailed assessment hearing that may be necessary as a result of that failure”

‘Atticus’ replies to this by saying

“If the other party had served a statement of costs, the judge would have made a summary assessment of the costs southy would have to pay. But they did not. The judge ordered a detailed assessment, which he would not have done had a costs statement been served.

Ergo, it seems to me, the judge must have taken account of the failure to serve a statement of costs.”
However if there was no statement of costs available the judge if he wanted to award costs nevertheless had no choice but to order for a detailed assessment and CPR PD 44 .9.6 is not necessary to compel him to do it.

Hence I wonder if what CPR PD 44 .9.6 means by

“ The failure by a party, without reasonable excuse, to comply with paragraph 9.5 will be taken into account by the court in deciding what order to make about the costs of the claim”

that the judge has to take into account the failure of the defendant to have filed and served a statement of cost when deciding the amount of the costs awarded and whether not there should be cost all.
For example this can means that the judge should take into account if it is cost effective to award cost specially in my case where the fact that there will be a detailed assessment hearing means that I would have to pay for the cost of the interlocutory hearing but that the defendant should have to pay also for the cost of the additional hearing of the detailed assessment.
Maybe the judge should have also taken into account that it was a case intended for the small track for which there is no cost. Especially that the defendants could have represented themselves without the need of another firm of solicitors because they are themselves solicitors. Moreover one of the defendant is himself an unregistered counsel so how can have he needed another counsel to represent him.

In these circumstances according to CPR PD 44 .9.6 the judge should have awarded no cost at all specially that CPR 46.13 (3) says

(3) Where the court is assessing costs on the standard basis of a claim which concluded without being allocated to a track, it may restrict those costs to costs that would have been allowed on the track to which the claim would have been allocated if allocation had taken place
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Re: Failure to file statement of costs before allocation to

Postby atticus » Mon Feb 09, 2015 2:16 pm

As far as I can tell, this has all been discussed. I read the above post as some form of "thinking out loud" by the OP, possibly preparing his argument for his appeal.

Perhaps it might assist him to understand that where the rules require there to be a specific consequence following a specified action or inaction, they spell this out clearly. The use of words such as "may" and "Will be taken into account" indicate that the judge is being given flexibility in the decision he makes. I think the OP may be misunderstanding these words and phrases. They are not words that make the outcome he prefers (or indeed any outcome) mandatory.

"May" leaves open the possibility of "but does not have to".

When something is to be taken into account, there are usually other things that the judge will have to weigh up as well.
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Re: Failure to file statement of costs before allocation to

Postby south1 » Wed Feb 11, 2015 4:17 pm

Small claims are often issued by people on low income who do not have the mean to pay legal costs who have issued the claim because they thought that there will be no costs. They are often litigants in person who do not have the means to pay a lawyer. Does it make sense in these circumstances to award costs?

It is possible that the judge does not like my claim or/and does not like litigants in person and want to punish me by awarded costs against me. However this should not be criteria for awarding costs

Moreover a detailed assessment of costs is disproportionate for a small claim specially that the decision of the detailed assessment hearing could be appealed against. And as a consequence there could be more one additional hearing which will have to be paid for
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Re: Failure to file statement of costs before allocation to

Postby Lurker » Thu Feb 12, 2015 12:09 am

south1 wrote:Small claims are often issued by people on low income who do not have the mean to pay legal costs who have issued the claim because they thought that there will be no costs.

Then they think wrongly. They are either badly advised or have not done enough research. If you can't afford to pay your opponent's costs, think twice about issuing proceedings. Yes, there's a chilling effect, but under the principles of English and Welsh law it's better that a dozen guilty Defendants go free than one innocent Defendant be wrongly punished by the state.

south1 wrote:They are often litigants in person who do not have the means to pay a lawyer.

Being a LIP and not having money to pay a lawyer are two separate things.

south1 wrote:Does it make sense in these circumstances to award costs?

Yes. Why should someone, anyone, be able to indulge in risk-free litigation? Actions have consequences. If people below a certain income threshold never had to pay any adverse costs, ever, then there would be nothing to stop them indulging in utterly frivolous litigation, to the detriment of both the Court system as a whole and anyone they decided to attack.

south1 wrote:It is possible that the judge does not like my claim or/and does not like litigants in person and want to punish me by awarded costs against me.

You can be confident that won't happen. Judges in this country do not make decisions based on personal preference, and they bend over backwards to assist LIPs.

south1 wrote:However this should not be criteria for awarding costs

Correct, and it won't be. The criteria used will be the ones in CPR and relevant case law.

south1 wrote:Moreover a detailed assessment of costs is disproportionate

That word ("disproportionate") has a specific meaning in terms of legal costs: be careful of using it when you don't understand the meaning it has.

south1 wrote:for a small claim

Again, that term has a specific meaning. It's only a "small claim" if it's allocated to the small claims track. This one wasn't, so it isn't.

south1 wrote:specially that the decision of the detailed assessment hearing could be appealed against.

You could appeal against the decision of the DA, the same way you could appeal any other court decision. You'd need good reasons to appeal though: you can't just appeal because you don't like the outcome. That's not the way it works.

south1 wrote:And as a consequence there could be more one additional hearing which will have to be paid for

But that'd be as a result of your appeal, so there would only be another hearing if you appealed, and if the appeal wasn't upheld you would be responsible for the costs of that hearing.
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Re: Failure to file statement of costs before allocation to

Postby Denning » Thu Feb 12, 2015 1:06 am

Lurker wrote:
south1 wrote:Small claims are often issued by people on low income who do not have the mean to pay legal costs who have issued the claim because they thought that there will be no costs.

Then they think wrongly. They are either badly advised or have not done enough research. If you can't afford to pay your opponent's costs, think twice about issuing proceedings. Yes, there's a chilling effect, but under the principles of English and Welsh law it's better that a dozen guilty Defendants go free than one innocent Defendant be wrongly punished by the state.

Such type of injustice should no longer be acceptable in the 21st century. There must be modernisation in the judiciary to strive towards achieving zero tolerance for error.
Lurker wrote:
south1 wrote:Does it make sense in these circumstances to award costs?

Yes. Why should someone, anyone, be able to indulge in risk-free litigation? Actions have consequences. If people below a certain income threshold never had to pay any adverse costs, ever, then there would be nothing to stop them indulging in utterly frivolous litigation, to the detriment of both the Court system as a whole and anyone they decided to attack.

This is a fundamental rule of corruption known to many lawyers which is employed to frustrate LiP. Why is the rule not absolute here that a case not allocated is deemed a multitrack? The first sentence on page 2 of Form 201 is as follows:
The multi-track is the track for claims which are neither small claims nor cases which are allocated to the fast track.

Lurker wrote:
south1 wrote:It is possible that the judge does not like my claim or/and does not like litigants in person and want to punish me by awarded costs against me.

You can be confident that won't happen. Judges in this country do not make decisions based on personal preference, and they bend over backwards to assist LIPs.

Majority of the judges I have encountered dealing with LiP make decision based on their personal preference. Many of them are plainly corrupt because they know that the LiP would most likely than not be refused permission to appeal ("PTA"). PTA is a fundamental corruption tool used by the judicial office holders for systemic manipulation and enslavement.
Lurker wrote:
south1 wrote:However this should not be criteria for awarding costs

Correct, and it won't be. The criteria used will be the ones in CPR and relevant case law.

Again most of the cases I have attended involving LiP the judges appeared to have litlle or no knowledge on the CPR or guidelines. They simply have the knowledge that they have wide discretion to award costs. The lawyers were never helpful to tell the judges they were not correct because they were there to fight for victory at all costs for their clients contrary to the rules upon which they were made lawyers.
Lurker wrote:
south1 wrote:Moreover a detailed assessment of costs is disproportionate

That word ("disproportionate") has a specific meaning in terms of legal costs: be careful of using it when you don't understand the meaning it has.

Its not helpful to mystify it. Awarding cost of £6,000 for a claim of £300 is disproportionate in any way you look at it. That is the trend in many county courts I have experienced and those brought to my knowledge in which I have seen the papers against LiPs.
Lurker wrote:
south1 wrote:for a small claim

Again, that term has a specific meaning. It's only a "small claim" if it's allocated to the small claims track. This one wasn't, so it isn't.

As I said earlier this is a fundamental rule of corruption. There must be absolute rule that a claim not allocated must be deemed a multi-track.
Lurker wrote:
south1 wrote:And as a consequence there could be more one additional hearing which will have to be paid for

But that'd be as a result of your appeal, so there would only be another hearing if you appealed, and if the appeal wasn't upheld you would be responsible for the costs of that hearing.

There should be no discrimination in the award of costs whether someone is legally represented or not. The system where a judge is there to protect only the legal profession and the lawyers there to protect the judges should be discontinued. Anyone using a lawyer should pay the services of the lawyer just like the services of accountant without the court being involved. Every specialist, including lawyers, be regarded as expert. There is already provision for expert witness which should be applicable for any lawyer.
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Re: Failure to file statement of costs before allocation to

Postby atticus » Thu Feb 12, 2015 8:09 am

A case is only a small claims case, to which small claims track rules apply, when it is allocated to the Small Claims Track.

Parts 26 and 27 of the CPR give details of certain types of case which, even if they have a value less than£10,000, will not ordinarily be allocated to the Small Claims Track. The OP has indicated that his claim was against a solicitor. We do not know the details, but it is easy to see that one or more of the factors to which I have referred may be present.

Contrary to the OP's apparent thinking, there is no automatic right to bring a case claiming under £10,000, put the Defendant to considerable trouble and expense, and not pay for it if you lose.
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Re: Failure to file statement of costs before allocation to

Postby atticus » Thu Feb 12, 2015 8:11 am

And as for Den ...
Last edited by atticus on Sun Feb 22, 2015 8:56 pm, edited 1 time in total.
Reason: Keep thingy happy
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Re: Failure to file statement of costs before allocation to

Postby south1 » Thu Feb 12, 2015 2:49 pm

So why the court has sent me a form called “N149 Directions Questionnaire (Small Claims Track) if there is no certainty at all that my claim will be really allocated to the small claims track?
What is very misleading and could have serious financial consequence because the earlier we know in which track our claim will be allocated the earlier we can discontinue it if necessary and save the more costs possible
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Re: Failure to file statement of costs before allocation to

Postby atticus » Thu Feb 12, 2015 2:50 pm

Because that is what the bureaucracy does. Sending out a form is not a judicial action.

Would you have discontinued if sent another form?
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Re: Failure to file statement of costs before allocation to

Postby Denning » Thu Feb 12, 2015 2:53 pm

There is a good reason why that "rule of fundamental corruption" used by many lawyers and supported by many "cow boys" judges to exploit LiPs must be abrogated. If a case is not given a track and the cost not subject to costs limitation then the appeal right should go to the Court of Appeal. It is unfair to award costs applicable to cases tried on multi-track and not allowed the route of appeal applicable to multi-track. All appeal of multi-track is to the Court of Appeal therin lies the distinction.

Whenever a claim is defended the court is under a duty to allocate the claim to one of the case management tracks pursuant to CPR26.1(b): “the allocation of defended cases to case management tracks.”

Lord Justice Brooke in Tanfern Ltd. v Cameron-Macdonald & Anor [2000] EWCA Civ 3023:
46. …Orders relating to final decisions of a lower court must also make it clear whether the order was made in the small claims track, the fast track or the multi-track…


Lord Justice Jackson’s paper for the Civil Justice Council conference on 21st March 2014 stated:
4.3 Proportionality trumps necessity. The Final Report recommended that the effect of the Court of Appeal’s decision in Lownds v Home Office [2002] EWCA Civ 365; [2002] 1 WLR 2450 should be reversed. Rule 44.3 (2) achieves this by providing that in an assessment on the standard basis: “the court will … only allow costs which are proportionate to the matter in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred.”
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