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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 » Sat Feb 07, 2015 11:02 pm

CPR 44 PD 9.5 says

(4) The statement of costs must be filed at court and copies of it must be served on any party against whom an order for payment of those costs is intended to be sought as soon as possible and in any event –
(b) for all other hearings, not less than 24 hours before the time fixed for the hearing

Moreover CPR 44 PD 9.6 says

9.6 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

Hence it is the party who did not comply with CPR 44 PD 9.5 i.e. who failed to file and serve a statement of costs who will have to pay for the hearing of the detailed assessment necessary as a result of that failure and it is not necessary the party who loses

And one issue raised by my thread is was it cost-effective in this condition to make an order for costs knowing that the consequence will be that I will have pay for a hearing (the interlocutory hearing) and the other party for another hearing (the assessment hearing)
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Re: Failure to file statement of costs before allocation to

Postby atticus » Sat Feb 07, 2015 11:12 pm

The order has been made. The judge exercised his discretion to do so.

That has happened.

Appeal, if you wish. You misinterpret the PD you keep reciting. The bit you say after the word "hence" simply does not follow.
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Re: Failure to file statement of costs before allocation to

Postby Lurker » Sat Feb 07, 2015 11:30 pm

south1 wrote:Hence it is the party who did not comply with CPR 44 PD 9.5 i.e. who failed to file and serve a statement of costs who will have to pay for the hearing of the detailed assessment necessary as a result of that failure and it is not necessary the party who loses

No, that's not right. That is not the right part of CPR to be looking at. CPR 47.20 is the part to be looking at. CPR 47.20(3)(a) in particular. I think your best bet is a conduct argument: argue that the Defendant's failure to lodge their schedule in time (as is required by CPR 44 PD 9.5 and 9.6) amounts to unreasonable conduct and that that is a good reason for the judge to depart from the usual rule.

I don't think you've much chance of succeeding with the argument. It's a pretty trivial breach, especially as if you'd had their schedule in time you would have ignored it because you thought this was going to be a small claim, so arguably you've suffered no prejudice: even if they had lodged it in time, you would have done the same thing (unless I misunderstand your earlier posts).
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Re: Failure to file statement of costs before allocation to

Postby atticus » Sat Feb 07, 2015 11:34 pm

This would be an interesting argument for someone whose case has been struck out as being (inter alia) an abuse of the process to make.
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Re: Failure to file statement of costs before allocation to

Postby Slartibartfast » Sun Feb 08, 2015 5:59 am

Lurker wrote:I don't think you've much chance of succeeding with the argument. It's a pretty trivial breach, especially as if you'd had their schedule in time you would have ignored it because you thought this was going to be a small claim, so arguably you've suffered no prejudice: even if they had lodged it in time, you would have done the same thing (unless I misunderstand your earlier posts).

Interesting point, I hadn't thought of that but it makes sense. How was the claimant disadvantaged by the defendant's failure to serve costs? Pragmatically, it seems that the claimant is liable either way -

If the claimant says "If I had known their costs were going to be so much, I would've abandoned the claim" then they would still have been liable for costs to that point.

If the claimant says "If I had known their costs were going to be so much, I would've proceeded regardless" then they would still have been liable for costs until the claim was dismissed.

South says that there must now be two further hearings to deal with costs, and this would not have been necessary if the defendants had provided a statement of costs for summary consideration. I think that has some weight, if it is true. My question would be why two further hearings are necessary - surely the defendants can just provide a schedule of their costs by post, and the claimant can just pay it? There would only need to be further hearings if the claimant wanted to dispute the claimed costs.

This is a lay view, not a reading of CPR.
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Re: Failure to file statement of costs before allocation to

Postby atticus » Sun Feb 08, 2015 8:21 am

south1 wrote:Nobody go and see a lawyer to ask him if there will be cost if he issues a small claim.
as a lawyer who has been asked exactly that question on a number of occasions, I can assure the OP he is wrong.
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Re: Failure to file statement of costs before allocation to

Postby south1 » Sun Feb 08, 2015 2:52 pm

1.
‘Lurker’ has put forward a good idea when he says to explain according to CPR 47.20(3)(a) to the Court that the failure to file and serve a statement of costs amounts to unreasonable conduct and that that is a good reason for the judge to depart from the usual rule that the loser has to pay.

However CPR 44 PD 9.5 and 9.6 says that the court has to take into account the failure of a party to serve and file a statement of costs when deciding who will pay for the additional detailed assessment hearing which will take place only because of this failure
Hence I think that it will be good simply to put forward the two arguments to the court this of CPR 47.20(3)(a) and this of CPR 44 PD 9.5 and 9.6

I was misunderstood because I mean the there will one additional hearing i.e. the detailed assessment hearing and not two additional hearings

I was disadvantaged by the fact that the defendant did not file and serve on me a statement of costs because as a consequence there will be an additional hearing for the detailed assessment and maybe I would have to pay for it

Now that I have received the statement of costs of the defendant I notice that there are plenty of reasons why it is excessive. It will be too long to explain all the reasons but one is the unnecessary use of a Counsel. Hence I think that I will oppose this statements of costs because only cost reasonable incurred could be recovered. Therefore there will be an additional hearing and the question is who will pay for it?

2.
I will also try to convince the court that there should not be costs at all because claims intended for the small track are deemed to be suitable for parties who can represent themselves. However the defendant is itself a law firm who has appointed another solicitor and a counsel to represent them even though their representative are a lot more junior than them so they have less experience than them

I can try to convince the other party that in these circumstances to ask for another hearing will not be cost effective because they may have to pay for it himself and there will be maybe not costs awarded at all but I am not sure that this will work
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Re: Failure to file statement of costs before allocation to

Postby Slartibartfast » Sun Feb 08, 2015 6:48 pm

south1 wrote:Now that I have received the statement of costs of the defendant I notice that there are plenty of reasons why it is excessive. It will be too long to explain all the reasons but one is the unnecessary use of a Counsel. Hence I think that I will oppose this statements of costs because only cost reasonable incurred could be recovered. Therefore there will be an additional hearing and the question is who will pay for it?

I suppose you are gambling on whether the Court will agree that the use of a Counsel was unnecessary. If the court agrees, it would be unfair to expect that you paid the costs of the challenge. But if the court thinks that use of Counsel was reasonable, you're piling on more costs. You seem very certain that your opinion is right, but how much more are you prepared to lose?

south1 wrote:I can try to convince the other party that in these circumstances to ask for another hearing will not be cost effective because they may have to pay for it himself and there will be maybe not costs awarded at all but I am not sure that this will work

The defendant is a law firm, represented by another solicitor and a Counsel? They watched you bring a hopeless LiP case which was thrown out at the first hearing? I think it is unlikely that you will be able to persuade them to accept your views about how the costs should now be settled. I think they will believe that they know the law somewhat better than you do. Rightly or wrongly.
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Re: Failure to file statement of costs before allocation to

Postby atticus » Sun Feb 08, 2015 7:18 pm

The OP must remember that there are two parties here, with very different interests. The Court will have to decide how to decide between those interests. The first instance judge has already made his decision on that question, in dismissing the OP's claim and ordering him to pay the costs. I have already pointed out what has to be overcome in persuading an appeal judge to rule that the first judge erred in the exercise of his discretion.
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Re: Failure to file statement of costs before allocation to

Postby Lurker » Sun Feb 08, 2015 11:36 pm

south1 wrote:1.
‘Lurker’ has put forward a good idea when he says to explain according to CPR 47.20(3)(a) to the Court that the failure to file and serve a statement of costs amounts to unreasonable conduct and that that is a good reason for the judge to depart from the usual rule that the loser has to pay.

However CPR 44 PD 9.5 and 9.6 says that the court has to take into account the failure of a party to serve and file a statement of costs when deciding who will pay for the additional detailed assessment hearing which will take place only because of this failure
Hence I think that it will be good simply to put forward the two arguments to the court this of CPR 47.20(3)(a) and this of CPR 44 PD 9.5 and 9.6

I was misunderstood because I mean the there will one additional hearing i.e. the detailed assessment hearing and not two additional hearings

I was disadvantaged by the fact that the defendant did not file and serve on me a statement of costs because as a consequence there will be an additional hearing for the detailed assessment and maybe I would have to pay for it

Now that I have received the statement of costs of the defendant I notice that there are plenty of reasons why it is excessive. It will be too long to explain all the reasons but one is the unnecessary use of a Counsel. Hence I think that I will oppose this statements of costs because only cost reasonable incurred could be recovered. Therefore there will be an additional hearing and the question is who will pay for it?


Oh, I see what you mean now. You mean if they'd sent you the schedule, and if there'd been a schedule there at the hearing, the costs could have been summarily assessed, and so the costs of the detailed assessment could have been avoided.

That might work to get rid of the costs of the detailed assessment hearing itself (because it was only needed due to the Defendant's failure to comply with CPR 44 PD 9.5). That's a decent argument, actually.

It won't work to get the costs of the main action reduced, though, or the hearing where they used Counsel.

south1 wrote:2.
I will also try to convince the court that there should not be costs at all because claims intended for the small track are deemed to be suitable for parties who can represent themselves. However the defendant is itself a law firm who has appointed another solicitor and a counsel to represent them even though their representative are a lot more junior than them so they have less experience than them

I can try to convince the other party that in these circumstances to ask for another hearing will not be cost effective because they may have to pay for it himself and there will be maybe not costs awarded at all but I am not sure that this will work


I think that all depends on how much the main action cost them and how much the DA will cost them.
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