@Pauly436, you can go one better...
You can still ask the court to award you costs, even though the claim was discontinued before the hearing. Normally, in the small claims track each side pays their own costs, but there is an exception in the rules. Rule 27.14(2)(g) says that if a party behaves unreasonably, the court can order them to pay the other side’s costs.
Here the claimant issued a defective claim that never complied with CPR 16.4 because it did not properly set out a cause of action. They then failed to serve any witness evidence in line with the court’s directions, even though they paid the hearing fee and kept the case going until just twenty-four hours before the hearing. At that point they filed a notice of discontinuance. That sequence of events meant you had to spend time and effort dealing with the claim—researching the rules, preparing a defence, responding to the court, and chasing to find out what was happening—only for the claimant to abandon the case at the last possible moment.
That is conduct which has no reasonable explanation, and case law says that is what counts as “unreasonable”. Because of that, you can now ask the court to order the claimant to pay you for the time you have wasted. As a litigant in person you can claim at the guideline rate of £19 an hour for the hours you have genuinely spent dealing with the case, together with modest expenses like printing and postage. If the court insists that you make a formal application, the application fee can also be claimed back.
So although there was no hearing and no travel or loss of work to claim, you are entitled to ask for your wasted time and effort to be compensated, because the claimant pursued a defective case and only dropped it on the eve of trial.
You can write a short, formal email to the court (FAO: Court Manager/Listing, quoting the claim number and parties) asking that, notwithstanding the N279, the file be placed before a judge for a paper determination of the defendant’s costs under CPR 27.14(2)(g). Attach a brief statement explaining the late discontinuance, the defective pleadings and lack of witness evidence, and an itemised litigant-in-person costs schedule (hours at £19/hour plus modest disbursements). Copy Moorside Legal and say you have done so.
Courts often will either deal with that on the papers or reply directing you to issue an N244. There is no extra fee if the judge considers it on the papers; the N244 route carries a fee, which you should then ask to be added to any costs order. Act promptly after the N279 so the file is still “live” administratively. If the judge declines to act of their own initiative (CPR 3.3), they will usually tell you to make a formal application—at which point you file the N244 in the same terms.
You can send the following to the court manager and make sure you CC in Moorside Legal:
Subject: Claim [Claim Number] – Request for Costs Assessment Following Discontinuance
Dear Court Manager,
I write in respect of claim [Claimant] v [Defendant], claim number [xxxx]. The Claimant filed a Notice of Discontinuance (N279) on [date], approximately 24 hours before the listed hearing on [hearing date].
Throughout the proceedings the Claimant maintained particulars of claim that did not comply with CPR 16.4(1)(a) and failed to serve any witness statement in accordance with the court’s directions. The Defendant was therefore denied a fair opportunity to respond to a properly pleaded case. The Claimant nevertheless paid the trial fee and allowed the matter to proceed to the eve of the hearing before discontinuing.
This conduct has put the Defendant to considerable time and expense in researching the law, preparing the defence, responding to the defective pleadings, and chasing the court for updates. It is respectfully submitted that this amounts to unreasonable behaviour within the meaning of CPR 27.14(2)(g) and the authorities, in particular Dammermann v Lanyon Bowdler [2017] EWCA Civ 269.
The Defendant therefore invites the court to place the file before a judge for a summary determination of costs under CPR 27.14(2)(g). An itemised schedule of time and disbursements is attached, together with a short supporting statement.
The Claimant’s representatives, Moorside Legal, have been copied into this correspondence.
Yours faithfully,
[Defendant’s name]
You would need to include the following with the email as PDF attachments:
Supporting statement (for paper costs determination)
Claim No.: [xxxx]
Parties: [Claimant] v [Defendant]
Court: [County Court hearing centre]
Defendant’s statement in support of costs under CPR 27.14(2)(g)
1. I am the Defendant. I make this statement in support of my request for a summary assessment of my costs under CPR 27.14(2)(g) following the Claimant’s late discontinuance.
2. The Particulars of Claim were deficient and did not comply with CPR 16.4(1)(a), in that they failed to set out a properly particularised cause of action. My Defence was confined to that pleading defect, and I could not serve a witness statement unless and until the Claimant clarified its case by serving its own evidence.
3. The court gave directions requiring witness evidence. The Claimant served no witness statement. Notwithstanding that failure, the Claimant paid the hearing fee and allowed the matter to proceed until approximately 24 hours before the listed hearing on [hearing date], when it filed a Notice of Discontinuance (N279) on [date].
4. This sequence required me to spend significant time and effort: reviewing and researching the rules, preparing and filing a Defence, corresponding about the defective pleadings and directions, and chasing the court for updates, only for the claim to be abandoned on the eve of trial. In my submission, that conduct has no reasonable explanation and amounts to “unreasonable behaviour” within CPR 27.14(2)(g) as explained by the Court of Appeal in Dammermann v Lanyon Bowdler [2017] EWCA Civ 269.
5. Although CPR 38.6(3) limits costs consequences of discontinuance on the small-claims track, CPR 27.14(2)(g) permits the court to award “further costs” where a party has behaved unreasonably. I therefore ask the court to summarily assess my costs as a litigant in person at the guideline rate of £19 per hour for time reasonably spent, together with modest disbursements, as set out in the attached Schedule.
If the court considers a formal application is required, I respectfully invite a direction that any application fee be added to the costs payable by the Claimant.
Statement of Truth
I believe that the facts stated in this supporting statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
Signed:
Date:
Name: [Defendant’s full name]
Address/email: [service details]
And here is a sample itemised schedule of costs. Make sure that you don't exaggerate and be realistic on the amount of time spent.
Itemised schedule of costs (CPR 27.14(2)(g))
Claim No.: [xxxx] — [Claimant] v [Defendant]
Defendant: [name] (litigant in person)
Hourly rate claimed: £19.00 (LiP guideline)
Work done (reasonably caused by the Claimant’s conduct):
1. Reviewing claim form and defective Particulars; identifying CPR 16.4 issues – 2.0 h
2. Researching CPR 16/27/38 and relevant authorities; considering case strategy – 4.0 h
3. Drafting and filing Defence focused on pleading defects – 3.0 h
4. Correspondence with Claimant/court re directions, witness evidence and status; chasing court – 2.5 h
5. Preparing this costs request: chronology, supporting statement, schedule – 1.5 h
Subtotal time: 13.0 hours × £19.00 = £247.00
Disbursements (receipts available where indicated):
• Printing/photocopying/postage for Defence and correspondence: £[ ]
• (If required) N244 application fee for costs following discontinuance: £[ ]
Total costs sought: £[247.00 + disbursements]
Payment requested within 14 days of order.
Signed:
Date:
Name: [Defendant’s full name]
Are you going to go for it?
