Introduction
As with many SLAPPs there are many people who not only threaten, but do actually issue Court Proceedings – albeit vexatiously.
Of course, as with the nature of SLAPPs the Claimant rarely intends to actually go to Trial, but sometimes when the proposed Defendant calls their bluff – they do issue proceedings……but never intend for it go go to trial.
Often with SLAPPs there will be moments in the preparation for trial which cause issues for (honest) Claimants, such as witness statements or disclosure.
Then……when the going gets tough, the facts don’t add up, or the disclosure becomes problematic, or dishonesty is proven, and the Claim looks like it will fail at trial……the Claimant’s solicitors serve an N279 Notice of Discontinuance; under Civil Procedure Rule Part 38.2(1), a Claimant can discontinue a claim at any time.
Often it is the case that whilst it is ‘on the cards’, it won’t necessarily be entirety predictable to a Defendant or Defendants.
Opinion
The Issue
Where a Claimant discontinues a claim, unless agreed by way of separate Order (which deals with issues such as Costs) – it is simply a case of pulling the rug on the claim.
Even when a Claimant pulls the rug on a claim, there is still the issue of costs.
Those on the defending side of a claim will have spent time and money defending the claim – and may have even been subjected to interim costs orders as part of that claim.
The case now moves to a phase where unless costs can be agreed, a Defendant will need to produce a Bill of Costs (this involves paying a regulated Costs Draftsman/Costs Lawyer), and if the Costs still can’t be agreed – it will be a case of paying for Detailed Assessment proceedings, which come with a hefty Court fee – and of course more solicitors fees.
Of course, if the matter goes to Detailed Assessment Proceedings it falls to a Costs Judge to decide. This no doubt will then trigger arguments from the Claimant that they should pay a discounted amount of the Defendant’s costs.
Can this be right?
If a Claimant brings a claim, a Defendant has to defend it, otherwise the Claimant can/will gain a Judgement in default. Even making an application to strike the claim out comes at cost to the Defendant(s).
If a Defendant defends a claim, they will often pay solicitors and barristers to assist them with defending the claim – all of this comes at substantial cost, in circumstances where a Defendant may be totally innocent, or the claim entirely vexatious.
Even if the claim is fraudulent, false, vexatious, meritless, etc, etc – where a Claimant elects to simply discontinue the claim when the going gets tough (which they can do at any point in the proceedings); the Claimant can still kick up a stink on paying the Defendant’s costs, until ordered by the Court.
It’s wrong!
Clearly this cannot be right, in fact it is totally wrong.
Many Claimants will not only issue proceedings, but pursue every preliminary issue/application going to attempt to gain costs orders against their opponents, and effectively attempt to financially crush their opponent before any trial begins….none of this can be considered by the Court in the traditional sense of “costs” – getting that money back will be a challenge.
So when a Claimant decides to throw the towel in (at their leisure), and then argue about the costs – it cannot be right that the Claimant can be entitled to do this.
The Solution?
If a Claimant discontinues a claim under Civil Procedure Rule 38, issuing a N279 Form, the Civil Procedure Rules should allow that in default a Claimant must pay 100% of the the Defendant’s costs, as well as any interim costs orders the Defendant has had to pay.
Of course, if the Discontinuation is subject to a Consent Order between the parties, which may well include costs and other issues/remedies – it makes absolute sense that this would allow a variation to the costs in default.
But, if the Claimant simply throws the towel in because their dishonest approach to the claim has been caught out, or for some other reason to do with their conduct – surely it can’t right that they are entitled to argue that they shouldn’t pay 100% of the Defendant’s costs?
