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Court papers ref BW legal/Excel

13567

Comments

  • Lamilad is right: rule 27.2(1)(f) says that Rule 18 doesn't apply in small claims, but this is subject to paragraph (3) which says that the court can order a party to provide information if it is appropriate.


    Rule 18 itself doesn't say that Part 18 Requests have to be answered. It says the court can order a party to do so. The Practice Direction to Rule 18 says you can ask questions, and provides the procedure for asking the court to order a party to answer them. It provides that any request must be "concise and strictly confined to matters which are reasonably necessary and proportionate to enable the first party to prepare his own case or to understand the case he has to meet."


    There is a subtle difference - in other types of cases you'd put in a Part 18 Request and if the other side don't answer it you'd make a formal application to the court for it to be answered. In small claims you can ask questions, but there is no provision for you to make a formal application, only provision for the court to make an order "of its own volition".


    So if you want to ask questions, I'd put them into a formal Part 18 document and if the other side refuses to answer them I'd write to the court asking it to make an order under Rule 27.2(3) - in your letter to the court you must explain why the questions are necessary, how they are proportionate, that the other side has refused to answer them and how this prejudices you (eg you are unable to prepare a proper defence without the information because.....)

    Send the Request to the solicitors, not direct to the Claimant.


    Here is my anonymised Part 18 Request - some of my questions will be irrelevant (in my case one entity is named on the signage and the NtD which is not a legal entity in its own right and is not the Claimant, but which might or might not be said to be synonymous with the Claimant). You can adapt this draft to include questions you want to ask. I put mine in after the witness statements were exchanged, and my "Of......." questions refer to their statement - if you haven't reached that stage your "Of...." questions would refer to the Particulars of Claim.


    https://www.dropbox.com/s/trb6u5yjtke4ypc/PART%2018%20REQUEST%2027.01.17anonymised.docx?dl=0
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
  • Thanks for the document, i am still awaiting the determination of the location of the court, so if i send the request with "court location to be informed" will that be ok, i note that it should be sent to BW legal See below for my request questions.


    1. What is the basis of the claim, is Excel Parking Services Ltd making a claim as an agent of the landowner or making the claim as occupier in their own right?

    2. Is the amount claimed by Excel Parking Services Ltd for a genuine pre estimate of loss for a breach of contract or a contractual sum?

    3. If the contract has been conveyed by the use of signage on site, please provide copies of the signs on which you rely and confirm these are the signs in situ on the date of the event. Please also provide the date these signs were installed, for example, a works schedule, maintenance record or invoice for the work.

    4. Please inform me if there signs at the entrance to the site on the date in question? Did these meet the British Parking Association's Code of Practice Appendix B (Entrance signs) or the Independent Parking Committee’s Schedule 1 (Please indicate), and can you produce documentation/photographs verifying this.

    5. Please confirm whether it is the Claimant’s intention to adduce photographs and or video footage of the relevant event and:
    a) That such photographs and/or footage is in the Claimant’s possession and if not when it will be?
    b) That such photographs and/or footage are available for inspection and if not when they will be?
    c) That copies of the photographs and/or footage can be provided and that all the originals will be available at court.

    6. Please confirm that the Claimant can demonstrate a clear chain of authority from the landowner either by way of a written authority contract, deed or lease?
    a) That this/these document(s) are in the Claimant’s possession or if not when they will be.
    b) That such document(s) are available for inspection and if not when they will be.
    c) That copies of the document(s) can be provided and that the originals will be available at court.

    7. Please confirm that you have and can produce documentation as to the keeper of the vehicle in question for the date of the alleged contravention and how long this has been held by the claimant or its legal representative.

    8. Please confirm that you have documentation/photographs of the “failure to display a valid permit/ticket” for the alleged contravention and can produce them.

    9. Please confirm and can you produce a plan of the car park and where the vehicle in question was parked.

    10. Please confirm that you have and can produce an unredacted statement signed by the person/attendant who witnessed/recorded the alleged contravention and that he/she is/was an authorised employee of Excel parking services, and authorised for the specific activity at the time of the alleged contravention

    11. Please confirm that the Claimant has in his possession an analysis of the costs incurred that form the additional charges included in the claim and:
    a) That copies of such an analysis and other attendant documents upon which the analysis is based are available for inspection and if not when they will be?
    b) That copies can be provided of the analysis and attendant documents and that all original documents upon which the Claimant might seek to rely on in this respect will be available at court.
    12. Please inform me of the basis of the claim in relation to “failure to display a valid parking permit/ticket” and whether it is a permit or ticket that the claim is related to, or non- payment or other relevant condition.
  • Lamilad
    Lamilad Posts: 1,412
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    in your letter to the court you must explain why the questions are necessary, how they are proportionate, that the other side has refused to answer them and how this prejudices you (eg you are unable to prepare a proper defence without the information because.....)

    Send the Request to the solicitors, not direct to the Claimant.

    Even where p18's are sent in small claims, I'm sceptical of their usefulness. i sent one in my first case and, although bwl did respond with the info I requested, it didn't help with my preparation.

    I think a lot of posters see them on other threads and think I'll send one because that's what others are doing, without really understanding what they're asking for or needing the info.

    There's also the fact that in many cases the PoC's are woefully deficient and this can be a strong point for the defendant to bring up in court - that the PoC are vague and incoherent. and the claimant has acted unreasonably in not supplying enough information for the defendant to be able to prepare his/her defence.

    This has even more impact when the judge is reminded that the defendant is an unrepresented litigant in person with no legal knowledge or court experience up against a company known to be serial litigants employing legally qualified professionals and with well funded firms of solicitors at their disposal.

    Telling the claimant that you need more info (which they should have provided in the first place) also gives them chance to get their ducks in a row, so Loc's tac to send it after WS's have been exchanged is interesting because then they can't change anything in their bundle, but there's also the problem of the reply not being received before the hearing and anything useful received cannot be adduced by the defendant
  • Coupon-mad
    Coupon-mad Posts: 130,645
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    edited 7 August 2020 at 6:41PM
    + 1 - good advice there Lamilad.

    A SAR can be more useful - makes them show their hand of all photos & letters.
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  • Thanks for the document, i am still awaiting the determination of the location of the court, so if i send the request with "court location to be informed" will that be ok, i note that it should be sent to BW legal See below for my request questions.


    I didn't appreciate that - head it with the existing court heading then, pending transfer. If you think some of the info is crucial for your defence, you might include in your letter a request that the time for you to file your defence be extended to 14 days after they reply to the Request. But don't assume that they will give you this and if you hear nothing then get your defence in within the existing time limit.


    If the court ignores this, when you get notification it's been transferred write in to the new court with the same letter asking them to order the request be answered - hopefully they'll include this with the standard directions that they will then issue (exchange of witness statements/documents, final hearing etc).


    1. What is the basis of the claim, is Excel Parking Services Ltd making a claim as an agent of the landowner or making the claim as occupier in their own right?

    2. Is the amount claimed by Excel Parking Services Ltd for a genuine pre estimate of loss for a breach of contract or a contractual sum?

    3. If the terms of the contract are claimed to havehas been conveyed by the use of signage on site, please provide copies of the signs on which you rely and confirm these are the signs in situ on the date of the event. Please also provide the date these signs were installed, for example, a works schedule, maintenance record or invoice for the work.

    4. Please inform me if there signs at the entrance to the site on the date in question? Did these meet the British Parking Association's Code of Practice Appendix B (Entrance signs) or the Independent Parking Committee’s Schedule 1 (Please indicate), and can you produce documentation/photographs verifying this.

    5. Please confirm whether it is the Claimant’s intention to adduce photographs and or video footage of the relevant event and:
    a) That such photographs and/or footage is in the Claimant’s possession and if not when it will be?
    b) That such photographs and/or footage are available for inspection and if not when they will be?
    c) That copies of the photographs and/or footage can be provided and that all the originals will be available at court.
    I would simplify this to a request "please supply any photographs and/or video footage upon which the Claimant intends to rely"

    6. Please confirm that the Claimant can demonstrate a clear chain of authority from the landowner either by way of a written authority contract, deed or lease?
    a) That this/these document(s) are in the Claimant’s possession or if not when they will be.
    b) That such document(s) are available for inspection and if not when they will be.
    c) That copies of the document(s) can be provided and that the originals will be available at court.
    Again, I'd simplify and make it a request for these documents now: "Please supply a copy of any contract, or chain of contracts, authorising the Claimant to issue parking charges on the relevant land"

    7. Please confirm that you have and can produce Again I'd simply ask "Please produce documentation as to the keeper of the vehicle in question for the date of the alleged contravention and how long this has been held by the claimant or its legal representative.

    8. Please confirm that you have documentation/photographs of the “failure to display a valid permit/ticket” for the alleged contravention and can produce them. Please produce whatever evidence the Claimant has that the driver failed to display......

    9. Please confirm and can you produce a plan of the car park and showing where the vehicle in question was parked.don't ask for confirmation, just "Please produce....."

    10. Please confirm that you have and can produce an unredacted statement signed by the person/attendant who witnessed/recorded the alleged contravention and that he/she is/was an authorised employee of Excel parking services, and authorised for the specific activity at the time of the alleged contravention not sure you'd get this, personally I'd leave it out of a formal request - the shorter the request the more likely you'll get it

    11. Please confirm that the Claimant has in his possession an analysis of the costs incurred that form the additional charges included in the claim and:
    a) That copies of such an analysis and other attendant documents upon which the analysis is based are available for inspection and if not when they will be?
    b) That copies can be provided of the analysis and attendant documents and that all original documents upon which the Claimant might seek to rely on in this respect will be available at court. ditto comment under 10 above - I'd leave this out at this stage
    12. Please inform me of the basis of the claim in relation to “failure to display a valid parking permit/ticket” and whether it is a permit or ticket that the claim is related to, or non- payment or other relevant condition.


    Comments in red. Try to make them direct questions for the information now, not for confirmation they have it and will produce it later.
    Include these things in your letter to the court asking for it to order the Claimant to answer it:
    1. all of the information/documents requested is what the Claimant should have produced with/subsequent to the Letter Before Claim, in compliance with paragraphs 3 and 6(c) of the Practice Direction - Pre-Action Conduct and Protocols, which would have allowed you to respond substantively, as you are obliged to do by paragraph 3 and 6(b), and to consider your position as per paragraph 12.
    2. As it is, without this information you are unable to give proper consideration to your position, or to your defence.
    3. Ask the court to order that the request be replied to, and that it at the same time stays the proceedings pursuant to paragraphs 13 and 15(b) of the Practice Direction. Enclose the Letter Before Claim and point out that it is very brief and contains almost none of the information required by paragraph 3 and 6(a) and (c).
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
  • Just read Lamilad and CM's posts after posting the above.


    The PPC is more likely than not to refuse to answer the Request. If this is the case, it makes the poor PoC and their conduct look even worse. Gladstones have refused to answer mine.


    However, the risk is they DO answer it of course.


    The risk in not asking is if you get a judge who doesn't really care about the poor PoCs (especially if the information, or at least some of it, is later contained in the Witness Statement). This seems to happen all the time with PPCs getting away with it.


    I had 2 cases recently which illustrate the different attitudes that you will find (neither were anything to do with parking btw):
    1. The PoC made out no cause of action. On the Defendant's application to get the whole thing chucked out, the DJ agreed that the PoC were a load of old rubbish, but then said "we see this all the time, poorly drafted PoCs, but the Claimant can always provide more detail in the Witness Statement". A sad indictment of the quality of the judges and their attitude to rule breaking. The Claimant did NOT go on to deal with the issue in her statement and the Defendant won hands down, but after a full 4 day trial which cost tens of thousands.
    2. Another case where the Claimant had largely ignored the pre-action Practice Direction - they got a right ear bashing from the judge and he stayed the proceedings, ordered them to comply, and gave the Defendant indemnity costs.


    Same level of judge and same circuit, but a different judge. So much depends on the judge you get. It's what we blithely refer to as "litigation risk".
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
  • Thanks for the review/comments on that, i forgot to add to the list: Inform me of the number of vehicles that entered and obtained tickets/permits for the time period corresponding to the same as the vehicle in question.
    Any comment on that?
  • I think if you combine mine and Lamilad/CM's thinking:


    1. there are some questions you need to ask to understand and deal with the claim at the start (ie info necessary for your defence). This is the sort of "core" information the Practice Direction expects a Claimant to disclose in the pre-proceedings period (paras 3 and 6(a)/(c)).


    2. there are other pieces of information which add to/complete the jigsaw, but which it isn't necessary to know at the start, to understand the Claim and prepare your defence. Eg the additional question you posted above.


    In favour of putting one in now:
    a. you can ask the court to stay the proceedings in light of the failure to comply with the Practice Direction until they've provided the info (but the request MUST be confined to core information, not things like your last question).
    b. the PPC may refuse to answer it, which makes them look even worse than if they'd just put in the rubbish PoC.


    Against putting one in now:
    a. they answer it, taking the wind out of your sails on the rubbish PoC point and remedying (at least in part) their breach.


    In favour of putting one in after the Statements:
    a. You lose your chance to apply for a stay, but you remove the opportunity for the PPC to explain its case any further so you can still complain about the poor PoC and Witness Statement.
    b. If they refuse to answer it, you get to say to the judge that they have been singularly unhelpful and have failed to provide information reasonably requested, both pre- and post-proceedings.
    c. if they answer it, you still get to say how unhelpful they've been because why wasn't the information in their PoC and their WS.
    d. the timing doesn't allow them to correct their case or get their ducks in a row because they've already served their evidence.


    Against putting one in later:
    a. they answer it, getting their ducks in a row. But they'd still be open to criticism for the way this had to be forced out of them.


    Sadly, there is no right or wrong answer about whether, or when, to put in a Pt 18 Request. You have to weigh up the pros and cons and make a decision.
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
  • OP, I missed your question in #23.


    I think the time to send this (if you decide to send it) is with your Directions Questionnaire. There is probably a box in there somewhere to say "do you want the court to make other orders?", so fill that in and refer to the covering letter and the Request, or put all the reasons in there why you want the order. Include reference to the rules in my post above - you would be amazed by the number of judges who don't know the rules so it's always much better to spell them out. Also ask for a stay until these documents/information are produced because of the breaches of paras 3(a)/(c) and 6 of the Practice Direction - Pre-Action Conduct, and because without the information you are unable to understand the claim and draft a proper defence - refer to the court's power to stay the proceedings and order a party to comply with its pre-action obligations (I think it's paragraph 15 - paras 13-16 are the ones that talk about sanctions for non compliance).


    If no relevant box in the Directions Questionnaire, send a separate letter with it.
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
  • Sorry, the breaches are of paras 6(a) and (c) and 12 of the Practice Direction (not paras 3 and 6)
    Power to order a stay is in para 15(b)
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
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