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    • rk4406
    • By rk4406 14th Dec 16, 10:48 AM
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    rk4406
    10p didnt register now rec'd court papers
    • #1
    • 14th Dec 16, 10:48 AM
    10p didnt register now rec'd court papers 14th Dec 16 at 10:48 AM
    Hello,


    Any help and advice appreciated please.


    In 2015 (I will check definite date) I received a parking notice letter from Excel for 100 (again I will check this for def as it may have been 60) through the post to say I had overstayed my time.


    I chose to pay 3.60 for 4 hours parking in Wakefield, 2 hours parking was something like 2.60.
    I still had my ticket and it transpires that I had put my money into the machine, 10p had not registered/dropped through with out me knowing and so a ticket for 2 hours was given for the price of 3.50.


    I responded to the letter at the time with evidence, an apology and offered to send the 10p to whoever it needed to go to. Letters continued to come, changing from one debt collector to another over the last 2 years, then BW Legal and now Court Papers. I responded to once to each of the debt collectors stating the same facts. I have kept all correspondence.


    I plan to respond to the court papers obviously but I haven't read any threads about my situation and I just wondered if it was worth defending? If yes, should I be using a certain template?


    Thank you
    Rebecca
Page 5
    • The Deep
    • By The Deep 13th Mar 17, 2:29 PM
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    The Deep
    Why not invoice them for your time at 19 an hour, If they fail to pay issue an LBC and if they again demur an actual claim. You have very little to lose and can cause them a huge amount of hassle.
    You never know how far you can go until you go too far.
    • Loadsofchildren123
    • By Loadsofchildren123 13th Mar 17, 2:59 PM
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    Loadsofchildren123
    The rule to look at is 38.


    38.2(1) A claimant may discontinue all or part of a claim at any time.


    38.3 deals with serving a notice of discontinuance (the Claimant has complied with its obligations here)

    38.5
    (1) Discontinuance against any defendant takes effect on the date when notice of discontinuance is served on him under rule 38.3(1)
    (2) Subject to rule 38.4, the proceedings are brought to an end as against him on that date. [don't worry about 38.4 it only applies if you want to set the discontinuance aside]
    (3) However, this does not affect proceedings to deal with any question of costs. [my emphasis]


    38.6
    (1) Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.
    (3) This rule does not apply to claims allocated to the small claims track

    Nothing further is said about this. It's a bit confusing. I'd argue that paragraph (3) simply reflects the small claims rule in Rule 27 that you aren't entitled to costs in the small claims court. However, of course if the other party has behaved unreasonably then under Rule 27.14(2)(g) you ARE entitled to costs. I don't think the intention of Rule 38 can be to disentitle you to costs under 27.14(2)(g) just because a Claimant has discontinued. They have still behaved unreasonably and cannot evade liability by discontinuing.


    So I think you could write to the court and say that although it's been discontinued, you want to argue that there should be a costs order pursuant to 38.6(1), in spite of 38.6(3) because Rule 27.14(2)(g) applies. Then set out in detail:


    1. all of their breaches of the CPR rules, including their pre-action obligations. (I've just done my costs argument for my Skeleton, have a look at it, you could pinch parts of it for your letter). You need to add details of all the breaches of the rules since issuing proceedings - list each one carefully to build a picture of unreasonableness. I've got a document somewhere that you can use as a starting point if you would like?


    2. Include details of any letters in which you asked for information and which they unreasonably ignored.


    3. Include details of any offers of settlement you made (I think you continually offered the 10p). Attach copies.


    4. Also highlight that this entire case was over 10p, which was clearly a waste of court resources and your time.

    5. Then you need to say that the "reasonableness" test in 27.14(2)(g) should take into account the Claimant is a professional parking company whose day to day business is ticketing cars and chasing drivers/keepers for payment, they are involved in litigation like this as a matter of course and must understand the duties upon them as a Claimant, including compliance with the court rules.


    6. List in detail all the costs you've incurred, with receipts. Say that you are entitled to costs in respect of the time you have personally spent on this matter, as set out in Rule 46.5 and paragraph 3 of Practice Direction 46, and then break down your 19 per hour charge explaining how many minutes/hours you spent on each activity/document.


    Say that the court can deal with this without a hearing and that you have sent a copy of this letter to the Claimant for it to respond (and do that). The court has a discretion to deal with this on paper - a hearing would be out of all proportion.


    The risk is the court will say "well Rule 38.6.(3) doesn't say that the court has the power to order costs, it specifically says it doesn't" and you might not succeed in arguing that 27.14(2)(g) still applies. But its worth a go. Will post a link to my costs argument in a separate post.
    • Loadsofchildren123
    • By Loadsofchildren123 13th Mar 17, 3:01 PM
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    Loadsofchildren123
    https://www.dropbox.com/s/mc7xhbc2tsuz384/COSTS%20APPLICATION.docx?dl=0
    • Loadsofchildren123
    • By Loadsofchildren123 13th Mar 17, 3:02 PM
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    Loadsofchildren123
    The costs claim isn't a separate claim, it only exists within these proceedings, so a letter before claim wouldn't work.
    • The Deep
    • By The Deep 13th Mar 17, 3:17 PM
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    The Deep
    The costs claim isn't a separate claim, it only exists within these proceedings, so a letter before claim wouldn't work.
    Originally posted by Loadsofchildren123

    Is there any reason why, when this is done and dusted, OP cannot act as per my suggestion?
    You never know how far you can go until you go too far.
    • DoaM
    • By DoaM 13th Mar 17, 5:12 PM
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    DoaM
    None - anyone can sue anyone for any reason (pretty much).

    What Loads is (probably) referring to is the fact that a counter-claim cannot be made if the originating claim is cancelled. Doesn't stop OP raising their own claim though.
    Diary of a madman
    Walk the line again today
    Entries of confusion
    Dear diary, I'm here to stay
    • Coupon-mad
    • By Coupon-mad 13th Mar 17, 6:03 PM
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    Coupon-mad
    I'm so sorry Coupon-mad that you spent the time writing my Witness Statement, which I was quite excited to present in court. But im very glad that I don't need it now.
    It's not wasted; I will now link that WS in post #69 (above) in the NEWBIES thread as an example that worked to help to encourage BW Legal to give up. And it saves me writing one like it again from scratch!

    The quotes from the Beavis case are ones I looked up specially and will be useful again for any other WS or skeleton argument where the claim is clearly an unconscionable and 'out of all proportion' pile of trash (your case over a 10p piece that was in their machine all along, would surely never have fooled a Judge).

    I hope that some other posters might get some use out of that WS in other cases.
    Last edited by Coupon-mad; 13-03-2017 at 7:47 PM.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • bargepole
    • By bargepole 13th Mar 17, 6:37 PM
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    bargepole
    Is there any reason why, when this is done and dusted, OP cannot act as per my suggestion?
    Originally posted by The Deep
    There is no reason why the OP cannot send an invoice.

    But, as there is/was no contractual agreement in place for the PPC to reimburse the OP for time spent, they would be under no obligation to pay it, and would most likely just ignore it.

    For the same reason, if the OP then tried to take them to court for non-payment, it would almost certainly get thrown out as disclosing no cause of action.
    Speeding cases fought: 24 (3 of mine, 21 for others). Cases won: 20. Points on licence: 0. Private Parking Court Cases: Won 22. Lost 7.
    • henrik777
    • By henrik777 13th Mar 17, 7:07 PM
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    henrik777
    My preferred method is to send a letter to the court.

    Edit to suit.



    Technically it should be an application but i'm not convince the odds of spending cash to ask are worth it. A letter MIGHT prevail but costs little. Normally small claims track costs are not allowed in these cases but 27.14 2 g can help with the right court/judge. It's worth asking.

    "In the County Court at xxx

    ~~ To be put before procedural judge ~~

    In the matter of

    Deal v XYZ
    Claim Number XXX

    Dear Sir or Madam,

    I have been advised by the court on xxxxx that the listed hearing for this claim was vacated and I understand that this is due to the Claimant's discontinuance.

    CPR r.38.6 states that the claimant is liable for the defendant's costs after discontinuance (r.38.6(1)) but that this does not apply to claims allocated to the small claims track (r.38.6(3)). However, the white book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(d))." I believe it should actually refer to r.27.14(2)(g) as that is the rule which allows the court to award costs for unreasonable behaviour.

    On this basis I would like to request a costs order to be made against the Claimant given that DEAL has behaved unreasonably by discontinuing this claim, and also by not submitting any evidence/witness statement in support of their claim other than their claim form, and by not serving me with a copy of their Directions Questionnaire contrary to the court order.

    The Defendant had significant costs to prepare the Defence and prepare attendance of the hearing and the costs claimed are as follows:

    (explain any expenses here).

    Yours faithfully,

    XYZ
    Defendant"

    This won't guarantee you anything but it is worth a shot, and as long as you're not taking the p##s with what you're claiming you may have a friendly judge who gives you a costs order.

    19 per hour.

    Quite often this is met with "Make an application if you want but i am not dealing with a letter" Signed Judge fussy.


    Sometimes it works and they award costs.

    One bizarre one last week came back

    I received a letter from the Court. They've forwarded a copy of my correspondence back to the claimant.
    "IT IS ORDERED THAT"
    1. The claimant shall send to the court and to the defendant a written response to his application by 22nd March 2017.
    2. The defendant shall within 14 days of receiving that written response send to the court and to the claimant any further response.
    3. The application shall then be determined by District Judge ****** on paper.
    4. Because this order has been made by the court without a hearing, a party affected by it may apply within 7 days of being served with it to have it varied, set aside or stayed.


    A costs application, if the letter fails, is possible but i'm not a great fan of spending 255/100 when nothing is certain and the value low. It is possible to win such an application though. https://consumercreditlitigationanddebtcollection.wordpres s.com/
    Last edited by henrik777; 13-03-2017 at 7:57 PM.
    • Coupon-mad
    • By Coupon-mad 13th Mar 17, 7:48 PM
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    Coupon-mad
    Great advice Henrik777, as ever.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • Loadsofchildren123
    • By Loadsofchildren123 13th Mar 17, 8:03 PM
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    Loadsofchildren123
    Is there any reason why, when this is done and dusted, OP cannot act as per my suggestion?
    Originally posted by The Deep
    As bargepole et al have said - there has to be a cause of action (eg breach of contract). There wouldn't be one here. The application has to be made within these proceedings.

    I'd add to the suggested letter, which is great -
    I ask that the court deals with this application without requiring a formal application, as it has the power to do pursuant to CPR rule 1.4(2)(c) and Practice Direction 26, para 5.1, and further that it deals with the application on paper, pursuant to rule 23.3(2)(b). [its always best to spell out the courts powers because as henrik says DJs can be very fussy, and they are often very ignorant about the CPR]

    Personally I'd add all the reasons why there should be a costs order by setting out all the pre- and post-action breaches justifying why the Claimant's conduct should be deemed unreasonable.
    • Loadsofchildren123
    • By Loadsofchildren123 13th Mar 17, 9:16 PM
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    Loadsofchildren123
    Also, I haven't looked up the rule to remind myself what the exact wording is, but what it says is if an order mentions nothing about costs then the legal presumption is there is "no order" (meaning you each pay your own). So if you don't raise costs now then the issue of costs will be disposed of in the Order discontinuing the claim. So there will be no outstanding claim to costs full stop.
    The only way of claiming costs of proceedings is within those proceedings.

    If the judge won't deal with it on paper then I completely agree there is little point paying an application fee and you'd be better to let it go. But personally I'd be tempted to at least try with a letter.

    It won't take much effort to combine henrik's suggested letter with some of the points in my document. I think to have any chance of success you must demonstrate the conduct you say is unreasonable with reference to the court rules they've broken.
    • henrik777
    • By henrik777 13th Mar 17, 9:17 PM
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    henrik777
    Also, I haven't looked up the rule to remind myself what the exact wording is, but what it says is if an order mentions nothing about costs then the legal presumption is there is "no order" (meaning you each pay your own). So if you don't raise costs now then the issue of costs will be disposed of in the Order discontinuing the claim. So there will be no outstanding claim to costs full stop.
    The only way of claiming costs of proceedings is within those proceedings.

    If the judge won't deal with it on paper then I completely agree there is little point paying an application fee and you'd be better to let it go. But personally I'd be tempted to at least try with a letter.

    It won't take much effort to combine henrik's suggested letter with some of the points in my document. I think to have any chance of success you must demonstrate the conduct you say is unreasonable with reference to the court rules they've broken.
    Originally posted by Loadsofchildren123
    A notice of discontinuance doesn't come from the Judge and is not an order of the court.
    • Loadsofchildren123
    • By Loadsofchildren123 14th Mar 17, 9:31 AM
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    Loadsofchildren123
    A notice of discontinuance doesn't come from the Judge and is not an order of the court.
    Originally posted by henrik777


    Agreed, but the discontinuance then takes effect (unless you apply to set it aside) - so if you follow through the logic of the rules (which aren't always so logical) then if a discontinuance takes effect with no costs order being made, wouldn't it be deemed (after the 28 days has run out for setting it aside) that each party must pay their own (in the same way that where an actual order is silent on costs each party pays their own)?


    The actual point here is that unless the OP applies for costs within these proceedings, then there can be no later claim.
    • henrik777
    • By henrik777 14th Mar 17, 6:01 PM
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    henrik777
    Agreed, but the discontinuance then takes effect (unless you apply to set it aside) - so if you follow through the logic of the rules (which aren't always so logical) then if a discontinuance takes effect with no costs order being made, wouldn't it be deemed (after the 28 days has run out for setting it aside) that each party must pay their own (in the same way that where an actual order is silent on costs each party pays their own)?


    The actual point here is that unless the OP applies for costs within these proceedings, then there can be no later claim.
    Originally posted by Loadsofchildren123
    There will never be a costs order for a notice of discontinuance. The claimant, the ones who issue such a notice, would be pretty stupid to add something like "and the claimant must pay 100 costs to the defendant" and even if they did it wouldn't be binding.

    Only a court can order costs. You can try and cheat the system by sending a letter or use the system and make an application which most people need to pay for.
    • Loadsofchildren123
    • By Loadsofchildren123 15th Mar 17, 1:19 PM
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    Loadsofchildren123
    I think the consensus is to write in and have a go, but if it doesn't work to let it go because you'd have to issue an application which will cost you 255.... which you might not win.
    You have nothing to lose writing the letter and asking, but you need to set out why there should be a costs order under 27.14(2)(g) so must demonstrate the unreasonable conduct, both pre- and post-proceedings. Put in reference to those cases I mentioned in my document.
    • rk4406
    • By rk4406 21st Mar 17, 8:52 PM
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    rk4406
    Hello all,

    As much as i want to make them pay and claim for costs, im just happy that its all over and resolved. I have too much going on at the moment to pursue this, after the relief of the discontinuance of the claim (the official letter came today from the court) i am happy to let things lie now.

    I hope you all dont mind and aren't disappointed that im not following this through.
    Thank you all for your help - peace out!
    • Coupon-mad
    • By Coupon-mad 21st Mar 17, 9:04 PM
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    Coupon-mad
    We quite understand! Your case will help others, that's enough. And you have 6 years if ever you fancy suing.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • Roseyboy
    • By Roseyboy 19th May 17, 2:50 PM
    • 1 Posts
    • 2 Thanks
    Roseyboy
    This sounds familiar....
    I hope you don't mind asking but did this happen in the Smyth Street car park by any chance?

    If so my wife had exactly the same issue in Feb this year. She paid for 4-8 hours of parking (cost 4.50), She noticed that the last 10 pence didn't register so put in another 10 pence....and guess what...it didn't register. She got her ticket but it only showed 4.40. She was traveling in a group and two of the others also had issues with the machines - one had a pound coin that failed to register and the other had another 10 pence that didn't.

    One of them rang the help line and reported the issues to the operator and informed them that 'others were also having problems'. The operator said that they would send an engineer but that was it...they didn't ask for any of the other car's details.

    Then 2 weeks later a PCN letter arrived inviting my wife to part with 100 for the privilege of their machines not working correctly. We appealed to Excel, it was rejected and now we are going through IAS......but I'm not holding my breath.

    Interestingly the ticket she was issued was for 6 hours but this is not a parking period listed on their tariff board.

    As far as I can see Excel Parking / VCS are in 'Breach of Contract' as their offer was accepted and paid in full - it was their equipment and systems that failed.
    • The Deep
    • By The Deep 19th May 17, 4:47 PM
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    The Deep
    You could always counter claim for the overpayment if you lose the appeal and they issue a claim.
    You never know how far you can go until you go too far.
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