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  • FIRST POST
    • Sassii
    • By Sassii 9th Jun 17, 6:47 PM
    • 154Posts
    • 95Thanks
    Sassii
    my draft defence Gladstones - PCM Court action
    • #1
    • 9th Jun 17, 6:47 PM
    my draft defence Gladstones - PCM Court action 9th Jun 17 at 6:47 PM
    Hi All
    Thanks for all can help me for my case as PCM want to take me to court for 3 PCNs. As PCM replace their signage from POFA12 to Contract term I sent to them Notice of Cancellation letter long time ago. Agian same process up to reach to court claim from Gladestones which that was my 1 st time. I spent all last 3 weeks digging and please find my draft defence for advise.

    https://www.keepandshare.com/doc16/16884/epson007-pdf-801k?da=y


    Statement of Defence
    IN THE COUNTY COURT BUSINESS CENTRE

    CLAIM No:

    BETWEEN:

    PARKING CONTROL MANAGEMENT (UK) LIMITED (Claimant)

    -and-

    xxxxxx (Defendant)

    I am representing myself due to the cost of a solicitor and due to this I request some leeway or in other words please take it easy on me I am new at this.

    (1) It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.
    (2) As the car mentioned in the particulars of claim was a company car which all company employees & others are insured to drive that car & the parking events / alleged breaches were 7-10 months ago, so nobody can remember who was driving. It’s strictly requested that PCM to provide any evidence of who the driver was.
    (3) I never knew what are Gladstones Solicitors was talking about as their letters dated xxxxx have no cross reference to any PCN numbers up to I received Letter Before Claim dated xxxxx so all of that time Gladstones Solicitors was misleading me.
    (4) I have received no copies of any disclosure of any documents from Gladstones Solicitors Ltd with the exception of the Letter Before Claim & court summons. Although I asked for that documents on my letters to Gladestones Solicitors dated xxxxxx & on my letters to PCM dated xxxxx but they never send the requested documents. This is likely to mean I may have to alter my defence in light of any new evidence.
    So in light of the little information I have please find below:
    (a) Charge dated xxxxx:
    - There is no contract in force between the claimant & defendant as Cancelation Of Contact Notice (COCN sent to PCM on xxxxx before issuing the charge in question. The signage on the site stated that parking will be under contractual terms and Gladstones Solicitors letter dated xxxxxx saying ‘’your contract was with our client’’ while there is no contract in force as mentioned above. (Signage photo, COCN letter, Proof of post & confirmation photo attached).
    - The signage was located on UKPN property which I was working for & I can confirm there is no contract between PCM & UKPN, so it’s strictly requested that PCM to show they have a permission to fix their signage on UKPN property.
    - Claimant & their representative strictly required to provide the full documents requested in the above mentioned letters.

    (b) Charges dated 10/10/2016:
    - I have only unclear copy of NTK dated xxxxx saying ‘’this notice is given in line with schedule 4 of the POFA 2012’’ while the the signage on the site stated that parking will be under contractual terms and Gladstones Solicitors letter dated xxxxx saying ‘’your contract was with our client’’. That makes confusion of the reason of that charge.

    - Claimant & their representative strictly required to provide the full documents requested in the above mentioned letters.

    (c) Charge date xxxx: I have no documents relating to that charge so Claimant & their representative strictly required to provide the full documents requested in the above mentioned letters. The signage on the site stated that parking will be under contractual terms and Gladstones Solicitors letter dated xxxxx saying ‘’your contract was with our client’’ while there is no contract in force as mentioned above.
    (5) I have no idea at this stage whether I am being pursued under the Protection of Freedoms Act 2012 for this debt or whether this is for civil trespass. A parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

    (6) I have never been supplied with any confirmation from the claimant or his agents that they actually own or have a contract with the landowner of the land in question which would allow them issue penalty tickets although I asked them several times to provide that contract but they never responded. So I have no idea if this is just a speculative invoice.

    (7) I am yet to have knowledge of all documents provided to the court in support of the application, despite sending a CPR 31.14 request to the claimant's solicitors on xxxxxx.

    (8) Claimant & his representative should supply a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus stand to bring this case.
    (9) Gladstones Solicitors Ltd has supplied no contract showing they have the right to pursue cases on behalf of Parking Control Management (UK) Ltd. It is request that this right is confirmed with a signed unredacted contract.
    (10) The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "legal representative’s costs". These cannot be recovered in the Small Claims Court.
    (11) Whilst it is admitted that the Defendant was the registered keeper of the above vehicle at the time of the alleged events it is averred that the Defendant was not the driver on the date and time mentioned in the particulars and the Claimant is put to strict proof in this respect.
    PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort" (POPLA report 2015).

    (12) The government have put in place a mechanism whereby liability can be transferred from driver to keeper, under the Protection Of Freedoms Act 2012, sch 4. The claimant has made the conscious decision not to avail themselves of this legislation and use a notice to keeper which fails to comply with 8.1, 8.2a, 8.2c, 8.2f, 8.8b, 9.2.a, 9.8b of the Act.
    - 17. Further the Claimant must also demonstrate that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the Registered Keeper.
    - The Claimant is put to strict proof that such a “relevant obligation” existed and that the Claimant has followed the correct procedure to transfer liability to the Registered Keeper.
    - In the absence of strict proof as to the existence or otherwise of a “relevant obligation” and as to properly transferring liability to the Registered Keeper the court is invited to strike the matter out.
    (13) On the other hand it is believed that the Claimant may seek to rely on a rather
    unique interpretation of the judgement in Elliott -v- Loake
    - endeavour to persuade the court that the case created a precedent amounting to a presumption that the registered keeper is the driver where no other evidence or admission exists and thereby prove his allegations.
    - I submit that this interpretation actually represents a very considerable reworking of the case and does not fairly convey the findings.
    - The reality is that no such precedent was created and that Mr Loake was found guilty (it was a criminal matter) on a surfeit of evidence including forensic evidence of being the driver at the time of a road traffic accident which he had previously lied to the police about. Crucially this evidence proved the case to a criminal standard not simply on a balance of probabilities as applies in the instant matter.
    (14) This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.
    (15) The Claimant has not complied with the pre-court protocol.
    - No Letter of Claim was sent to the Defendant showing the PCN numbers mentioned in Letter Before Claim and no initial information was sent to the Defendant although it was requested.
    - I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially bearing in mind that the Claim was issued by their own Solicitors so they clearly had legal advice before issuing proceedings.
    (16) The claim form itself is vague and lacks pertinent information as to the grounds for the claimant’s case. The particulars of claim fail to meet CPR16.4 and PD16 7.3-7.5 and merely provide a date, due date, and an "amount" consisting of a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors.
    - Direction 16, paragraphs 7.3 – 7.5: CPR 16.4 Contents of the particulars of claim
    (1) Particulars of claim must include –
    (a) a concise statement of the facts on which the claimant relies
    (b) if the claimant is seeking interest, a statement to that effect and the details set out in paragraph (2);They have stated they are seeking interest from date x to date y, but provide no details (the defendant clearly told the Claimant that the debt was denied and that they were not the driver. The Defendant is not therefore liable for the Claimant’s delay in bringing a claim).
    (e) such other matters as may be set out in a practice direction.

    - PD 16 paras 7.3 – 7.5
    7.3 Where a claim is based upon a written agreement:
    (1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and
    (2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).
    7.4 Where a claim is based upon an oral agreement, the particulars of claim should set out the contractual words used and state by whom, to whom, when and where they were spoken.
    7.5 Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.
    (17) The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action.
    HMCS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.
    I believe the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers.
    I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.
    (18) The defendant wrote to the claimant on 06/1/2017asking for:

    1. Who is the party that contracted with your Client for that claim? I require their contact details and the full identity of the landowner.
    2. Is that charge based on damages for breach of contract? Answer yes or no.
    3. If the charge is based on damages for breach of contract please provide your justification of this sum.
    4. Is that charge based on an agreed 'fee' for the provision of parking? Answer yes or no. If so, please provide a valid VAT invoice for this 'service'.
    5. Please provide a copy of the signs that you can evidence were on site & locations of all signs at the site as well as all photographs taken of this vehicle.


    The claimant has responded on his letter dated 31/01/2017 refusing to provide the documents requested.Withholding any relevant photos of the car, particularly the windscreen and dashboard, and the signage terms, despite being asked for by the Defendant at the outset, is against the SRA code as well as contrary to the ‘overiding objective’ in the pre action protocol.

    - As Gladsones are a firm of solicitors whose Directors also run the IPC Trade Body and deal with private parking issues every single day of the week there can be no excuse for these omissions.

    The Defendant asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.
    (19) In the pre court stage the Claimant’s solicitor refused to provide me with the necessary information I requested in order to defend myself against the alleged debt.
    They did not send me a Letter before Action that complied with the Practice direction on pre-action conduct. The Letter before Action can be seen to miss the following information
    a) A clear summary of facts on which the claim is based.
    b) A list of the relevant documents on which your client intends to rely.
    c) How the “charge amount” of 160 pounds has been calculated and justified.
    d) Any form of possible negotiation or ADR offered.
    (20) I suggest that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.
    (21) If the court is minded to accept that the Claimant has standing then I submit that the signs on site at the time of the alleged event were insufficient in terms of their numbers, distribution, wording and lighting to reasonably convey a contractual obligation and did not in any event at the time comply with the requirements of the Code of Practice of the Independent Parking Committee’s Accredited Operators Scheme a signatory to which the Claimant was at the relevant time.
    - It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the Beavis case:
    a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
    b) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
    c) The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.
    d) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
    e) Absent the elements of a contract, there can be no breach of contract.
    f) It is denied that the signs on display fall under any of the classes in Schedule 1 or Schedule 3 of The Town and Country Planning (Control of Advertisements) (England) Regulations 2007 or that the Claimant has advertisement consent for the signs.
    g) The Claimant is therefore put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.
    h) In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.
    (22)It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time/costs in dealing with this matter.

    The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons and I respectfully ask that the court dismiss the claim
    I believe the facts contained in this Defence Statement are true
Page 6
    • Loadsofchildren123
    • By Loadsofchildren123 23rd Nov 17, 11:34 AM
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    Loadsofchildren123
    Normal costs provisions are set out in Rule 44 - PD 44 para 9.5(4) is where it says you must serve the costs schedule and file it at court, at least 24 hours in advance.


    However, this is a small claims track case, to which special rules apply. Rule 46.11 specifically says that Rule 27 contains special rules about, inter alia, the procedure for assessing costs in small track claims (and as I've already explained, the two different ways of assessing are "summary" assessment, ie a fixed sum, or "detailed" assessment, which I call "normal" in a previous post, ie an order that your costs are to be paid in an unspecified amount, which leaves the figure to be later decided upon by the court or agreed between the parties).


    If you then go to rule 27, 27.14(2)(g) says that unreasonable costs will be summarily assessed - but nowhere in R 27 or PD 27 does it say that a costs schedule has to be filed as per R 44, in order for the court to have the power to make a summary assessment.


    So if the C argues that you failed to serve the costs schedule, argue that under Rule 27.14(2)(g) the court has an inherent power to order a summary assessment and the requirement to file/serve a schedule set out in PD 44 does not apply in small claims.


    Having said that, it's a bit unclear and so that is why we always advise to comply with Rule/PD 44 by filing and serving the schedule at least 24 hours in advance of the hearing.
    • Sassii
    • By Sassii 23rd Nov 17, 11:12 PM
    • 154 Posts
    • 95 Thanks
    Sassii
    Sassi can you show us what you are sending now? Base it on what Johnersh & LOC123 said.
    Originally posted by Coupon-mad
    Please find below amended letter for stuck out the set aside case, hopefully no mistakes. Thanks all

    I am xxxx and I am the Defendant in this matter. I received a court Notice of Hearing letter dated xxxx along with the Claimant set aside application N244.
    I politely ask the court to struck out the Claimant set aside application. for below reasons:

    1- In section 3 of the set aside application The Claimant basis for not attend the hearing listed on xxxx are ’’due to administrative error of Gladstones Solicitors Ltd’’. That is not a good reason for not attending the court hearing under CPR 27.11(3(a)) as:

    a- The Claimant did not attend Court is attributable to administrative error not as a result of any prejudice in connection with the documentary evidence. Administrative error, particularly such errors in the context of a party that is professionally represented are not good reasons to set aside an Order of the Court. That was specifically addressed in Denton v TH White Ltd [2014].

    b- In Denton v TH White Ltd [2014] case The Court of Appeal (Civil Division) said ‘’ But mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason. We understand that solicitors may be under pressure and have too much work. It may be that this is what occurred in the present case. But that will rarely be a good reason. Solicitors cannot take on too much work and expect to be able to persuade a court that this is a good reason for their failure to meet deadlines. They should either delegate the work to others in their firm or, if they are unable to do this, they should not take on the work at all. This may seem harsh especially at a time when some solicitors are facing serious financial pressures. But the need to comply with rules, practice directions and court orders is essential if litigation is to be conducted in an efficient manner’’.

    c- The Court of Appeal also has held that the stricter approach to compliance with rules and directions made under the CPR, set out in Mitchell v News Group Newspapers Ltd [2014] 1 W.L.R. 795, and Denton v TH White Ltd [2014] 1 W.L.R. 3926, applies equally to other cases, e.g. in the tax tribunals. In BPP Holdings v The Commissioners for Her Majesty's Revenue and Customs the Court of Appeal allowed BPP’s appeal from the Upper Tribunal, and thus debarred HMRC from further participation in the underlying VAT appeal in the First-tier tribunal, by reason of HMRC’s unjustified non-compliance with an order directing them to provide proper particulars of their case.

    d- It’s the responsibility of the Claimant & his Solicitor to employ professionals knows what priority issue is & what is not.

    e- If the Claimant solicitors made an administrative error then the correct course of action from the Claimant is to sue his solicitors in negligence, why should an innocent Defendant be prejudiced by their negligent actions?

    f- The Defendant, as Individual, complied with the order dated xxxx & attended the hearing on time so there were no reasons why the professional Claimant or his professional Solicitor can’t do that.

    2- Even had the Claimant been represented, there was no prospect of defending a costs order wholly. The claim had been struck out. No evidence is before the Court that the Claimant would have been able to defend the costs. The Defendant filed his papers at Court and was entitled to assume that the Claimant would be served with the same by the Court. It is incorrect and misleading to refer to the merits of any argument in the substantive claim, where this was not the issue before the Court at the costs hearing (the former having already concluded following the strike out).

    3- It was clear from court order dated xxxx the claimant has to pay to court not to email to court asking them to get the trial fees by other ways. This is a non-compliance of the court order as it is breach of ‘’unless otherwise ordered’’. It’s the responsibility of the Claimant, not court reasonability, to be sure the payment lodged to court on time and the Claimant can simply call the court office to be sure that happened but he chose not to do that. That is can’t be considered as an administrative error.

    4- The Claimant Witness Statement didn’t arrived in full to the court on time as at the hearing on xxxx, which I attended & the Claimant chose not to attend, there were no documents from the Claimant in the front of the judge and the judge clearly state that ‘’the Claimant chose to be silent by not attending or send any documents support his case’’.

    5- The Romford county court office in phone call on xxxx told the Defendant the Claimant Witness Statement lodged to court on xxxx but it was just cover letter and they can’t find any other documents. That what the defendant received with the Claimant set aside application just a cover letter.

    6- In section 10 of the Claimant set aside application, he alleged that his Witness Statement served to The Defendant representing an email to prove that. The Defendant like to explain the below points:

    a- The Defendant never served with the Claimant Witness statement up to now and never received that alleged Claimant Witness Statement email.

    b- Technically the CPR PD part 6A, 4.1 & 4.2, requirements when effecting electronic service mandate a written or telephone enquiry to obtain permission and specifically enquiries regarding the server's ability to handle attachments. Presumably to avoid exactly this type of situation. The Defendant confirm that the Claimant or his solicitor never contacted him to get that permission and The Defendant strictly ask the Claimant & his solicitor to provide a proof they get a permission from the Defendant for that.

    c- That email address Claimant’s solicitor saying the Witness Statement was sent from is different from the solicitor email used in his N180 application form (attached).

    d- As per that alleged Claimant’s Solicitor email, Claimant was going to depend on his Witness Statement only, as there were no mentioned to any evidences attached to the Claimant email.(attached)

    7- How likely is it that the professional Claimant & his professional solicitor failed to receive or send everything in full, on time or by the right way and compound those errors by not pay court fees on time, not filing a Witness Statement to the court or the Defendant, and not attending the court hearing?. That is not reasonable and not plausible; more likely is that the Claimant is unhappy at the order against them for additional costs due to their unreasonable conduct, and now seeks a second bite at the cherry. That is misuse, abuse & shows disrespect of the court, which should not allow such conduct and should apply the strict principles in .


    Yours faithfully,
    Last edited by Sassii; 24-11-2017 at 7:37 AM.
    • Loadsofchildren123
    • By Loadsofchildren123 24th Nov 17, 10:34 AM
    • 1,879 Posts
    • 3,068 Thanks
    Loadsofchildren123
    Please find below amended letter for stuck out the set aside case, hopefully no mistakes. Thanks all

    I am xxxx and I am the Defendant in this matter. I received a court Notice of Hearing letter dated xxxx along with the Claimant's set aside application N244.

    I politely ask the court to strike out the Claimant's application. for the following reasons:

    1- In section 3 of the set aside application The Claimant admits that the reason it did not attend the hearing listed on xxxx was ’’due to administrative error" of its Solicitors’’. That is surely a matter between the Claimant and its solicitor (which will have professional indemnity insurance in respect of negligent actions on its part, including "administrative errors" which lead it to miss court hearings leading to adverse orders) and this not a "good reason" under CPR 27.11(3(a)) as:

    a- The Claimant's failure to attend is attributable solely to an administrative error not as a result of anything else, least of all in connection with anything I did or failed to do (in particular it is not connected with the documentary evidence).

    b- The fact that an administrative error, particularly such errors in the context of a party that is professionally represented, is not a good reason to set aside an Order of the Court was specifically addressed in Denton v TH White Ltd [2014], in which the Court of Appeal (Civil Division) said ‘’ But mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason. We understand that solicitors may be under pressure and have too much work. It may be that this is what occurred in the present case. But that will rarely be a good reason. Solicitors cannot take on too much work and expect to be able to persuade a court that this is a good reason for their failure to meet deadlines. They should either delegate the work to others in their firm or, if they are unable to do this, they should not take on the work at all. This may seem harsh especially at a time when some solicitors are facing serious financial pressures. But the need to comply with rules, practice directions and court orders is essential if litigation is to be conducted in an efficient manner’’. sassii can you just check the start of this quote, the first few words seem wrong

    c- The Court of Appeal also has held that the stricter approach to compliance with rules and directions made under the CPR, set out in Mitchell v News Group Newspapers Ltd [2014] 1 W.L.R. 795, and Denton v TH White Ltd [2014] 1 W.L.R. 3926, applies equally to other cases, e.g. in the tax tribunals. In BPP Holdings v The Commissioners for Her Majesty's Revenue and Customs the Court of Appeal allowed BPP’s appeal from the Upper Tribunal, and thus debarred HMRC from further participation in the underlying VAT appeal in the First-tier tribunal, by reason of HMRC’s unjustified non-compliance with an order directing them to provide proper particulars of their case.

    d- It’s the responsibility of the Claimant & its Solicitor to be aware of court deadlines and hearings, and to comply with/attend them. I should not be prejudiced by an (apparently) negligent failure to attend a hearing of which the Claimant's solicitor admits it was aware but did not attend due to an error on its part.

    e- If the Claimant solicitors made an administrative error then the correct course of action from the Claimant is to seek recompense from its solicitors due to their negligence rather than to prejudice an innocent Defendant

    f- The Defendant, as Individual, complied with the order dated xxxx & attended the hearing on time and there is no reason why the professional Claimant or his professional Solicitor did not, other than the solicitors' "administrative error" which would appear to have been negligence on its part.

    2- Even had the Claimant been represented, there was no prospect of defending a costs order wholly. The claim had been struck out. No evidence is before the Court that the Claimant would have been able to defend the costs. The Defendant filed his papers at Court and was entitled to assume that the Claimant would be served with the same by the Court. It is incorrect and misleading to refer to the merits of any argument in the substantive claim, where this was not the issue before the Court at the costs hearing (the former having already concluded following the strike out).

    3- It was clear from court order dated xxxx the claimant has to pay the court fee, not to email to court asking them to get the trial fees by other ways. This is a non-compliance of the court order as it is breach of ‘’unless otherwise ordered’’. It’s the responsibility of the Claimant, not court reasonability, to be sure the payment lodged to court on time and the Claimant can simply call the court office to be sure that happened but he chose not to do that. This cannot be considered an "administrative error".

    4- The Claimant Witness Statement didn’t arrived in full to the court on time as at the hearing on xxxx, which I attended & the Claimant chose not to attend, there were no documents from the Claimant in the front of the judge and the judge clearly state that ‘’the Claimant chose to be silent by not attending or send any documents support his case’’.

    5- The Romford county court office in phone call on xxxx told the Defendant the Claimant Witness Statement lodged at court on xxxx was just a cover letter and they could not find any other documents. That what the defendant received with the Claimant set aside application just a cover letter. the Claimant has therefore failed to file any evidence in support of its application.

    6- In section 10 of the Claimant's set aside application, it alleged that its Witness Statement (in respect of the main claim) was served on The Defendant and it produces an email which it asserts evidences service. I make the following points:

    a- I was never served with the Claimant Witness statement up to now and confirm that I never received the email it was claimed was sent to me.

    b- Although I never received it, in any event CPR PD 6A, 4.1 & 4.2, requires a party effecting electronic service to obtain permission and to enquire about the server's ability to handle attachments. Presumably to avoid exactly this type of situation. The Claimant or its solicitor never contacted me to seek my consent to electronic service nor to enquire about my ability to receive attachments. I put the Claimant & its solicitor to full proof that they obtained my permission and that the email was delivered to and received by me get a permission from the Defendant for that.

    c- That email address Claimant’s solicitor says it used to send the Witness Statement was is different from the email used to send me in his N180 application form (attached).

    d- As per that alleged Claimant’s Solicitor email, Claimant was going to depend on his Witness Statement only, as there were no mentioned to any evidences attached to the Claimant email.(attached) I don't understand the point being made here Sassii?


    e. the court has already confirmed that it did not receive any Witness Statement filed by the Claimant.


    7- It is an unfeasible coincidence that the professional Claimant & its professional solicitor failed to both send and receive everything in full, on time or by the right way and compounded those errors by not pay court fees on time, not filing a Witness Statement to the court or the Defendant, and not attending the court hearing?. That is simply implausible; it is more likely is that the Claimant is unhappy at the order against them for additional costs due to their unreasonable conduct, and now seeks a second bite at the cherry. That is misuse and abuse of the court system and its rules & shows disrespect of the court, which should not allow such conduct and should apply the strict principles in is there some wording missing here??? do you mean the rules and the principles set out in Denton?.


    Yours faithfully,
    Originally posted by Sassii
    some comments
    • Johnersh
    • By Johnersh 24th Nov 17, 6:44 PM
    • 781 Posts
    • 1,471 Thanks
    Johnersh
    If you then go to rule 27, 27.14(2)(g) says that unreasonable costs will be summarily assessed - but nowhere in R 27 or PD 27 does it say that a costs schedule has to be filed as per R 44, in order for the court to have the power to make a summary assessment.
    Just to confirm, the White Book (CPR) says nothing in Part 27 about filing a schedule of costs. Indeed the very point about unreasonable costs is that they are a penalty and are likely to be the exception not the norm.

    As LoadsofChildren123 points out the unreasonable costs claim will, I hope, get Sassii home. Those provisions merely say that unreasonable costs can be summarily assessed. The rules for summary assessment (unsurprisingly, but unhelpfully) do not refer to the small claims track at all. Thus one may infer that the requirement to serve a schedule is optional.

    The basis for the advice here to file a schedule of costs is, I believe, simply that if everyone has had one in good time, there is both argument to support the sums claimed and less argument against them in terms of late notice of the costs/procedural unfairness.

    The commentary in the CPR at Part 27 provides for routine fixed costs associated with issue and the £95 loss of earnings, travel etc. Interestingly, travel expenses are unlimited.

    It cannot be that anything turns on any failure to serve a schedule of costs because if the Court Order wasn't placed on file at Gladstones, it seems unlikely a costs schedule would be, even if it had been served. If Gladstones had attended before the Court they would have been able to make any representations.


    A little bit of research...
    My lot still use cheques, but horses for courses.... The system Gladstones use - Fee Account should allow automatic withdrawal of the Court fee immediately that the documents are lodged. If the Court have not been able to withdraw the fee that means one of the following:

    (i) their Fee Account contained insufficient credit
    (iii) the Fee Account number provided to the Court was incorrect.

    I suspect the Order was ignored because the fee earner thought it was standard wording and the fee would be paid automatically.

    The statement lodged at Court addresses none of the above points, which are the only explanations I can think of as to why a payment would not go through. HMCTS are usually excellent at processing payments. Simply to say that an email was sent doesn't cut it in my view. The sending of an email is probably insufficient if the Claimant has not stopped to check the account is in credit and the correct information has been provided to the Court. It should also be noted that weekly and monthly itemised invoicing is available. Gladstones could have checked at any point from directions through to strike out that the fee had been paid. This situation has arisen for want of adequate checking. I refer to the handy HMCTS brochures that the judge may like to read.

    http://www.keithetherington.co.uk/downloads/files/HMCTS%20fee%20account%20flyer.pdf
    https://formfinder.hmctsformfinder.justice.gov.uk/fee-account-eng.pdf
    • Sassii
    • By Sassii 25th Nov 17, 9:41 PM
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    Sassii
    Thanks v much Loadsofchildren123 for your comments and highly appreciate your correction.

    sassii can you just check the start of this quote, the first few words seem wrong
    Originally posted by Loadsofchildren123
    full paragraph from Denton Transcript below:

    41. If the non-compliance cannot be characterised as trivial, then the burden is on the defaulting party to persuade the court to grant relief. The court will want to consider why the default occurred. If there is a good reason for it, the court will be likely to decide that relief should be granted. For example, if the reason why a document was not filed with the court was that the party or his solicitor suffered from a debilitating illness or was involved in an accident, then, depending on the circumstances, that may constitute a good reason. Later developments in the course of the litigation process are likely to be a good reason if they show that the period for compliance originally imposed was unreasonable, although the period seemed to be reasonable at the time and could not realistically have been the subject of an appeal. But mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason. We understand that solicitors may be under pressure and have too much work. It may be that this is what occurred in the present case. But that will rarely be a good reason. Solicitors cannot take on too much work and expect to be able to persuade a court that this is a good reason for their failure to meet deadlines. They should either delegate the work to others in their firm or, if they are unable to do this, they should not take on the work at all. This may seem harsh especially at a time when some solicitors are facing serious financial pressures. But the need to comply with rules, practice directions and court orders is essential if litigation is to be conducted in an efficient manner. If departures are tolerated, then the relaxed approach to civil litigation which the Jackson reforms were intended to change will continue. We should add that applications for an extension of time made before time has expired will be looked upon more favourably than applications for relief from sanction made after the event."

    d- As per that alleged Claimant’s Solicitor email, Claimant was going to depend on his Witness Statement only, as there were no mentioned to any evidences attached to the Claimant email.(attached) I don't understand the point being made here Sassii?
    Originally posted by Loadsofchildren123
    below is the link to Gladstone email. They didn't mention any thing about evidences so I assumed they didn't send any and will depend only on WS.

    https://www.keepandshare.com/doc16/19832/epson022-pdf-39k?da=y
    • Johnersh
    • By Johnersh 25th Nov 17, 11:17 PM
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    Johnersh
    Removed - comments relating to another factual matrix posted to this thread in error.
    Last edited by Johnersh; 26-11-2017 at 12:08 AM.
    • logician
    • By logician 25th Nov 17, 11:46 PM
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    logician
    You'll have to decide whether to fight to a hearing or whether you want to try and make some sort of payment linked to an agreement to set aside a CCJ

    Were I to defend this, I'd do a statement AND a defence. My statement would explain (a) what happened and (b) why I didn't receive court papers.

    I would also refer to the tests in the court rules at CPR 13.3 and append a full defence to show that the case is defensible.

    Questions
    1. Is that the sign you saw and read - often parking eye use different signs at the entrance to the car park?
    2. Why, if you can pay by phone, did you need to get change? Not a criticism, but that will, I'd imagine, be raised by the claimant.
    Originally posted by Johnersh

    @ Johnersh - I know it is Saturday night and late but your post above makes no sense on this thread. Were you intending to post this on a different thread????

    I have only skim read the whole thread and docs but clearly the following apply.

    Firstly this is a residential case - not pay and display
    Secondly it is not Parking Eye
    Thirdly it is PCM/Gladstones who are attempting to appeal the judgment made for costs of £1,500 in favour of the OP and his/her costs only hearing after the case was struck out due to non payment of the hearing fee.
    • Johnersh
    • By Johnersh 26th Nov 17, 12:10 AM
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    Johnersh
    Cheers. Must've flicked between threads. I'm on the mobile so harder to scroll the thread. I've reposted where it should be.
    • The Deep
    • By The Deep 26th Nov 17, 11:17 AM
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    The Deep
    Why people use small devices without proper keyboards I shall never understand. c
    You never know how far you can go until you go too far.
    • Loadsofchildren123
    • By Loadsofchildren123 26th Nov 17, 2:09 PM
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    Loadsofchildren123
    Point d in your post 105. I think you must mean documents rather than evidence. A WS is evidence, and they claimed to attach one which they didn't send you. Apart from a WS each party is allowed to rely on documents, and they haven't referred to any of those.
    Usually from a PPC you'd expect the documents to form part of the WS (as an exhibit) and the email wouldn't have referred separately to an exhibit because it's part of the WS.
    I'm not sure this point has any teeth.
    • Sassii
    • By Sassii 3rd Jan 18, 7:48 PM
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    Sassii
    Happy new year for all my friends in MSE.

    As I didn't hear anything from the court for the srick out application, I prepared a WS for the PCM set aside application hearing. One of my friend reviewed the spelling & grammar so hopefully there is no mistakes.
    Last edited by Sassii; 05-01-2018 at 2:56 PM.
    • Sassii
    • By Sassii 4th Jan 18, 7:28 PM
    • 154 Posts
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    Sassii
    Hi All

    Could please someone review the WS.

    Regards

    I am xxxx and I am the Defendant in this matter. I am representing myself due to the cost of a solicitor and due to this I request some leeway.
    (1) This is the Defendant Witness Statement for the court hearing dated xxx allocated after Claimant set aside application.

    (2) The Defendant politely asks the court to consider the attached Defendant costs application.

    (3) The Defendant want to bring to the court attention that there were two court orders for that case as below :
    a- 1st court order: Main claim struck out order dated xxxx, typed on xxx. (Exhibit ps/1)
    b- 2nd court order: Defendant costs reward order dated xxxx, typed on xxxx. (Exhibit ps/2)

    (4) The Claimant asked in his set aside application dated xxx to set aside only the 2nd court order dated xxxx.

    (5) As the Claimant didn’t ask to set aside or to appeal the 1st court order, although he had the time to do so, he confessed that the Defendant didn’t owe any money to him so there was no case from beginning and he confessed that the court trial fees didn’t pay on time.

    (6) The Claimant trying to mislead the Court & Defendant by support fake documents & not saying the truth as in section 10 of his set aside application the Claimant confirmed he filed & served Documents, including witness statement, to the court & to the Defendant on xxxx providing copy of cover letter page of his Witness Statement and copy of email cover page to Defendant which it asserts evidences service (Exhibit ps/3).

    So the Defendant would like to explain the below:

    a- The xxxx county court office in phone calls on xxxx & on xxxx told the Defendant they never received any Claimant’s Witness Statement (in respect of the main claim) and the one recorded in the court system was the Defendant witness statement but mistakenly lodged in the system as Claimant witness statement (Correspondences between the court & the Defendant attached, Exhibit ps/4). The Claimant has therefore failed to file any evidence in support of its application.

    b- On the court hearing dated xxxx, which I attended & the Claimant chose not to attend, there were no documents from the Claimant in the front of the judge and the judge clearly state that ‘’the Claimant chose to be silent by not attending or send any documents supporting his case’’.

    c- The Defendant never served with any of the Claimant Witness statement up to now and he never received the email alleged claimed was sent to him.

    d- Although the Defendant never received that email, in any event CPR27 PD 6A, 4.1 & 4.2, requires a party effecting electronic service to obtain permission and to enquire about the server's ability to handle attachments. Presumably to avoid exactly this type of situation. The Claimant or its solicitor never contacted the Defendant to seek his consent to electronic service nor to enquire about his ability to receive attachments. I put the Claimant & its solicitor to full proof that they obtained my permission and that the email was delivered to and received by me.

    e- That email address Claimant’s solicitor said it used to send the Witness Statement was different from the email used in his N180 application form (Exhibit ps/5).

    (7) In section 3 of the set aside application The Claimant admits that the reason it did not attend the hearing listed on xxxx was ’’due to administrative error" of its Solicitors’’. That is surely a matter between the Claimant and its solicitor (which will have professional indemnity insurance in respect of negligent actions on its part, including "administrative errors" which lead it to miss court hearings leading to adverse orders) and this not a "good reason" under CPR 27.11(3(a)) as:

    a- The Claimant's failure to attend is attributable solely to an administrative error not as a result of anything else, least of all in connection with anything I did or failed to do (in particular it is not connected with the documentary evidence).

    b- The fact that an administrative error, particularly such errors in the context of a party that is professionally represented, is not a good reason to set aside an Order of the Court was specifically addressed in Denton v TH White Ltd [2014] (Exhibit ps/8), in which the Court of Appeal (Civil Division) said ‘’ But mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason. We understand that solicitors may be under pressure and have too much work. It may be that this is what occurred in the present case. But that will rarely be a good reason. Solicitors cannot take on too much work and expect to be able to persuade a court that this is a good reason for their failure to meet deadlines. They should either delegate the work to others in their firm or, if they are unable to do this, they should not take on the work at all. This may seem harsh especially at a time when some solicitors are facing serious financial pressures. But the need to comply with rules, practice directions and court orders is essential if litigation is to be conducted in an efficient manner’’.

    c- The Court of Appeal also has held that the stricter approach to compliance with rules and directions made under the CPR, set out in Mitchell v News Group Newspapers Ltd [2014] 1 W.L.R. 795 (Exhibit ps/8), and Denton v TH White Ltd [2014] 1 W.L.R. 3926, applies equally to other cases, e.g. in the tax tribunals. In BPP Holdings v The Commissioners for Her Majesty's Revenue and Customs (Exhibit ps/8) the Court of Appeal allowed BPP’s appeal from the Upper Tribunal, and thus debarred HMRC from further participation in the underlying VAT appeal in the First-tier tribunal, by reason of HMRC’s unjustified non-compliance with an order directing them to provide proper particulars of their case.

    d- It’s the responsibility of the Claimant & its Solicitor to be aware of court deadlines and hearings, and to comply with/attend them. I should not be prejudiced by an (apparently) negligent failure to attend a hearing of which the Claimant's solicitor admits it was aware but did not attend due to an error on its part.

    e- If the Claimant solicitors made an administrative error then the correct course of action from the Claimant is to seek recompense from its solicitors due to their negligence rather than to prejudice an innocent Defendant.

    f- The Defendant, as Individual, complied with the order dated xxxx & attended the hearing on time and there is no reason why the professional Claimant or his professional Solicitor did not, other than the solicitors' "administrative error" which would appear to have been negligence on its part.

    (8) Even had the Claimant been represented, there was no prospect of defending a costs order wholly. The claim had been struck out. No evidence is before the Court that the Claimant would have been able to defend the costs. It is incorrect and misleading to refer to the merits of any argument in the substantive claim, where this was not the issue before the Court at the costs hearing (the former having already concluded following the strike out).

    (9) It was clear from Court Notice of Allocation to Small Claims Track (Hearing) dated xxxx (Exhibit ps/6) , in respect of the main claim, the claimant has to pay the court fee, not to email to court asking them to get the trial fees by other ways. This is a non-compliance of the court order as it is breach of ‘’unless otherwise ordered’’. It’s the responsibility of the Claimant, not court responsibility, to be sure the payment lodged to court on time. This cannot be considered an "administrative error".

    (10) It is an unfeasible coincidence that the professional Claimant & its professional solicitor failed to both send and receive everything in full, on time or by the right way and compounded those errors by not pay court fees on time, not filing a Witness Statement to the court or the Defendant, and not attending the court hearing?. That is simply implausible; it is more likely is that the Claimant is unhappy at the order against them for additional costs due to their unreasonable conduct, and now seeks a second bite at the cherry. That is misuse and abuse of the court system and its rules & shows disrespect of the court, which should not allow such conduct and should apply the strict principles set out in Denton case?.

    (11) The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details or even checking for a true cause of action. HMCS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.

    (12) I have reason to believe that this set aside application that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

    (13) I suggest that parking companies using the small claims track as a form of aggressive, automated debt collection and that is not something the courts should be seen to support.

    (14) If the court is minded to accept that the Claimant set aside application, the defendant will ask for full costs of costs application for the court hearing dated xxxx & hearing dated xxxx & for future costs

    I believe the facts stated in this Witness Statement are true.
    Last edited by Sassii; 15-01-2018 at 12:59 PM.
    • Coupon-mad
    • By Coupon-mad 4th Jan 18, 11:02 PM
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    Coupon-mad
    Looks good to me.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Sassii
    • By Sassii 8th Jan 18, 9:45 AM
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    Sassii
    Do I have to send the WS & costs application to Gladstones?. The set aside court hearing allocation letter doesn't mention any thing about obligation on me to do that & also I didn't receive any WS from Gladstones.
    • nosferatu1001
    • By nosferatu1001 8th Jan 18, 10:14 AM
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    nosferatu1001
    If in doubt, send to both the court and the claimant. Then they cannot complain

    If you dont have anything from GS, I thought that was already raised above, when you said no WS was attached?
    • Sassii
    • By Sassii 8th Jan 18, 10:19 AM
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    Sassii
    If you dont have anything from GS, I thought that was already raised above, when you said no WS was attached?
    Originally posted by nosferatu1001
    I think they will send a WS for the set aside application hearing & I think they will not serve me with a copy as they did before to surprise me at the hearing to hide information from me.
    • nosferatu1001
    • By nosferatu1001 8th Jan 18, 10:23 AM
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    nosferatu1001
    OK your 23rd November pot was about you opposing their application to strike out the costs hearing result, from what I could see

    Have you spoken to the court about the current status of the C set aside app? That would be prudent. THEY will know whereas we can guess.
    • Sassii
    • By Sassii 8th Jan 18, 3:00 PM
    • 154 Posts
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    Sassii

    Have you spoken to the court about the current status of the C set aside app? That would be prudent. THEY will know whereas we can guess.
    Originally posted by nosferatu1001
    I spoken to court several times last month and today and they said no decision from the judge appear in their system yet so as hearing this week do I need to send my WS to Gladstones although I got nothing from them yet?
    • nosferatu1001
    • By nosferatu1001 8th Jan 18, 4:14 PM
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    nosferatu1001
    As told
    Assume you send to both sides Alwsys.

    We’re yo told when ws had to be in by?
    • Sassii
    • By Sassii 10th Jan 18, 10:52 AM
    • 154 Posts
    • 95 Thanks
    Sassii
    Hi, I'm after the PD saying the WS / Documents to be filed 24 hrs before court hearing. Any one can guide me please?.

    Regards
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