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  • FIRST POST
    • Peperlini
    • By Peperlini 27th Jun 17, 5:12 PM
    • 35Posts
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    Peperlini
    Civil Enforcement (CEL) Defence - Help please
    • #1
    • 27th Jun 17, 5:12 PM
    Civil Enforcement (CEL) Defence - Help please 27th Jun 17 at 5:12 PM
    I have read tonnes of threads drafting CEL Defence and have to say you guys are amazing, this resource has been invaluable to me!


    To give you a bit of background.
    I tried to pay by phone for my parking but the payment would not go through. With no option to pay by cash I decided to leave the car park (after approx. 15 mins).


    27 days later I received 'PCN' invoice from Civil Enforcement £100
    I wrote to them to appeal on grounds that the automated telephone system failed and the 'PCN' or notice to keeper exceeded the 14 days.
    I never received a response to this letter nor a POPLA code to appeal further
    3 months later I got the standard hassling letters from ZZPS followed by Letters from Wright Hassle (no pun intended there I'm sure) I ignored these letters.
    14th June I received County Court Claim signed by Claimants Legal representative (no signature) and a day or two later some additional particulars of claim signed by the infamous Mr Cohen. I did not receive a LBA or LBCCC


    ...so I have taken a stab at my defence, lifting all the relevant parts from other CEL defence threads that I could find, but before I email the signed pdf to the county court email address I was hoping you guys could take a look and give me any feedback.


    I hope I am posting this correctly, this is the first time I have ever used a forum so please forgive me if this is too long for one post.




    In the County Court Business Centre
    Claim Number XXX Between:
    Civil Enforcement Limited (Claimant) v XXX (Defendant)






    Defence Statement




    I am XXX, the Defendant in this matter and the registered keeper of vehicle XXX. I currently reside at XXX.


    I deny I am liable to the Claimant for the entirety of the claim on the following grounds, any of which are fatal to the Claimant’s case:
    1. The Claim Form issued on the 12th June 2017 by Civil Enforcement Limited was not correctly filed under The Practice Direction as it was not signed by a legal person. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by “Civil Enforcement Limited” as the Claimant’s Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

    2. This Claimant has not complied with pre-court protocol. And as an example as to why this prevents a full defence being filed at this time, 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.



    a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.


    b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.


    c) The Schedule of information is sparse of detailed information.


    d) The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. The Claim form Particulars did not contain any evidence of contravention or photographs. Furthermore, the due date of the purported £249.81 sum is listed as due on 15th September 2016, but the alleged debt did not exist on that date as the PCN was not issued until 12th October 2017 (exceeding the 14 day limit) and was for £100.No sum could have been outstanding on the date stated in the Particulars of Claim that are therefore untrue


    e) The additional particulars of claim are signed purportedly by Ashley Cohen, Mr Cohen was reported to sign off witness statements under London Councils POPLA on behalf of landowners, for CEL POPLA cases falsely stating authority. It is submitted that he is a director of another company, Bemrose Mobile Limited which supplies the pay by phone payment methods for parking. Mr Cohen was a former director of Creative Contracts Ltd but has since resigned. Mr Cohen is therefore put to strict proof the capacity and authority he has in signing such statements.


    f) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.


    g) Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;
    (i) Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
    (ii) A copy of any contract it is alleged was in place (e.g. copies of signage)
    (iii) How any contract was concluded (if by performance, then copies of signage maps in place at the time)
    (iv) Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
    (v) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
    (vi) If charges over and above the initial charge are being claimed, the basis on which this is being claimed
    (vii) If Interest charges are being claimed, the basis on which this is being claimed



    h) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.


    3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012 (“POFA 2012”). Such a notice was not served within 14 days of the parking event and when the notice was served, did not fully comply with statutory wording. The Claimant is therefore unable to hold me liable under the strict ‘keeper liability’ provisions:


    The Claimant did not comply with POFA 2012 and give the registered keeper opportunity at any point to identify the driver. A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered no later than 14 days after the vehicle was parked. No ticket was left on the windscreen and no notice to keeper was sent within the 14 days required to comply with POFA 2012 only a speculative invoice entitled “Parking Charge Notice” which was sent outside of the 14 day period, which did not comply with POFA 2012. This would exclude the registered keeper being liable for any charges.


    Henry Greenslade, lead adjudicator of POPLA in 2015 and an eminent barrister and parking law expert, stated that “However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. ”Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and ‘relevant contract' fairly and adequately communicated, which there was not) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, nor the permit information mentioned a possible £324.81 for outstanding debt and damages.


    4. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee, Ashley Cohen, who drew up the paperwork is remunerated by Civil Enforcement Ltd and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs' were incurred. The Defendant believes that Civil Enforcement Ltd has artificially inflated this claim. They are claiming legal costs when not only is this not permitted (CPR 27.14) but the Defendant believes that they have not incurred legal costs. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. The Defendant denies that the Claimant is entitled to any interest whatsoever. The claimant has not explained how the claim has increased from the original £100 parking notice to £249.81 If the claimant alleges that they claim the cost of its in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the claimant's business plan.

    5. 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.


    6. In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.



    a) The Claimant is 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.


    b) 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.


    c) Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
    (i) Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.
    (ii) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
    (iii) It is believed 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 Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended.
    (iv) 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.
    (v) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.



    d) BPA CoP breaches - this distinguishes this case from the Beavis case:
    (i) the signs were not compliant in terms of the font size, lighting or positioning.
    (ii) the sum pursued exceeds £100.
    (iii) there is / was no compliant landowner contract.


    7. No standing - this distinguishes this case from the Beavis case:
    It is believed Civil Enforcement do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.


    8. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.



    9. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

    10.
    Claimants failure to process the payment is not the responsibility of the defendant, and no parking charge can be due. Driver made a telephone call to 0141 404 0000 at 12.24 pm on the 15th September 2016 to make payment. The call was automated and the driver followed all of the instructions. Evidence of this outgoing call was supplied to Civil Enforcement Ltd on 18th October 2016. This was a technical failure outside of the drivers control and therefore the driver discharges their duty to pay the sum necessary.

    The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:



    a) failed to disclose any cause of action in the incorrectly filed Claim Form issued on 12th June 2017.


    b) Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.


    c) failed to issue a compliant notice to keeper within 14 days under Schedule 4 of the Protection of Freedoms Act 2012 such that Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.


    d) failed to respond to letter from the Defendant dated 18th October 2016 to address the technological failure of the automated payment system.


    e) failed to provide a POPLA code so that the matter could be referred for their decision (in accordance with BPA AOS Code of Practice 22.12)

    The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

    I confirm that the above facts and statements are true to the best of my knowledge and recollection.


    Signed XXX
    Date XXX
Page 3
    • numps
    • By numps 13th Dec 17, 12:43 PM
    • 128 Posts
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    numps
    Well done!
    • beamerguy
    • By beamerguy 13th Dec 17, 12:52 PM
    • 6,742 Posts
    • 8,732 Thanks
    beamerguy
    Great news! - I’ve just confirmed with the court and CEL have sent a discontinuance notice and the hearing has been vacated -hooray it’s over at last!

    However I am inclined to write to the court asking them to award me costs as the claim was unreasonable and vexatious and I know others on here have been successful.

    Thanks a million once again to @Loadsofchildren123 and everyone else on here for the help, advice and continued support!!! I couldn’t have done it without you


    Originally posted by Peperlini
    WELL DONE

    CEL still up to their rubbish tricks, it's about time the courts
    did something about CEL as they are a waste of space
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • Peperlini
    • By Peperlini 19th Dec 17, 11:17 PM
    • 35 Posts
    • 19 Thanks
    Peperlini
    Application for costs
    I’ve decided to try and claim costs from CEL to teach them a bit of a lesson

    @Loadsofchildren123 - I have tried to doctor one of your previous Gladstones ones and have saved it here for review: https://www.dropbox.com/s/gr534iu1h1e9oor/COSTS%20APPLICATION.docx?dl=0

    Couple of questions though:
    1. Should I also include a cover letter to request that the court deals with this on paper without the need for a hearing.
    2. Can I just email this document (and cover letter if applicable) to the county court and if so, do I need to address it to the judge or just sir/madam or the Court manager?

    As always I am ever grateful for the wonderful advice on this forum
    • Peperlini
    • By Peperlini 19th Dec 17, 11:24 PM
    • 35 Posts
    • 19 Thanks
    Peperlini
    Ps
    And if I am successful with the costs I will be sending you a present @Loadsofchildren123

    http://forums.moneysavingexpert.com/member.php?u=2270251
    • Lamilad
    • By Lamilad 19th Dec 17, 11:34 PM
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    • 2,489 Thanks
    Lamilad
    By all means send the email and I wish you the best of luck with it, but I've yet to see an informal request for costs succeed. The response from the court, as far as I am aware, is always the same - that a proper application for a costs hearing should be made, and the relevant fee paid.

    I say this, not to dampen your enthusiasm, but to manage your expectations.

    It's a brilliant letter (as always) from LOC and as strong an argument as anyone could make for costs without a hearing.

    Hope it works!
    • Loadsofchildren123
    • By Loadsofchildren123 19th Dec 17, 11:59 PM
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    Loadsofchildren123
    Can you check that document carefully - eg one para (15?) refers to solicitors (there are none here) and you need to check the para reference at 17 as I’m not sure that’s right.

    Your costs schedule should be more detailed. Check my post on Sassii’s thread (I think this is linked via the newbies thread) and I also posted about this today on another thread. The more you break it down, the more chance you’ll get costs. You’re entitled to costs in relation to reading all their docs, not just preparing your defence.
    I’ll refer you to the primary case law on 27.14(2)(g) costs tomorrow. Give me a nudge if I forget.
    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.
    • Loadsofchildren123
    • By Loadsofchildren123 20th Dec 17, 1:17 PM
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    Loadsofchildren123
    https://kerryunderwood.wordpress.com/2017/05/23/small-claims-unreasonableness-and-costs/


    http://www.bailii.org/ew/cases/EWCA/Civ/2017/269.html


    https://www.lawgazette.co.uk/legal-updates/civil-procedure-unreasonable-conduct-and-costs/5061032.article


    https://keoghs.co.uk/keoghs-insight/aware/costs-orders-for-unreasonable-behaviour-in-small-claims


    some light reading for you! If you are going to seek costs, have a read of these. Judges generally don't like awarding costs under 27.14(2)(g), and if you can throw some law at them you will have a better chance.
    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.
    • Peperlini
    • By Peperlini 21st Dec 17, 12:02 AM
    • 35 Posts
    • 19 Thanks
    Peperlini
    Draft costs application
    Thanks again @Loadsofchildren123

    Interesting reading, especially the last article which states:
    ‘The likelihood of successfully persuading a court to award costs depends upon the facts of each case. However, a court may consider that a party has acted unreasonably in the following situations:

    Pursuing a claim or defence without any real prospect of success;
    A failure to provide adequate supporting documentation;
    Exaggeration of a claim or dishonesty;’

    I think CEL certainly tick all of those boxes!

    I have redrafted my costs application letter using all the other letters I could find (including @bluetoffee1878) and have detailed my costs schedule more thoroughly as suggested.

    I would be ever so grateful if you could take a look and let me know what you think:
    https://www.dropbox.com/s/f6upf4ibb43qf0q/DEFENDANT%E2%80%99S%C2%A0COSTS%20APPLICATION%20REF %20CLAIM%20XXXXX.docx?dl=0
    • Loadsofchildren123
    • By Loadsofchildren123 21st Dec 17, 12:25 PM
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    Loadsofchildren123
    Interesting reading, especially the last article which states:
    ‘The likelihood of successfully persuading a court to award costs depends upon the facts of each case. However, a court may consider that a party has acted unreasonably in the following situations:

    Pursuing a claim or defence without any real prospect of success;
    A failure to provide adequate supporting documentation;
    Exaggeration of a claim or dishonesty;’



    I gave you links to these because, historically, lots and lots of DJs have refused costs orders even when it can be shown that the claim had no prospect of a success. The more info you can produce to persuade a judge of the basis for these costs orders, the more likely you are to get one. So I would read it all carefully, print out copies and make a structured argument. To make your chances better, I would produce a Skeleton solely in relation to costs which brings together the facts and the law - all you have to do then is hand it up and take the judge through it.


    here's one I prepared earlier which you might use as a starting point, although it doesn't go into the ins and outs of R27 costs and that case law and if I were drafting this now I would certainly summarise the law set out in that new case and tie it in to all the examples of unreasonable behaviour.
    https://www.dropbox.com/s/4cn1tbjiim1ycsl/COSTS%20APPLICATION%20updated.docx?dl=0


    You have 2 reasons to seek costs:
    under the pre-action obligations (para 16 of the PD) - and my note quotes the relevant case law - this says that even a successful party can have costs awarded against them if they have ignored the pre-action obligations
    under Rule 27 - add the relevant case law to beef this part up
    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.
    • Loadsofchildren123
    • By Loadsofchildren123 21st Dec 17, 1:59 PM
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    Loadsofchildren123
    Sorry, I've just read back and realised you are writing in for costs, not appearing at a hearing. So my post above is a bit of a nonsense, although you need to take what I said into account in amending your letter in which you see costs.


    You could even do it as a Skeleton Argument on costs, and send it in with a brief letter saying


    Dear Sirs,


    Further to the Claimant's discontinuance of the Claim, I would like to seek a costs order pursuant to Rule 38.5(3). I make my application based on the Claimant's unreasonable behaviour, as provided for in Rule 27.14(2)(g) and based on its failure to comply with its pre-action obligations set out in the Practice Direction - Pre-Action Conduct.


    I enclose a Skeleton Argument which sets out all of the factual matters and case law on which I rely in making this application, together with a schedule of my costs.


    I would ask that this matter is dealt with on the papers [or ask for a hearing - the advantage of that is that they probably won't turn up, so personally I'd ask for a hearing].
    Then end with "I confirm that I have sent a copy of this letter to the Claimant"


    If you want to bypass all of this and avoid an argument, you could make a without prejudice offer that they pay you £x. But then you wouldn't have your fun of slamming them in court.


    My feeling is ask for a hearing and hope they don't turn up, or that they offer you something. But that's easy for me to say because I'm not the one having to take a day off work and attend court (worst thing that can happen is you don't get costs).


    Include in your costs schedule time for attending court (in the event of a costs hearing) and all the time you are spending on the costs application itself. But I think divide up the time clearly between the main proceedings, and the costs issue.
    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.
    • Peperlini
    • By Peperlini 21st Dec 17, 11:03 PM
    • 35 Posts
    • 19 Thanks
    Peperlini
    @Loadsofchildren123 Thanks for all the advice, I've really tried to digest all of the information and links that you kindly provided, however I am feeling pretty out of my depth now and not prepared to face the prospect of a costs hearing. To be honest, I was so relieved that they discontinued and that I don't have to go to court - I know I am being pathetic but was losing a lot of sleep over it.

    Anyway, I like the idea of a simple letter such as @bluetoffee1878 's or making a 'without predudice offer' as you suggested in order to bypass all this but I'm not sure how to go about that - would I just write a letter to Civil enforcement giving them the opportunity to send me a cheque for a lesser amount before submitting the full costs schedule to the court?
    • Peperlini
    • By Peperlini 21st Dec 17, 11:17 PM
    • 35 Posts
    • 19 Thanks
    Peperlini
    PS I take it you didn't think my second attempt at a letter cut the mustard so I have amended it to try and incorporate the points you raised above @Loadsofchildren123 :

    https://www.dropbox.com/s/1myoltllk229g2l/DEFENDANT%E2%80%99S%C2%A0COSTS%20APPLICATION%20REF %20CLAIM%20XXXXX%20%281%29.docx?dl=0

    Any good?
    • Loadsofchildren123
    • By Loadsofchildren123 22nd Dec 17, 11:56 AM
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    Loadsofchildren123
    I think you must refer to the case law in that letter - add a para:
    the C's conduct clearly falls within that contemplated in [name of case and all the references which follow it so the judge can look it up if (s)he wants to] as reaching the threshold of unreasonable behaviour and a costs order should be made.


    Small comments:
    1st par: the reference to the PD here should be to paras 3, 6a and 6c rather than 16 (the ref to 16 in the next para is correct)


    What's the reference to PD paras 22-3 - which PD are we talking about here?


    Para numbered 3- 2.1-5 of what? If it's a rule or a PD say which one.


    para numbered 5 - attach copies of these so the court can see. I think probably also attach a copy of their rubbish LBC and refer to that so the court can see how you were not given any proper information.


    para number 7 - "its ATA Code of Practice" (add ATA). Attach a copy of the relevant extract.


    Enclose any documents you refer to.


    Costs schedule - all looks good, I'd reduce the time for AoS and DQ from 30 minutes to 15, but I'd add a couple of hours to your WS and perhaps some to your defence, they must have taken you longer than that.


    I understand completely that you want to avoid a hearing. I'd feel the same. So add to the letter "I would like the court to deal with this matter on paper without requiring a hearing, which it has the power and discretion to do" and confirm you've sent a copy of everything to the Claimant. I think there's a good chance CEL wouldn't turn up to any hearing, but I understand you want to avoid this altogether.


    I'd send that letter off, and send a copy to CEL with a without prejudice offer saying you'll accept £250. If you beef up the schedule with extra time on drafting documents then it will come out at somewhere around £350 I think.


    I think you should add at the end of the costs schedule: in the event of a court attendance:
    loss of earnings: £95
    Travel and parking: £x
    Time at court: 2 hours


    Just a quick Q. I'm assuming your proceedings were pre-1 October, and so it is the old Practice Direction - Pre-Action Conduct which applies, rather than the new Protocol for Debt Claims?


    Play around with the letter - it's a good letter, but you need to separate out your complaints about the pre-action conduct and the court's powers under para 16 of the pre-action PD from your other costs argument which is that it also has the power to award you costs under R27. As it is now these two arguments are a bit jumbled together. I find that putting headings in helps you to separate out arguments. Say clearly at the start that the court has the power to order costs under two separate provisions, namely ......


    You've provided the case law for one of those (the PD) but not the other (R27) so you definitely need to add in reference to the case law on R27 costs orders (which is in one of my previous posts).
    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.
    • Peperlini
    • By Peperlini 23rd Dec 17, 6:31 PM
    • 35 Posts
    • 19 Thanks
    Peperlini
    Recent case law to beef this up..
    @Loadsofchildren123 - I think I am starting to get the gist of this (slowly). Are you saying that I should add the more recent case law from the Dammerman appeal case in order to support R27? I'm not quite sure how to structure that or which bits to quote, but from the 2nd link you provided on the reading list... http://www.bailii.org/ew/cases/EWCA/Civ/2017/269.html ... I was thinking maybe it would be para 20 that would be relevant? Sorry if these seem like stupid questions, I just get a bit lost with all the legal lingo..
    • Peperlini
    • By Peperlini 23rd Dec 17, 7:21 PM
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    • 19 Thanks
    Peperlini
    Another question:

    If I structure it as a letter and skeleton argument with costs schedule to the court and send a copy to CEL with another cover letter making them a 'without prejudice offer' - should that also be mentioned on the letter to the court? I don't understand what happens if they take me up on the 'without prejudice offer' - would I then have to withdraw my application for costs from the court?
    • Peperlini
    • By Peperlini 23rd Dec 17, 7:26 PM
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    • 19 Thanks
    Peperlini
    Just a quick Q. I'm assuming your proceedings were pre-1 October, and so it is the old Practice Direction - Pre-Action Conduct which applies, rather than the new Protocol for Debt Claims?
    Answer: The CCBC court claim was dated 12th June so I guess this would be the old Practice Direction - Pre-Action Conduct.

    para numbered 5 - attach copies of these so the court can see. I think probably also attach a copy of their rubbish LBC and refer to that so the court can see how you were not given any proper information
    They never sent me a LBC or LBA/LBCCC that I am aware of. I can include copies of 1. my original letter explaining that their phone system would not accept payment and 2. The Formal Part 18 request for information
    • Loadsofchildren123
    • By Loadsofchildren123 24th Dec 17, 2:22 PM
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    Loadsofchildren123
    Don’t mention the offer letter to the court.
    Yes, if they accept offer then they send you the money and you then withdraw the costs claim. But only after payment is received.
    And yes, it’s the old PD that applies to you.

    You quote Dammerman in relation to the R27 argument. Those other cases are the precedents in support of a costs order under the PD. Include in the application argument that they never sent you a LBC so you never had any opportunity to explain your very valid defence.
    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.
    • Castle
    • By Castle 24th Dec 17, 3:07 PM
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    • 1,819 Thanks
    Castle
    Don’t mention the offer letter to the court.
    Yes, if they accept offer then they send you the money and you then withdraw the costs claim. But only after payment is received. And yes, it’s the old PD that applies to you.
    Originally posted by Loadsofchildren123
    Only after the cheque clears!!
    • Peperlini
    • By Peperlini 30th Dec 17, 8:53 PM
    • 35 Posts
    • 19 Thanks
    Peperlini
    I’ve taken another stab at this, adding the case law in support of r27 and restructuring it as you suggested @Loadsofchildren123 so it is now structured as a cover letter with a skeleton argument (using the one you provided as my starting point) and a Costs schedule attached with the extra drafting hours and additional section at the end in case of a court attendance. I’ve also added a ‘without prejudice offer’ letter to CEL at the start. Please can you let me now what you think of this version and any glaring mistakes or omissions that jump out to your expert legal eyes

    https://www.dropbox.com/s/v98ukubo473jz94/COSTS%20APPLICATION%20JAN%202018.docx?dl=0

    Thanks again!
    • Loadsofchildren123
    • By Loadsofchildren123 5th Jan 18, 12:46 PM
    • 1,879 Posts
    • 3,069 Thanks
    Loadsofchildren123
    That all looks pretty good to me.
    In the heading "Post-action conduct", add "pursuant to Rule 27.14(2)(g)"
    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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