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  • FIRST POST
    • plymouth_damo
    • By plymouth_damo 5th Oct 17, 5:29 PM
    • 31Posts
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    plymouth_damo
    HELP! CEL County Court Business Centre Claim (x2)
    • #1
    • 5th Oct 17, 5:29 PM
    HELP! CEL County Court Business Centre Claim (x2) 5th Oct 17 at 5:29 PM
    Hi MSE

    I was wondering if you could help me.

    Have just received a CCBC form from CEL for what I am assuming is a a parking infringement but to be honest the claim is from so long ago I can't remember.

    I have read the newbies thread, here is the particulars of the claim:

    Will put all the particulars of claim below:

    Outstanding Debt and damages
    DATE-DESCRIPTION-AMOUNT-DUE DATE
    17/08/15 ref********** 236.00 18/08/15

    Total Due-236.00
    (ref:ce-service website URL or Tel:01158225020)
    The claimant claims the sum of 276.19 for
    outstanding debt and damages
    including 40.19 interest pursuant to
    s.69 if the county courts Act 1984
    Rate 8.00% pa from dates above to - 02/10/17
    Same rate to judgement or (sooner) payment
    Daily rate to judgement- 0.05
    Total debt and interest due - 276.19
    I will provide the defendant with separate detailed particulars within 14 days after service of the claim form.



    Honestly I have no knowledge or recollection of this infringement, its possible they have written to me in the past regarding this but I tend to ignore all civil parking letters of claim, but I have no recollection of such correspondence being received. I have also since sold that vehicle so am referring to the vehicle I had at the time of alleged claim in my draft defence.

    THEY HAVE ACTUALLY CLAIMED THIS ON TWO SEPARATE CCBC Claim forms with DIFFERENT claim numbers (same reference and amounts)

    I have acknowledged service on BOTH claims extending my deadline to the 28 days via MCOL (and the guidelines on the AOS thread).


    I have found the template CEL defence (June 17) and was wondering if you could help me tailor it, particularly as I have no recollection of any of the details of this infringement and also the fact they have sent out 2 claims, would i need to defend both with the same defence or defend one and claim DUPLICATION on the other?



    In the County Court Business Centre
    Claim Number: ***********

    Between:

    Civil Enforcement Limited v ************

    Defence Statement

    I am *************, the defendant in this matter and was the registered keeper of vehicle ***********. I currently reside at ********************.

    I deny I am liable for the entirety of the claim for each of the following reasons:

    1. The Claim Form issued on the *************** by Civil Enforcement Limited was not
    correctly filed under The Practice Direction as it was not signed by a legal person but signed by “Civil Enforcement Limited (Claimant’s Legal Representative)”.

    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.

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

    f) 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

    g) 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. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.!

    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 as there was no clear, transparent information about how to obtain a permit either inside or outside the site) 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 £276.19 for outstanding debt and damages.

    4. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £40.19 and I deny the Claimant is entitled to any interest whatsoever.

    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 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. No legitimate interest - this distinguishes this case from the Beavis case:
    This Claimant files serial claims regarding sites where they have lost the contract, known as revenge claims and it believed this is one such case. This is not a legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.!

    9. 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.

    10. 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.

    11. In the Beavis case, Mr Beavis was an admitted driver who accepted that he had seen the signs and that a contract existed. None of those facts match this matter.

    12. Due to the length of time, the Defendant has little to no recollection of the days in question, which were unremarkable. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car some years later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

    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 3rd October 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.

    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
    Date



    (Please please, and help and advice would be gratefully received!)
    Last edited by plymouth_damo; 10-10-2017 at 2:37 AM.
Page 1
    • plymouth_damo
    • By plymouth_damo 10th Oct 17, 2:36 AM
    • 31 Posts
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    plymouth_damo
    • #2
    • 10th Oct 17, 2:36 AM
    • #2
    • 10th Oct 17, 2:36 AM
    can anyone please help with this....particularly the fact its been submitted as TWO SEPARATE DUPLICATE claims...can someone take a look at my defence above and also advise about how i go about defending the two separate claims....do I just put the same defence twice or do I put a separate defence for one of them claiming duplication?
    • Lamilad
    • By Lamilad 10th Oct 17, 6:52 AM
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    Lamilad
    • #3
    • 10th Oct 17, 6:52 AM
    • #3
    • 10th Oct 17, 6:52 AM
    So have they issued 2 claims for the same "infringement" or is this 2 separate case?
    • Johnersh
    • By Johnersh 10th Oct 17, 9:13 AM
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    Johnersh
    • #4
    • 10th Oct 17, 9:13 AM
    • #4
    • 10th Oct 17, 9:13 AM
    PPCs use stock wording. Check very carefully that the date/times of the infringement in the particulars of claim section are not different. If they are different dates/times you are obviously defending two claims.

    If there is duplication, you should write the the claimant and invite them to serve a notice of discontinuance in respect of one within 7 days, facing which you will apply to strike out the duplicate as an abuse of process and a waste of court resources - for which you will also claim the costs of the application.
    • plymouth_damo
    • By plymouth_damo 19th Oct 17, 1:28 AM
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    plymouth_damo
    • #5
    • 19th Oct 17, 1:28 AM
    • #5
    • 19th Oct 17, 1:28 AM
    So have they issued 2 claims for the same "infringement" or is this 2 separate case?
    Originally posted by Lamilad
    so this is 2 claims for the same Infringement (the reference number in the particulars of claim are identical, but the claim numbers on the CCBC forms are different.

    Is there a line in my defence I can put in to deal with this (and to reinforce the 'template' defence?
    • plymouth_damo
    • By plymouth_damo 19th Oct 17, 1:30 AM
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    plymouth_damo
    • #6
    • 19th Oct 17, 1:30 AM
    • #6
    • 19th Oct 17, 1:30 AM
    PPCs use stock wording. Check very carefully that the date/times of the infringement in the particulars of claim section are not different. If they are different dates/times you are obviously defending two claims.

    If there is duplication, you should write the the claimant and invite them to serve a notice of discontinuance in respect of one within 7 days, facing which you will apply to strike out the duplicate as an abuse of process and a waste of court resources - for which you will also claim the costs of the application.
    Originally posted by Johnersh
    I can do that, but assuming they don't respond or don't do that, obviously time is ticking so can i put something in my defence to also reference this duplication and if so do I put the same defence (including this part) in both claims?
    • plymouth_damo
    • By plymouth_damo 19th Oct 17, 1:32 AM
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    plymouth_damo
    • #7
    • 19th Oct 17, 1:32 AM
    • #7
    • 19th Oct 17, 1:32 AM
    looking at the overall defence, how does this look? Also bearing in mind in the particulars section they say they were forward more particulars of this claim within 14 days, the claims were issued on the 3rd so this date has now passed on no further information has been received from the claimant...can i put this in the defence also?
    • Johnersh
    • By Johnersh 19th Oct 17, 8:13 AM
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    Johnersh
    • #8
    • 19th Oct 17, 8:13 AM
    • #8
    • 19th Oct 17, 8:13 AM
    Given this wording
    I will provide the defendant with separate detailed particulars within 14 days after service of the claim form.
    Have you now received by post direct from the claimant the complete Particulars of claim? You are under no time pressure to prepare a defence until served with complete Particulars. That may shed more light on matters.

    Assuming two claims continue to be erroneously brought, in ONE only of the two separate defences you will need to prepare (I suggest the one which was issued second) I would add the additional wording in italics below. For clarity I would have headings for each date of alleged infringement in the multiple ticket defence.

    Ticket issued on [date]

    Res Judicata
    This matter is already subject to separate proceedings issued by the claimant at the Northampton County Court under claim number XX17XXX. The Defendant avers that this part of the claim is duplicative of those existing proceedings, is vexatious in its current form and concerns issues likely to have been determined by another court by the date of trial. The claimant should not be permitted to bring this part of the claim.
    Last edited by Johnersh; 19-10-2017 at 8:26 AM.
    • Lamilad
    • By Lamilad 19th Oct 17, 12:30 PM
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    Lamilad
    • #9
    • 19th Oct 17, 12:30 PM
    • #9
    • 19th Oct 17, 12:30 PM
    I will provide the defendant with separate detailed particulars within 14 days after service of the claim form
    Date of service is 5 days after the issue date so they still have time issue the PoC.

    Other than that do as Johnersh says. Will be interesting to see what happens with this
    • plymouth_damo
    • By plymouth_damo 23rd Oct 17, 5:27 PM
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    plymouth_damo
    Date of service is 5 days after the issue date so they still have time issue the PoC.

    Other than that do as Johnersh says. Will be interesting to see what happens with this
    Originally posted by Lamilad
    So 14 days after date of service has now passed, still no written particulars received (for either claim number). Can I put this into my defence to strength it?
    • plymouth_damo
    • By plymouth_damo 23rd Oct 17, 5:30 PM
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    plymouth_damo
    Given this wording

    Have you now received by post direct from the claimant the complete Particulars of claim? You are under no time pressure to prepare a defence until served with complete Particulars. That may shed more light on matters.

    Assuming two claims continue to be erroneously brought, in ONE only of the two separate defences you will need to prepare (I suggest the one which was issued second) I would add the additional wording in italics below. For clarity I would have headings for each date of alleged infringement in the multiple ticket defence.

    Ticket issued on [date]

    Res Judicata
    This matter is already subject to separate proceedings issued by the claimant at the Northampton County Court under claim number XX17XXX. The Defendant avers that this part of the claim is duplicative of those existing proceedings, is vexatious in its current form and concerns issues likely to have been determined by another court by the date of trial. The claimant should not be permitted to bring this part of the claim.
    Originally posted by Johnersh
    THANKYOU, this is very useful and will add it into my existing defence. Will post here before submitting as just want to get clarity also on the fact I haven't received the 'detailed particulars' within 14 days as they stated I would, obviously this will strengthen the defence but not quite sure how to word that.
    • Johnersh
    • By Johnersh 23rd Oct 17, 6:41 PM
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    Johnersh
    I haven't received the 'detailed particulars' within 14 days as they stated I would, obviously this will strengthen the defence but not quite sure how to word that.
    Take the date on the claim form. Add 5 days. That is the service date. Add 14 days. That is the last date for service of the Particulars.

    If there has been a failure to serve Particulars of Claim within the 14 days (and the wording on the claim form in this case expressly states that the particulars are to follow) then CPR Part 7.4 applies. They are out of time to serve Particulars. The CPR rule is there for a reason. You are entitled to certainty and to know the case against you. You are entitled to expect the claim to be progressed expeditiously and put before a judge. It is not correct to say there is no prejudice if particulars are sent late. The longer the delay, the greater the prejudice. If it's only a day overdue, that's unlikely to be sufficient, but the onus is on them.

    In order to remedy their defect, the Claimant must apply for relief from sanctions in CPR 3.9 and in accordance with the test as set out in Denton v TH White That will be costly for them. Even if relief is granted the costs of the application are usually ordered against the defaulting party.

    As I see it, the Defendant cannot apply for default judgment as they are unlikely to be able to serve a certificate of service showing you were served on time (and the partial wording on the claim form is insufficient to found a basis for the claim precisely because it says full particulars will follow). The greater the period of default the less likely it is that the Claimant will get relief.

    I would sit tight and wait for the Particulars. If it gets to a week or two overdue, I would then write to them stating that they are overdue and indicating that if it is their intention to proceed they must apply for relief.
    • plymouth_damo
    • By plymouth_damo 23rd Oct 17, 8:10 PM
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    plymouth_damo
    Take the date on the claim form. Add 5 days. That is the service date. Add 14 days. That is the last date for service of the Particulars.

    If there has been a failure to serve Particulars of Claim within the 14 days (and the wording on the claim form in this case expressly states that the particulars are to follow) then CPR Part 7.4 applies. They are out of time to serve Particulars. The CPR rule is there for a reason. You are entitled to certainty and to know the case against you. You are entitled to expect the claim to be progressed expeditiously and put before a judge. It is not correct to say there is no prejudice if particulars are sent late. The longer the delay, the greater the prejudice. If it's only a day overdue, that's unlikely to be sufficient, but the onus is on them.

    In order to remedy their defect, the Claimant must apply for relief from sanctions in CPR 3.9 and in accordance with the test as set out in Denton v TH White That will be costly for them. Even if relief is granted the costs of the application are usually ordered against the defaulting party.

    As I see it, the Defendant cannot apply for default judgment as they are unlikely to be able to serve a certificate of service showing you were served on time (and the partial wording on the claim form is insufficient to found a basis for the claim precisely because it says full particulars will follow). The greater the period of default the less likely it is that the Claimant will get relief.

    I would sit tight and wait for the Particulars. If it gets to a week or two overdue, I would then write to them stating that they are overdue and indicating that if it is their intention to proceed they must apply for relief.
    Originally posted by Johnersh
    Thankyou for this information. I feel a little uncomfortable though not submitting some kind of defence within my AOS timeframe, just in case for some reason this particular defence point fails.....I have 6 days before my defense deadline. Could this point not be referenced as another point in the defence, just to state that the claim in its entirety is NOT valid (assuming I have not received any further particulars before the deadline to submit) If so, could you (OR ANYONE) help with how I would word that (am guessing referring to CPR 7.4?)
    • Umkomaas
    • By Umkomaas 23rd Oct 17, 8:27 PM
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    Umkomaas
    Johnersh is a lawyer.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • plymouth_damo
    • By plymouth_damo 23rd Oct 17, 8:36 PM
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    plymouth_damo
    Johnersh is a lawyer.
    Originally posted by Umkomaas
    I realise that, and wasn't questioning his advice...was simply asking if its not possible to put the same point into the existing defence and submit within the 28 day timeframe....or does submitting ANY sort of defence then make this particular defence point invalid somehow?

    I am NO legal expert which is why I am asking the question for clarity

    My concern I guess is that I let the 28 days expire without ANY defence submitted, focusing the entire defence on this one point and then CEL move the obtain an uncontested default judgement, is there no possible scenario this would be successful?
    Last edited by plymouth_damo; 23-10-2017 at 8:39 PM.
    • KeithP
    • By KeithP 23rd Oct 17, 8:48 PM
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    KeithP
    My concern I guess is that I let the 28 days expire without ANY defence submitted, focusing the entire defence on this one point and then CEL move the obtain an uncontested default judgement, is there no possible scenario this would be successful?
    Originally posted by plymouth_damo
    How can the 28 days expire?

    It's 28 days from receiving the Particulars of Claim.
    You are yet to receive the Particulars of Claim.
    .
    • Lamilad
    • By Lamilad 23rd Oct 17, 8:51 PM
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    Lamilad
    the problem with filing a defence is the claimant might then argue that you obviously understood the claim well enough to file a defence so there has clearly been no prejudice by their failure to serve full poc in time.

    It may be worth waiting until the last day (33 days after issue) then ringing the court to ask if they have received to 'full' particulars as you haven't and you still have no idea what the claim is about and, as such, cannot write a defence. Say it would appear the claimant has decided not to proceed with the claimant so you would like it to be struck out.

    Have your defence ready to email in straight away just in case they say something unexpected
    • plymouth_damo
    • By plymouth_damo 23rd Oct 17, 9:03 PM
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    plymouth_damo
    How can the 28 days expire?

    It's 28 days from receiving the Particulars of Claim.
    You are yet to receive the Particulars of Claim.
    Originally posted by KeithP
    OK, so maybe it's the process I am not understanding properly here. My understanding was that the you had 14 days from DOS, extended to 28 days on AOS and asking for the extension (which I did)

    If no defence is received within this time the claimant can get a default judgement against me due to my failure to respond to the claim (or in this case claims due to the duplication)

    so the particulars they have submitted at this top of this thread would DEFINITELY not be enough in their current state for this case to proceed? or could a judgement be obtained on just the details they have given me (as sparse as they may be!)

    What if the claimant claims they did send me the details? (and I just never received them...I live in an apartment block for example on on occasion post doesn't always make it to the correct address)

    I just don't want to be caught out by missing a deadline or failure to act.
    • plymouth_damo
    • By plymouth_damo 23rd Oct 17, 9:04 PM
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    plymouth_damo
    the problem with filing a defence is the claimant might then argue that you obviously understood the claim well enough to file a defence so there has clearly been no prejudice by their failure to serve full poc in time.

    It may be worth waiting until the last day (33 days after issue) then ringing the court to ask if they have received to 'full' particulars as you haven't and you still have no idea what the claim is about and, as such, cannot write a defence. Say it would appear the claimant has decided not to proceed with the claimant so you would like it to be struck out.

    Have your defence ready to email in straight away just in case they say something unexpected
    Originally posted by Lamilad
    In this case what is the process for having it struck out (lets say no further particulars have been received by me OR the court) and the deadline to submit my defence has passed, is it just the phone call and ask they to have both claims struck out or do i have to send something in writing?
    • KeithP
    • By KeithP 23rd Oct 17, 9:20 PM
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    KeithP
    In HMCTS leaflet EX303 it says:
    What should I do if I receive notice of a claim?

    You should act quickly. You only have a short time within which you have to respond. The date you receive the court papers is known as the ‘date of service’, which is two days after the postmark on the envelope it came in. You must respond to the claim within 14 days from this date.

    However, first of all, check if the section headed ‘Particulars of claim’ on the claim form contains the words ‘Particulars of claim to follow’. If it does, you should not reply to the claim until you have received these ‘particulars’ (or details), which should be sent to you within 14 days. Once you receive the particulars of the claim, make sure you respond within 14 days of receiving them.
    The second paragraph there explains when the 14 days starts. I do however understand your concerns.
    .
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