Help with Witness Statement and Skeleton Argument

Coupon-mad

An application to 'strike out' a claim costs you a fee.

Normally that's a bit of a gamble and is not needed - these useless firms dig their own holes and our defendants like Gin and Milk (who won yesterday at their hearing) just help them in spades to get buried in front of a Judge! It's about a strong defence & evidence filed in time, confidence to see it through (even if nervous, that's normal) and drawing a decent Judge in the small claims lottery.

Gin_and_Milk

To give you an idea of how useless these firms are I got my witness statement from Gladstones this morning. Like Coupon Mad says, the actual hearing was yesterday...

Kind_Of_Irritated

More ammunition if you want to take them to the small claims court, I suppose, G & M?

To give you an idea of how useless these firms are I got my witness statement from Gladstones this morning. Like Coupon Mad says, the actual hearing was yesterday...

There was a time-limit for them (and their victims) to get their Witness Statements in. No?

Gin_and_Milk

There was indeed a time limit. I should have received their WS by 17th Jan at the very latest.

I had a quick look again last night. Minster Baywatch didn't actually sign off their document until 26th January - 9 days after the deadline. I can only assume that it sat on someone's desk at Gladstones for a few days before it was posted. See what I mean about useless?!

Loadsofchildren123

I'd steer clear of detailed legal argument in the Defence and include more detail about the cases in a Skeleton Argument, partly because this gives Gladstones too much notice of your points but also because the Defence is supposed to be a summary.


There is no harm in asking the court to strike out. But the application fee is £255 which is excessive. If you won you'd get these costs back. You apply on Form N244 (google it you'll find a link) and you have to include a draft order saying what order you want the court to make (you can copy this from the orders which are on the Prankster's blog (don't forget to include a costs order) and your evidence in support (which is basically your letter).


HOWEVER here is the good news:


Under the CPR the court has the power to make an order of its own volition, without an application. Alternatively it has the power to treat a letter from you as an application without requiring a formal N244 application (and the fee). So yes, write to the court and ask it to make an order - it's worth trying.


I have written to the court asking it to exercise these powers, but so far nothing. I'll post a copy (my letter is written on behalf of the Defendant, you would need to change it to put it into the first person). I'm splitting this post and the letter because the forum doesn't seem to like long messages.

Loadsofchildren123

The relevant CPR is
CPR Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1 - court can exercise its inherent powers, of its own initiative, as part of its duty of active case management, in order to to summarily dispose of issues which do not need full investigation and trial.
If the court is not minded to make an order of its own volition, then the court has the power to treat this letter as an application rather than asking the Defendant to issue a Notice of Application – the power to do this is contained in CPR Part 23.3(2)(b) which provides specifically that the court may dispense with the requirement for an application notice.

I asked for orders in the alternative, giving the court different options:
1. Strike out or summary judgment, AND an order that the Claimant be prohibited from issuing any further proceedings against me in respect of the same subject matter, without leave of the court (relying on a case where Gladstones issued twice in different courts);
2. OR Stay the proceedings because of all the breaches of the Practice Direction – Pre-Action Conduct and Protocols and the CPR
3. OR An order treating a previous letter as a Part 18 Request and a time limit to answer it

[In support of the strikeout application I cited other cases. I compiled this list from the Prankster's blog - there have been one or two new ones since, eg PPML v C Limited C6GF0225 in Birmingham]
Examples of other cases in which the court either dismissed/struck out the claims on a summary basis or ordered that the claims be otherwise dismissed are as follows:
a. UKPC v Mr M, case number B6QZH3R, a decision of DDJ Ellington in about April 2016, (dismissed on the basis that there was no contract proved)
b. Link Parking v Cowles, case number B5GF95H3 in Chippenham County Court, a decision of DJ Asplin on 16 May 2016, (dismissed on the basis that there was flawed signage and no contract was proved)
c. The Parking Ticket Company Ltd v unknown (dismissed in about December 2015/January 2016, but I have not been able to find out in which court the claim proceeded) (summarily dismissed);
d. Premier Park Ltd v unknown (a case heard by DJ Hall in Exeter County Court on 19 March 2015) – (summarily struck out - a copy of the Particulars of Claim and the striking out order are attached, marked as "d" – note that the Particulars are identical to those in this case, save for details such as the date/registration number).
e. Premier Park Ltd v unknown (a case heard by DDJ Gardener in Southampton County Court on 25 August 2015) –Jamie William Ashford who has signed the Claim Form in the claim against my father also signed the Claim Form in the Premier Park case. He will therefore be familiar with it and the result of filing such a woefully inadequate particulars of claim. This was in fact the claim in d above simply pursued in a different court – the claim was struck out summarily. A copy of the order and the Particulars of Claim (identical to those in this Claim) are attached marked "e".
f. Link Parking Ltd v M Ltd, case number B8GF6J4J issued in Taunton County Court - claim summarily struck out in May 2016 because the Particulars were "wholly deficient" (copy order attached marked "f").
g. AS Parking v Mason case number C3GF84Y2 issued in Plymouth county Court - struck out in December 2016 because of deficient particulars of claim in identical format to those in the present Particulars of Claim
h. District Enforcement v Mr X case number C8GF33C8 issued in Portsmouth County Court – Claimant ordered in July 2016 to file "properly pleaded particulars" otherwise the claim be struck out (copy order attached marked "h").
i. Parking Control Management v unknown, unknown case number, issued in the St Albans County Court – claim dismissed in September 2016 because of the Particulars of Claim being "incoherent" (copy order attached, marked "i").
j. MIL Collections Ltd v unknown, case number C8QZ22G6 issued in Preston County Court – claim struck out in August 2016 because the Particulars of Claim did not disclose reasonable grounds for bringing the claim and were an abuse of the court’s process (copy order attached marked "j") (I am unsure if Gladstones acted in this case).
I emphasise that all but the first of these (and possibly the last) were claims in which the Claimant’s solicitors acted. They must therefore know that the Claimant’s Particulars of Claim are deficient and an abuse of process, because they replicate the deficiencies held to exist in the particulars of claim in the above cases. This is not an exhaustive list of similar cases which have been struck out/summarily adjudged/disallowed at final hearing, this is just an example of what I have been able to find on a google search.

Loadsofchildren123

I had difficulty posting the letter, sorry, but it was similar to yours OP, only I added the points above in the hope the court might make the order itself.

Loadsofchildren123

Send a copy of your letter to Gladstones and tell the court you hvae done this. Otherwise they could invite their comments or list it for a hearing. If they know Gladstones are on notice and haven't bothered replying you have a better case for strikeout with no hearing

Loadsofchildren123

Here is the letter - at the end I added a list of the documents I had asked them for and the section citing the other cases where there'd been a strikeout ordered.
I enclose a copy of a letter written to Gladstones Solicitors, the Claimant’s legal representatives, on 18 November 2016. Even though it raises some crucial issues regarding the basis of the Claim and documents/information necessary for me to understand and properly defend it, they have not responded to it, nor acknowledged it in any manner.

The letter set out a number of concerns about the validity of and basis for the Claim and the Claimant’s numerous and flagrant breaches of the CPR. You will note that I invited the Claimant to discontinue the claim, or to answer the questions and provide the documents requested so that I can properly defend it. You will see that I told the Claimant’s solicitors that if they did not agree to discontinue the Claim, then I would ask the court to exercise its power to strike out and/or summarily adjudge the Claim in my favour. That is the purpose of this lette.

As the Claim is currently pleaded, it is incoherent and discloses no cause of action, all of which means that my father is unable to file a meaningful defence. All he can say is that he was not the driver of the vehicle.

It is regrettable that the Claimant’s solicitor has ignored the letter and that the Claimant has taken no steps to remedy the clear deficiencies in the Claim Form/Particulars of Claim. I therefore ask the court to:-
a. exercise its inherent powers, of its own initiative, as part of its duty of active case management under CPR Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1, namely to summarily dispose of issues which do not need full investigation and trial. The court’s powers include striking out a claim (or part of it) under CPR Rule 3.4 and Summary Judgment under CPR Rule 24. It is my father’s view that the claim should be struck out, but as an alternative summary judgment could also be given. and to order that the Claimant pays the Defendant’s costs so far incurred (these amount to four hours of time at the hourly rate of a litigant in person at £19 allowed by Practice Direction 46 (paragraph 3.4) and CPR Rules 45.39(5)(b) and 46(4)(b), so a total of £76);
b. if the court is minded to make that order, then I also ask for an order that the Claimant be prohibited from issuing any further proceedings against me in respect of the same subject matter, without leave of the court;
c. if the court is not minded to order that the Claim be struck out or summarily adjudged, then I invite the court to stay the proceedings because of the Claimant’s breaches of its pre-action obligations which are set out in the Practice Direction – Pre-Action Conduct and Protocols, until its breaches are remedied (by providing all of the information and documents requested in the letter of 18 November 2016) and to order that the Claimant pays the Defendant’s costs so far incurred (these amount to four hours of time at the hourly rate of a litigant in person at £19 allowed by Practice Direction 46 (paragraph 3.4) and CPR Rules 45.39(5)(b) and 46(4)(b), so a total of £76);
d. if the court is not minded to make either of those orders, then I ask it to make an order treating my letter of 18 November 2016 as a Request under CPR Rule 18 and that the Claimant answers it in full within 14 days – I have for convenience listed the documents and information required in a separate section below. My father will then of course have to amend his Defence and he therefore also seeks leave for that to be done (I would suggest 21 days after the Request has been answered);

The court’s power to make such orders of its own volition, without a formal application, are contained in CPR Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1.If the court is not minded to make an order of its own volition, then the court has the power to treat this letter as an application rather than asking the Defendant to issue a Notice of Application – the power to do this is contained in CPR Part 23.3(2)(b) which provides specifically that the court may dispense with the requirement for an application notice.

The court’s powers to strike out a claim are contained inCPR Rule 3.4and the “test” is if:
(a) the statement of case discloses no reasonable grounds for bringing a claim; or
(b) the statement of case is an abuse of the court’s process; or
(c) there has been a failure to comply with a Rule, Practice Direction or Order.
All three of (a)-(c) above apply in this matter: the Claim Form fails to disclose the grounds for bringing the Claim (or even what the claim is), the statement of case is so deficient that it amounts to an abuse of process, and the Claimant is in flagrant breach of almost every aspect of the CPR which apply to the bringing of a claim. Specific examples of breaches are set out below, but this list is not exhaustive.

The court’s power to order summary judgment is inCPR Rule 24. Rule 24.3(a)(i) provides that the court may do so if the Claimant has no real prospect of succeeding. The Claim form/Particulars of Claim makes out no prima facie case, has no prospect of succeeding and should be summarily adjudged now.

In relation to the request that the court orders that no further claim can be issued against me without the court first giving leave, this is because two of the cases mentioned below were issued against the same Defendant in respect of the same incident, each in a different county court and the second being issued after the first had been disallowed – such behaviour was an abuse of process and my father cannot be expected to tolerate such behaviour (I refer to the cases at paragraphs d and e below).

Set out below is a list of the various deficiencies in the Claimant’s Claim Form, Particulars of Claim and its various breaches of the CPR. Most seriously, the Claim Form/Particulars of Claim disclose no cause of action and are unintelligible. They contain no details, and give no indication, of the basis under which the claim is brought (breach of contract, trespass or any other basis). All the Particulars state is “31/10/15 5KGX/MPS7818 £150 281115 Total due £150”, followed by wording stating that the claim is for a total of £161.15 which it says is “for Parking charges and indemnity costs…” plus interest.

I have drawn these breaches/deficiencies to the Claimant in some detail, in the letter of 18 November, and have given the Claimant a reasonable opportunity to remedy them. However, they have simply ignored the letter. Not only that, they have failed to provide the most basic of documents which have been requested of them so that I may understand the Claim and present a defence to it. It is of course a Claimant’s duty to provide such documents at the pre-action stage of proceedings, as required by the Practice Direction – Pre-Action Conduct and Protocols (paragraphs 3 and 6). Yet the Claimant has chosen to ignore those requirements, considering itself somehow immune from them.

This is not the Claimant’s only breach of the Practice Direction. In fact, the Claimant has ignored the Practice Direction in its entirety. The Practice Direction forms part of the CPR and binds the parties. It sets out what every potential Claimant is required to do prior to issuing proceedings – none of which the Claimant has done. The objective of the Practice Direction, set out in paragraph 3, is for the parties to
“exchange sufficient information to —
(a) understand each other’s position;
(b) make decisions about how to proceed;
(c) try to settle the issues without proceedings;
(d) consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;
(e) support the efficient management of those proceedings; and
(f) reduce the costs of resolving the dispute.”
Parties are required to comply with the Practice Direction by paragraph 6, which states that “the parties should comply with [it] before commencing proceedings… the parties should exchange correspondence and information to comply with the objectives in paragraph 3….. The steps will usually include—
(a) the claimant writing to the defendant with concise details of the claim. The letter should include the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant, and if money, how the amount is calculated;
(b) [provides for the defendant to respond so as to identify what is in dispute and any counterclaim]
(c) the parties disclosing key documents relevant to the issues in dispute.”
I have added the emphasis to paragraph 6(a) and (c).
Paragraph 12 confirms that the purpose of the above is so that the parties may at the very least narrow the issues and take stock before issuing a claim. Paragraph 13 makes it clear that the parties are expected by the court to comply with the provisions of the Practice Direction. Paragraph 14 provides that the court may decide that there has been a failure of compliance when a party has
(a) not provided sufficient information to enable the objectives in paragraph 3 to be met;
(b) not acted within a time limit set out in a relevant protocol, or within a reasonable period; or
(c) unreasonably refused to use a form of ADR, or failed to respond at all to an invitation to do so.
And paragraph 15 provides that where there has been non-compliance, the court may order that the proceedings be stayed while particular steps are taken to comply with it, and/or may order sanctions (for instance, an adverse costs order).

In considering what order to make, I ask the court to consider the fact that Gladstones, the solicitors acting on behalf of the Claimant, have acquired something of a reputation for issuing such deficient claims on behalf of private parking companies (these computer generated claims are colloquially known as “roboclaims”). There are many recent instances in which the court has exercised its inherent powers under CPR Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1 to strike out claims under CPR Rule 3.4 and 24 made by other clients of Gladstones, who are also private parking companies. I attach a number of such orders which have been made and refer to these at paragraph [ ]below. All of these other cases (apart from the first and possibly the last) were brought by Gladstones. The Claim Form/Particulars of Claim in the cases set out at (c) to (j) below were identical to that issued in this Claim, and I ask the court to deal with the Claim in the same way that these other claims were dealt with (summarily struck out). The situation is made more serious because, having had a number of strikeout orders made against their clients, Gladstones (which consists of just two fee earners who sign all the Claim Forms) clearly know that claims in this form are grossly deficient, do not comply with the most basic of the court rules and are an abuse of the court’s process, yet they continue to churn them out and issue them in the same form – presumably in the hope that vulnerable people with no knowledge of the law (such as me) will simply pay up.

Deficiencies in the Claim/breaches of the CPR

1. The nature of the claim is not particularised (in breach of CPR Rules 7 and 16).
2. The Particulars of Claim contain no detail of the claim at all (in breach of CPR Rule 16.4 and Practice Direction 7E,paragraph 5.2) – it simply says it is “for Parking charges”.
3. The Claim Form does not set out the nature of the claim (in breach of CPR Rule 16.2(1)(a)).The Defendant does not know the basis of the claim – is it for a breach of contract, for damages for trespass, or something else? There is no information about why and how the “charge” arose, what the original “charge” was, what the alleged contract was (if a breach of contract is alleged) or what the alleged trespass was (if a trespass is alleged).
4. The Claimant’s breaches of Rules 7 and 16 mean that my father is unable to defend the Claim properly or at all - Rule 16.5(1) requires him to state which aspects of the claim he denies, and which he cannot admit or deny and requires the Claimant to prove. However, he is unable to do that. All he can do is deny the Claim in its entirety and put the Claimant to full proof of every aspect of it. It is of course for the Claimant to prove their claim, not for the Defendant to disprove it.
5. If the Claim arises in respect of an alleged breach of contract, the Claimant has failed to provide information relating to the contract (in breach of Practice Direction 16 – if the contract is claimed to be written, the Claim Form must include a copy of the document constituting the agreement (paragraph 7.3(1)), or general conditions (paragraph 7.3(2)), or if the agreement is said to have been created through conduct the Claimant has failed to specify the conduct relied on, and by whom, when and where acts relied upon were done (paragraph 7.5). The Claim Form/Particulars of Claim provide none of this information and provide no clue as to what sort of contract (if any) is relied upon.
6. If the Claim arises from an alleged trespass, the Claimant has again failed to particularise this. I understand that only a landowner can bring a claim under the tort of trespass, and my father does not believe that the Claimant is the landowner. Any claim under trespass, even if successful, will only yield damages of a nominal sum because the Claimant in this case cannot have suffered any loss. In spite of being asked to do so a month ago, the Claimant has not demonstrated that it is either the landowner or that it is legitimately acting as the landholder’s agent.
7. The £50 in solicitors’ costs sought in the Claim form are disputed because the particulars of claim are incompetent in disclosing no cause of action. They have been copied from other similar claims (many of which have been struck out) and scant details simply added in – such work cannot have cost the Claimant £50 in solicitors’ charges.

Loadsofchildren123

I wrote the letter on behalf of the defendant but have edited it so it's in the first person