my draft defence Gladstones - PCM Court action

Sassii

Coupon-mad wrote: »

Sassi can you show us what you are sending now? Base it on what Johnersh & LOC123 said.

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,

Loadsofchildren123

Sassii wrote: »

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,

some comments

[Deleted User]

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

Thanks v much Loadsofchildren123 for your comments and highly appreciate your correction.

Loadsofchildren123 wrote: »

sassii can you just check the start of this quote, the first few words seem wrong

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."

Loadsofchildren123 wrote: »

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?

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

[Deleted User]

Removed - comments relating to another factual matrix posted to this thread in error.

logician

Johnersh wrote: »

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.

@ 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.

[Deleted User]

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

Why people use small devices without proper keyboards I shall never understand. c

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

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.