So I'm going to court...

Loadsofchildren123

Just looked at your skeleton.


Other than the first section, all of this is for later on. The Skele is usually filed and served a few days before the hearing. It's a summary of your defence, evidence and legal arguments, and will also contain your response to their evidence which you haven't seen prior to your WS. So it's premature for all of that now.


However, your first section is relevant for now. So I'd put that into a document headed "strikeout/dismissal of claim". Add to what you've written that they are also in breach of Practice Direction 7E - this states at paragraph 5.2 that the particulars of claim must be detailed.

I'd add in a section about how they have ignored the Practice Direction - Pre-Action Conduct - which I've set out below.

Spell out at the start what you are seeking:
Either:
1. a dismissal/strikeout of the claim pursuant to CPR Rule 3.4
or
2. If the court is not minded to make that order, a stay of the claim pursuant to paragraph 15 of the Practice Direction - Pre-Action Conduct and an order that they comply with it by providing sufficiently detailed Particulars of Claim and the core documents on which they rely (copy of signage, copy of landowner contract [and anything else you say is relevant at this stage], and such documents should be produced within 28 days, failing which the claim should be struck out. Without the documents and further information, you cannot be expected to file final evidence when you still do not properly understand the claim.
Say that the court has the power to make these orders of its own volition, pursuant to CPR rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1 and 5.2, namely to summarily dispose of issues which do not need full investigation and trial.


Here's something for you to play around with, which I've copied and pasted from a document I did:

Breaches of the Practice Direction - Pre-action Conduct (“the PD”):
1. Paras 3, 8 and 12 of the PD set out its purpose, which is to primarily to avoid litigation (para 8) by laying down a procedure which allows the parties to
i. understand each other’s positions (para 3)
ii. make decisions about how to proceed (para 3)
iii. explore settlement/consider ADR (para 3)
iv. support the “efficient management” of any proceedings and reduce costs (para 3)
v. “stocktake” and review their respective positions after following the PD by exchanging information, to see if proceedings can be avoided and to “at least” narrow the issues (para 12).

2. Paras 6(a) and 6(c) oblige a C to enter into a meaningful dialogue with a D at an early stage by imposing specific obligations to:
i. explain the claim in a Letter Before Claim,
ii. provide relevant core documents, and
iii. answer any questions asked by D in sufficient detail for D to understand and respond

3. The LBC was a blatant breach of para 6: no explanation of what the claim was for (eg breach of contract, trespass and so on) and referred to/included no documents relied upon. Examples of core documents/information which the Claimant should and could have provided are:
i. what the claim was for
ii. whether D is pursued as driver and/or Registered Keeper (and reference to POFA)
iii. a copy of the landowner contract demonstrating the C has the right to issue PCNs on the land,
iv. a copy of the signage and an explanation that this set out the terms of any asserted contract, details of where the signage was displayed, how big the signs were and so on
v. how any contract had been entered into and how it had been breached,
vi. photographs showing the car parked and no permit displayed
vii. a plan/photograph showing where the car was parked and where the signs were situated.
None of this information has ever been provided, even now that a claim has been issued.

4. [if relevant] D invited C to rectify its breaches [ref], asked various questions about the claim and requested documents [ref]. Those invitations/requests were ignored completely [or C refused to answer them] [ref]].

5. There are of course identical obligations on a D imposed by the PD(paragraphs 3, 6(b)/(c) and 12). However, compliance with them is dependent on the C’s prior compliance. C’s conduct has denied D the opportunities under 2.1-5: there has been no pre-action dialogue at all and no response to the D’s attempt to narrow the issues.

6. Had C complied, the claim could have been discussed prior to court proceedings, and issues disposed of or narrowed - in particular the D's rights to park as a resident/primacy of D’s pre-existing rights to park as a resident

7. The sanctions in PD Para 13-16 clearly provide that compliance with the PD is not voluntary, nor is it a “guide” to best practice. It is part of the CPR and is binding. Parties are expected to comply with it. The court may punish those who do not. Inter alia, the court’s powers include staying the proceedings and ordering compliance (15) a costs order, and this may be on the indemnity basis (16(a) and (b)) and the power to remit (or increase) interest 16(c)/(d). Such sanctions can apply even against a successful party (paragraph 16).

8. The PD’s aim is to create an opportunity to resolve matters (or at least narrow issues) in the lower cost atmosphere of pre-action protocol procedure”, rather than the “higher cost atmosphere of court proceedings” (as it was referred to in Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855

Jhpt

LOC123 - thank you!!

To answer your questions re: WS

para 10: this is simply as to how to display the permit (the lettings agency distribute these - we were provided these but I'm pretty sure never explicitly told we were required to display these).

para 21-23: My concern here - my solicitors act for me upon other matters to do with other business interests I have. I've discussed this case with them but I have not explicitly instructed them to act (as they never received anything from the C) - I plan on representing myself in court. Should I still include these? I wonder whether the judge will then ask why I'm representing myself in court if I had instructed solicitors? I planned to be honest and say as the C has never contacted them I felt it was best undertook by myself?

26: I can, and I will!! Thanks.

In terms of SA:

My first section - am I right in assuming that I add the first section to a cover letter to be returned to court along with my DQ? Requesting the court dismiss the claim?

As you've suggested I've added in a section titled "Claimant has failed to abide byPractice Direction - Pre-Action Conduct" and taken several examples from your helpful post - unfortunately a few don't apply to me so I've removed them, and I've asked the court to dimiss the claim rather than stay it - "the Claimant is a serial litigant and has taken many motorists to the courts for similar offences, so should no better" type of thing!

Loadsofchildren123

para 21-23: My concern here - my solicitors act for me upon other matters to do with other business interests I have. I've discussed this case with them but I have not explicitly instructed them to act (as they never received anything from the C) - I plan on representing myself in court. Should I still include these? I wonder whether the judge will then ask why I'm representing myself in court if I had instructed solicitors? I planned to be honest and say as the C has never contacted them I felt it was best undertook by myself?
The fact is you told them to communicate with your solicitors so they were bound by that.
You can at any stage choose to act in person, so you won't be expected to provide any explanation about why you are later choosing to represent yourself (and you'd probably be expected to do so because in small claims you can't recover legal costs, unless there is unreasonable behaviour under 27.14(2)(g).

Loadsofchildren123

I've removed them, and I've asked the court to dimiss the claim rather than stay it


You can just ask for dismissal. But I always find it's better to ask for a stay in the alternative. Even if you don't ask for it, the court has the power to order it. So you can leave it out if you prefer.

Jhpt

Excellent - all understood and I'll do as you suggest here!

Just to double check - that first paragraph from SA - am I right to incorporate this into a "cover letter" to send to the courts along with my DQ? Or should I have this seperate document for another time?

In my opinion they have behaved unreasonably;
1) Have not communicated via Solicitors
2) Aggresive/intimidation used t/o communication
3) referring to Supreme court judgement they know full well is not applicable to residential parking
4) They've seen my defence - they know I have a tenancy agreement which extends to unfettered right to parking - if in court they don't counter this (even though the SAME solicitors have fallen foul of this and are referenced in case law) then surely they have taken a case to court with no realistic right to win..

Do you feel they've been unreasonable? Just setting my schedule of costs here.

The_Deep

I think that any PPC who takes a resident to court when they have been told that that resident has a leasehold right to park there is behaving unreasonably.

They must know by now that their made up T&Cs are most likely to be overruled by the owner's lease or the tenant's AST, and that their interference is a direct threat to his/her rights to peaceful enjoyment, (and possibly an offence}, under The Landlords and Tenants Acts.

Also, if they are claiming absurd sums for "enforcement action" they have failed to acquaint themselves with the rules regarding governing allowable amounts.

There seems to be little guidance on what is an is not unreasonable behaviour, but if I interfered similarly in my tenant's quiet enjotment of their property I might well be for the high jump.

Read these

http://insurance.dwf.co.uk/news-updates/2014/12/what-amounts-to-unreasonable-behaviour-in-the-small-claims-track/

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

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

Loadsofchildren123

Jhpt wrote: »

Excellent - all understood and I'll do as you suggest here!

Just to double check - that first paragraph from SA - am I right to incorporate this into a "cover letter" to send to the courts along with my DQ? Or should I have this seperate document for another time?

In my opinion they have behaved unreasonably;
1) Have not communicated via Solicitors
2) Aggresive/intimidation used t/o communication
3) referring to Supreme court judgement they know full well is not applicable to residential parking
4) They've seen my defence - they know I have a tenancy agreement which extends to unfettered right to parking - if in court they don't counter this (even though the SAME solicitors have fallen foul of this and are referenced in case law) then surely they have taken a case to court with no realistic right to win..

Do you feel they've been unreasonable? Just setting my schedule of costs here.

1 isn't a reason to dismiss the claim, so I'd leave it out of the letter but leave it in the document. And complain to the SRA. This is a fairly big no-no to communicate direct with a person who says they have a solicitor. Having said that, they'll say their client didn't tell them and nothing will happen (probably).


The real reason you are applying for a strike out is the fact that their claim is incomprehensible (rule 16 and PD 16 and 7) and they've ignored the PD.


4 is a reason to apply for summary judgment, which is a bit different - rule 24 I think that comes under. You have to show they don't have an arguable case. You may not win that because they'll say that your tenancy post-dates their contract (does it? were they already operating there when you moved in?) and that the landlord's lease allows the freeholder to introduce new "regulations" and these must include parking permits/regulations. However, even if that argument wins, the lease will not permit the freeholder to impose new contractual obligations with a 3rd party, nor any separate charges (the lease will only provide for ground rent and service charges). But there we have it - this is an arguable point. I don't think the court will summarily adjudge this on that basis, on the papers - I think you'd have to make a formal application and for there to be a hearing. In a small claim it isn't worth it.


So I'd just go for strikeout on the basis that their particulars are incomprehensible and make out no cause of action

Jhpt

The Deep - quite agree! Thanks for those links - interesting reads and hopefully means I can phrase my arguement re: unreasonable behaviour well.

LOC123 - Thanks (yet again!) i've completed the letter, attached it to my DQ and I'm sending it off later today/ tomorrow.
Unfortunately yes they were operating there prior to me moving in.
Sounds like all good to go!

Jhpt

Hello all - just wanted to check if anybody had any further feedback on my WS or SA?

These can be viewed @

https://1drv.ms/f/s!Aibl1hXp99GRgW_POlL5uxV4_o3e


THANK YOU!

Jhpt

Bump!

Can anybody help?