CEL Claim Defence - Almost ready to submit I think

Ixworth_2

Emailed facts to court. Posted letter (with cert of post) to CEL rejecting the late PoC and showing them the text from the email I sent to court.

Let's see what they and the court made of this. I did mention the fact that this is not an isolated occurrence but that it looked like a tactic.

Coral87

Ixworth, any chance I could have a look at your letter? Are you going to wait for a rsponse or still submit defence?

ixworth

Coral87 wrote: »

Ixworth, any chance I could have a look at your letter? Are you going to wait for a rsponse or still submit defence?

I sent this letter (with proof of postage). I included a copy of the emailed text I sent to the court.



3rd November 2017

Dear Sir/Madam,

Claim No. XXXXXXXX

I am writing to you in regards to a money claim addressed to me by your company, Civil Enforcement Ltd.

I finally received the Particulars of Claim on 30/10/2017, which are rejected because they should have been sent to me by 24/10/2017 at the latest (not the 27th October 2017 as evidenced by the postmark on the envelope the documentation arrived in). Your company is therefore in breach of CPR 7.4 because your particulars have been served out of time. In default of service, it is a fact that Civil Enforcement is in breach.


In order to get permission for late service of particulars, you, the claimant must apply to court for relief from the sanction (CPR 3.9). The test is that in Denton v TH White Ltd [2014] EWCA Civ 906.

As an unrepresented Litigant-in-Person, I consider that a delay of several days is more than trivial and, in the context of a claimant professionally represented with volume claims before the court, I believe that compliance with the court timetable is an imperative, and your breach has caused me significant detriment.

Accordingly whilst I consider the position, I require a copy of the certificate of service filed at court, verified with a statement of truth from a named individual with appropriate authority within your company, confirming the date of service. In the meantime, since no valid Particulars have been served, the matter is unable to proceed and you will not be able to enforce the claim.

Please note that I am also informing the court of the facts noted here, together with evidence of the differing dates between that detailed on you Particulars of Claim and the postmark of the envelope in which it arrived. Also the fact that this appears to be a tactic your company has chosen to adopt rather than an administrative oversight.

Yours faithfully


XXXXXXXXXX (Defendant)

<<< COPY OF EMAIL SENT TO CCBC 3/11/2017 >>>

3rd November 2017

Dear Sirs

Claim number XXXXXXXX

Regarding Claim Form XXXXXXXX I am writing to draw to your attention that the Claimant appears to have deliberately backdated the Particulars Of Claim which were served separate to the Claim Form pursuant to CPR Rule 7.4(1)(b).

The Claim form was issued on 10th October, stating that the Particulars of Claim would be provided to me within 14 days after service of the claim form.

The further Particulars of Claim and covering letter were sent under cover of 27th October 2017. As such, according to Rule 6.3(b) they were served on 30th October 2017 (the next business day). However, both the Particulars of Claim and the covering letter were dated the 10th October (17 days before they were actually posted). The date of postage can be clearly demonstrated by the post mark on the envelope they arrived in, which shows the date of posting as 27th October, a copy of both letter and envelope can be provided as evidence if required.

I believe that the Civil Procedure Rules are quite clear - under Rule 3.8 the court should apply the sanctions unless the Claimant has applied for relief under 3.9.

I do not understand why the Claimant has delayed sending its backdated further Particulars of Claim, other than to try to gain an advantage by making me file my defence late, or by confusing me into having to rush the preparation of my defence or file it prematurely. I am aware of a lot of other cases where the Claimant is behaving in the same way so it appears to be a definite procedural tactic that the Claimant has chosen to adopt, rather than a single administrative oversight.

I regard this behaviour as a serious matter and I ask that this is formally noted on the court file.

This is a commercial Claimant pursuing many other claims of this nature. It must therefore have knowledge of, and understand, the Civil Procedure Rules and these sorts of blatant breaches should not be allowed because they prejudice Litigants in Person who are not versed in court procedures and the court rules. It is with some difficulty that I have understood the various obligations and time limits set out in the Civil Procedure Rules, as a Litigant in Person, whereas the commercial Claimant has no such excuse.

Yours Faithfully

XXXXXXXXXXXXXXXXXX (Defendant)

<<< COPY OF EMAIL SENT TO CCBC 3/11/2017 >>>

ixworth

I see that current advice with regard to CEL’s late-provided separate PoC is to include a piece in the email to the court about the failure of CEL to include a copy of the contract with the PoC.
As I’ve already submitted both my defence, and my email complaining about the later provision of the PoC, do you think it’s advisable to bother the court further with this failing?
I had planned to send them an email along the lines of:
<<<<<
Dear Sirs

Claim number XXXXXXXX


You will note from previous communications regarding this claim that the separate Particulars of Claim were not provided to me within 14 days after service of the claim form. Having now examined the PoC in detail, I believe that the Claimants have failed further to meet their obligations under Civil Procedure Rules.

The usual rule when a Claimant sues under a contract is that it must provide the Defendant with a copy of that contract (Practice Direction 16 paragraph 7.3(1)).

As I understand it, Claimants in proceedings issued via MCOL are exempt from this (Practice Direction 7E paragraph 5.2A) except when separate Particulars of Claim are served, as is the case in this Claim.

I believe the Claimant is therefore in breach of this aspect of the CPR because it has failed to provide the contract with the Particulars of Claim. The absence of the contract is a serious bar to me providing a proper defence to the claim (the Claimant should have produced a copy of it in the pre-action phase of the proceedings, against both the new Protocol for Debt Claims and the pre-existing Practice Direction - Pre-Action Conduct).

Again, as in my previous communications, I’d like to point out that this is a commercial Claimant pursuing many other claims of this nature. It must therefore have knowledge of, and understand, the Civil Procedure Rules.

These sorts of blatant breaches should not be allowed because they prejudice Litigants in Person who are not versed in court procedures and the court rules. It is with some difficulty that I have understood the various obligations and time limits set out in the Civil Procedure Rules, as a Litigant in Person, whereas the commercial Claimant has no such excuse.

I regard this behaviour as another serious failing on the part of the Claimant and I ask that this is formally noted on the court file.
Yours Faithfully

XXXXXXXXXXXXXXXXXX (Defendant)
>>>>>
Your views?

ixworth

All the emails about the court applying sanctions etc. appear to be being ignored by the CCBC. I just received a letter (together with the DQ) along the lines of the email responses we've been getting stating that, if I want to complain, I'll have to pay for the pleasure of a hearing.


Interestingly, there was no mention in the letter of the late service of PoC, nor any confirmation that the required N215 was submitted. The letter just mentioned the backdating and basically said that they couldn't do anything and weren't interested.


I've not heard anything from either CEL or the court about the fact that the required documentation wasn't sent with the PoC. Feeling very let down by the court at the moment. Not really confident that the Amanda Beck mails have done anything except spark the production of some template responses.


Anyway, I've completed the DQ and wondered now about the advice to send an additional letter so that the appointed DJ will see what's been going on regarding the late PoC. Would I just pop that in the envelope with the DJ to the CCBC? Has anybody done this yet?

ixworth

When filling in the DQ I puzzled over the number of witnesses. I think I'm the only witness but am not sure about the admissibility of a letter from my daughter corroborating my statement that I wasn't anywhere near the car park at the time the car allegedly was parked there. Would she actually have to appear to support this? Should I put 2 witnesses anyway? If she had to appear I assume she'd be able to claim her expenses from whoever wins in court.


I also have insurance docs showing me and spouse as named drivers, and copies of my children's insurance docs showing they can drive any car with the owner's permission. Is it usual to need anything beyond this?


This is all assuming CEL bother to turn up of course.

[Deleted User]

When filling in the DQ I puzzled over the number of witnesses. I think I'm the only witness

Wrong. If you're only on DQ's that means statements haven't been served, just your Defence. that means if your daughter was willing to write a letter, she's probably willing to write a statement. Stick in your daughter on the DQ. If she's willing to come along to a hearing, so much the better. You can charge for her time too.

In due course you will do a witness statement AND you need to get one from your daughter. That is simply what she has said in the letter but signed with a statement of truth. Job done.

I've not heard anything from either CEL or the court about the fact that the required documentation wasn't sent with the PoC

Nothing to stop you raising the fact that the Particulars were out of time when this matter is assigned to your local Court or requesting that as a "preliminary issue" the late service is dealt with. The problem with MCOL is that it is a processing centre, no judge looks at the Court file until assigned to a local Court.

ixworth

Thanks for your help Johnersh.

Johnersh wrote: »

Wrong. If you're only on DQ's that means statements haven't been served, just your Defence. that means if your daughter was willing to write a letter, she's probably willing to write a statement. Stick in your daughter on the DQ. If she's willing to come along to a hearing, so much the better. You can charge for her time too.

In due course you will do a witness statement AND you need to get one from your daughter. That is simply what she has said in the letter but signed with a statement of truth. Job done.

I'll state 2 witnesses on the DQ then and get a witness statement from my daughter when I pull my evidence pack together. If it ever gets to court I'll hope she can come along but will have her statement as evidence anyway.

Johnersh wrote: »

Nothing to stop you raising the fact that the Particulars were out of time when this matter is assigned to your local Court or requesting that as a "preliminary issue" the late service is dealt with. The problem with MCOL is that it is a processing centre, no judge looks at the Court file until assigned to a local Court.

I'll wait for a court date and raise this then. Presumably just a straightforward letter (to the judge?) presenting CEL's non-compliance and asking for this to be considered by the judge as a preliminary issue?

[Deleted User]

Be aware that the position is not clear cut with late particulars.

The position is this.

1. On the one hand the Claimant is out of time and needs to apply for relief from sanctions;
2. On the other hand, the CPR does not say expressly that Particulars served late are to be struck out or debarred, such that it may be argued you should apply if you want that to happen.

It's unfortunate, because if you were late with a Defence the Claimant would be entitled to default judgment. The position is not mirrored.

As such there is discretion. In the circumstances, I'd write to the Court with the allocation questionnaire, copying in the Claimant flagging the point, to see if the DJ plays ball.

With the Particulars dated 11/10/2017 all served late, the issue is twofold:

1. You received them late so the date on the document is entirely misleading;
2. [in my view the greater crime] CEL appear to have been relying on a single document that was checked and signed on 11/10/17 and then using it for all cases, save only to amend and alter the schedule attached (which actually contains the information that goes to the heart of the claim, not the generic material). Thus there is no confidence that the document was ever checked or signed by the signatory or evidence that his signature was used with approval in connection with this pleaded case.

LoadsofChildren 123 has previously raised the question as to whether the certificate of service has the real postal date on it or one based on the date of Particulars. That is a really interesting point (as is who signed it) as few solicitors signing one would be prepared to risk their career on it.

Castle

Johnersh wrote: »

As such there is discretion. In the circumstances, I'd write to the Court with the allocation questionnaire, copying in the Defendant flagging the point, to see if s/he plays ball.

I think you mean Claimant.