Claim Submission Form Received - Acknowledgement filed...now to prepare the defence

gbbe

Coupon-mad said:

Have a look at the WS I wrote for @Littlewadie because I think I covered it there.  I seem to recall writing words near the end: 'In the event of a discontinuance...'

Great wording @Coupon-mad thanks!! have added it to my paragraph, think it sounds good! (i know i need to number it aswell)

Unreasonable behaviour and risk of discontinuance - my Summary Costs Assessment is attached (EXHIBIT XX17)

 The CCBC and/or the allocated Court Judge are invited to read my supplemental witness statement along with EXHIBIT XX14, XX15 and XX16 at the earliest opportunity. I aver that parking firm claims which add a duplicitous ‘costs’ sum to the parking charge are now easily identified to be unlawful. Such claims are against the public interest, requiring no further assessment, and listing such cases for trial should be avoided. The Court is invited to exercise its case management powers pursuant to CPR 3.4 to strike out this claim, which is entirely tainted by abuse of process and breaches of the CRA.

 

For the reasons set out above, and given the facts in my defence, supplementary witness statement and witness statement below, it is my position that the test has been met in Dammerman v Lanyon Bowdler LLP [2017] EXCA Civ 269 (12 April 2017), the Court of Appeal authority and guidance on how the courts should approach applications for costs under CPR 27.14 (2)(g). The CoA in Dammerman concluded that the meaning of "unreasonable" cannot be different when applied to litigants-in-person in small claims cases.  The test is whether the conduct "permits of a reasonable explanation" which cannot be the case here.

 

In view of the facts of this case, the Claimant’s cavalier attitude and their failure to properly consider their legal position thus far, I believe there is a likelihood that they will now issue a Notice of Discontinuance ('NoD').  However, this means that I must raise the matter of my costs, as fairly assessed to the best of my ability at this stage (see my Summary Costs Assessment appended to this statement EXHIBIT XX17, which does not exceed the CPR ceiling of two thirds of the costs that may have applied if I had had the benefit of legal representation).   

I respectfully ask that the Judge grants my costs anyway, in the event of a NoD, and uses the court's discretion to dispense with any formal application in this case because I have surely been put through more than enough by this litigation, and because the court has a wide discretion on the issue of costs where a party has crossed the line into "unreasonable behaviour" in pre and/or post-action conduct in the small claims track.

THEN AT THE END......

My costs - to be Summarily Assessed even in the event of a Discontinuance

58. The Court is invited to dismiss this Claim in its entirety, and to award my fully assessed costs, not just for the attendance at the hearing, such as are allowable pursuant to CPR 27.14. As stated above, I ask that my Summary Costs Assessment EXHIBIT XX17 be granted. I firmly believe that to pursue me as registered keeper when the Claimant admits they have no such right, and to submit such incoherent particulars and lacking ‘evidence’ is wholly unreasonable and vexatious.

gbbe

Q) Do I leave this bit in after paragraph 58 above (incase the claim isnt struck out), or is it just repeating itself?

59. In the matter of costs. If the claim is not struck out, the Defendant seeks:

(a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) the Court to reserve, assess and award the Defendant’s Summary Costs Assessment, filed and served in anticipation of a typical late Notice of Discontinuance (‘NoD’) from this Claimant.

60. At NoD stage, or at a hearing if the case proceeds that far, the Court will be taken to facts to support a finding of wholly unreasonable conduct by this Claimant. Pursuant to CPR 46.5, whilst indemnity costs cannot exceed two thirds of the applicable rate if using legal representation, the Defendant notes that LiP costs are not necessarily capped at £19 ph. The Defendant will ask for a fairly assessed rate for the hours spent on this case, referencing Spencer & anor v Paul Jones Financial Services Ltd.

gbbe

another question......i have a copy of the landowner contract dated a few years ago and it says that Excel can only charge at the p&d machine if a car is on the property for over an hour (which mine wasnt) so i have evidenced the contract......... my question is this, am i better just evidencing that one page of the contract that i refer to so i dont help the claimant by showing they have authority to issue pcn's etc as in my witness statement i say this and then trip myself up by providing the full contract as evidence:

37. Furthermore, the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or the necessary landowner authorisation to issue PCNs under these circumstances and to pursue keepers by means of civil litigation. It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, other terms (or instructions to cancel charges due to a surge of complaints) and there is no evidence that the freeholder authorises this particular Claimant. Any purported landowner 'contract' which fails to properly identify the two contracting parties and/or which is in any way redacted (including the signatories, which in some parking claims have been revealed not to be that of the landowner) should be disregarded, along with any undated and/or unsubstantiated records, documents, boundary maps or aerial views, or photos which are capable of manipulation.

Coupon-mad

Answering both your quesions, I say include it all.  

gbbe

Last question...... I'm numbering all mine and the courts pages and doing a contents page with the witness statement. Do I have to do the same for the claimant or can I leave them to struggle without numbered pages and a contents?

DoaM

Technically you don't have to do it at all, but doing it for the court copy is good practice. You don't need to go to that effort for the Claimant's copy (as far as I know) ... the Claimant's copy merely needs to contain all the same material facts and content (exhibits/appendices); but if you've prepared this all electronically then it would seem odd to print out two different versions.

nosferatu1001

No need to do that for the claimant. Just loose in an envelope is good. Doesnt even have to be in the right order to begin with....

DoaM

Good point ... certainly no need to put the Claimant's copy in a ring binder etc.

gbbe

nosferatu1001 said:

No need to do that for the claimant. Just loose in an envelope is good. Doesnt even have to be in the right order to begin with....

oooo now i am tempted to re order it all for the lovely claimant ......

KeithP

gbbe said:

Last question...... 

I don't believe it.