Please help!Letter from Newlyn

nikkietoni

Hi everyone....well update and a negative one! I cannot believe I am having to post this. As stated in my last post my daughter received the £215 cheque in May 2021. All good. 
But this week she has received a bundle of correspondence from Gladstone's solicitors. It is all a bit above my head I am afraid and I am worried sick about the implications. As you may know I managed to get a CCJ set aside after numerous problems with Horizon Parking. If you scroll back you will be able to see what happened. 
It now looks as though Horizon are taking her to court to try to claim the £215 back!
She has received absolutely no correspondence from them since they paid the £215 when I was advised to threaten them with court bailiffs if they did not pay within 7 days.
They say in their letter (Gladstone's solicitors) with the bundle of papers that "the claimant's trial bundle and skeleton argument further to the order of the court" 'We confirm the same has been filed with the court and further to our previous letter(NONE RECEIVED!) we request you contact us to provide a contact telephone number for attendance at the hearing we we do not have one and we are ordered to provide the court with details of the attendees no later than...." (the date they stated has been and gone!) 
What is this all about? The first part of the bundle quotes a date in May 2021 ..a N244 where it is stated Horizon is the Claimant!
This is what they have stated on the application notice...1)The order be set aside 2) The defendant(my daughter) repay to the Claimant(Horizon) £215 back within 14 days.3)The cost of the application is refunded by the courts the court erred when making the order dated ..(gives the order date in early
2021)
It continues to say "On the basis the Court incorrectly made the order granting costs;owing firstly to no order as to costs forming a part of the order when the Default Judgment was set aside and therefore a further order as to costs ought not have been made on the basis costs were decided, and/or that pursuant to CPR 38.6(3), the court ought not to have awarded costs to the Defendant as the matter had been allocated to the Small Claims Track , where costs can be awarded under CPR38.6 on discontinuance are not applicable. This application also requests the Court reimburse the fee for making this Application, on the basis this order ought not to have been given , and the Claimant (Horizon)therefore ought not to be prejudiced by the cost of filing this Application with the court, for the reasons as further detailed in Paragraph ...
They stated they do not want the application to be dealt with at a hearing.(without a hearing)
Paragraph 10..
"The Costs Order states "Upon the Claimant discontinuing the Claim and there being as deemed costs order pursuant to CPR 38.6..It is ordered the the Claimant(being Horizon) do pay the Defendant's (my daughter)court fee of £215"
It is the Claimant's (Horizon) case that the COSTS ORDER is incorrect for two reasons. Firstly, the issue of costs in respect of the Defendant's (my daughter)court fee was settled when the Order was made by DD judge....and therefore no further order to the same should have been made, and/or in the alternative /in any event, CPR 38.6(3) states that the provisions of CPR 38,6 are not applicable to Claims on the Small Claims Track and should not have been awarded to the Defendant (my daughter) on this basis."
in Paragraph 11 They state that their client (Horizon) requests the Costs Order to be set aside, the Defendant(my daughter)to refund back the £215 sent to her by them and the cots of the Application be waived/refunded by the Court on the basis it was made in error for the reasons given in the absence of the parties...."
My daughter had to borrow that money as she is a single parent and had so much stress and anxiety with what she went through with Horizon  and to have the CCJ set aside was amazing but it was all through no fault of her own and Horizon was to blame. Now they are trying to get the £215 back it is despicable!
The thing is they filed a discontinuance notice and my daughter was told she could claim the costs of the £215 but she never received it and as you can see on further posts the court stated
"1/The Claimant (Horizon Park) do pay the Defendant’s court fee of £215 by 4pm on 16th February 2021”

Any help would be grateful guys.. I know Coupon Mad and a few others helped us so much last time!! My daughter is in a right state about it. We thought it was all sorted never to be thought of again how wrong we were!
This has just come out of the blue and very stressful ..

Coupon-mad

So they discontinued and she sought her costs back for their unreasonable conduct in litigation, i.e. that they:

- filed a claim to a wrong address (DVLA addresses being notoriously unreliable and the parking industry is well aware);

- had failed to check the address for service first, pursuant to the Court Rules relating to service, and the BPA code;

- unreasonably opposed the Defendant's application to set aside the judgment, despite knowing the claim had been defectively served and that CPR 13.2 meant the set aside would be mandatory;

- put a litigant-in-person through the extreme stress of a contested hearing;

- then discontinued the defective claim and hoped to walk away scot free, despite the Defendant's Draft Order covering the possibility of discontinuance.

As such, the Defendant believes that the learned Judge considering the case at discontinuance stage was entitled to take the view that, when taken together, the Claimant's conduct (including the new discontinuance as the final part of an aggressive and vexatious course of conduct) was wholly unreasonable.

The first learned Judge was not considering unreasonable conduct and ordered accordingly and expected the Claimant to provide a copy of the claim particulars and proceed.

The second learned Judge was faced with a new course of unreasonable conduct and the discontinuance was the issue that led him to award costs on the indemnity basis.

Whilst CPR 38.6(3) - as do many Rules - provides that the provisions of CPR 38,6 do not apply as of right to Claims on the Small Claims Track, it does not follow that a Judge has no discretion to apply such rules in unusual cases of unreasonable conduct, being ever mindful of the Overriding Objective in CPR 1.

The Defendant not being legally represented asks the Judge to consider the White Book and any known authority regarding applying a Procedural Rule at the court's discretion.

Even where a Rule may not automatically apply in every small claim case, the Defendant believes that such a Rule may reasonably be applied for specific cases of unreasonable conduct, by order of a Judge exercising the powers of the court.

Further, this Application comes so late as to be unacceptable to the Defendant who had to borrow to pay the £215 almost a year ago and was entitled to consider that, when the Claimant was ordered to pay those costs back after an unreasonably late discontinuance some six months ago, that the case was over.

The Claimant also complied with the Order and paid the £215 so clearly accepted it by conduct at the time.

Whilst the Defendant does not want to cause the expense of a further hearing and accepts a decision on the papers as to whether this application should be allowed or not, she wants the Judge to take into account that she strongly believes that this application should not be allowed.

It comes far too late, raises no new point of law that could supersede the inherent power of the court and discretion of the Judge to grant costs for unreasonable conduct.  It offends against the Overriding Objective, in the Defendant's view.  There must be certainty and minimal costs, expeditious handling of cases and ultimately, justice when a party is considered to have acted unreasonably, which brings all costs into play.

The Defendant is also in no position to pay £215 in just 14 days if this late application is allowed.


(Then usual WS Statement of truth, signature, date.).  Put the above into a signed and dated Witness Statement and send it to the court and the Claimant stating that the Defendant wishes this Witness Statement to be placed in the Application papers before the matter is put before a Judge.

I can't promise the above will work and (whilst I am not legally qualified and this is only my opinion) they DO appear to have an arguable legal point.  They might get this agreed but she should respond and copy them in and see.

Jenni_D

Have they brought this claim in a timely manner? (It's been 6 months after all). Should the OP include this in their statement in some way?

nikkietoni

Thankyou so much again Coupon Mad for your help will do that.. she is panicking about her ccj thinking they may be trying to get her another one as she received no other letter as they are stating.She has also received no correspondence 

Coupon-mad

Dunno.  Send what I suggested and add her postal address under her signature.

Then next week, she should ring the local court to make sure they've placed her objection on file and she should ask if the court has sent anything to her old address in error, and ask them to re-send, if so.

Redx

Also bear in mind that we cannot give you or her legal advice , just opinions ! You pay a qualified lawyer or solicitor for that , like the claimant has (but do follow any opinions by coupon mad , Johnersh , Bargepole etc )

nikkietoni

Yes of course I understand that.. I was not wanting legal advice just help about a parking company and a parking fine which we had no knowledge of and ended up being an absolute nightmare! Thanks for any help from you guys on here 

Redx

nikkietoni said:

Yes of course I understand that.. I was not wanting legal advice just help about a parking company and a parking fine which we had no knowledge of and ended up being an absolute nightmare! Thanks for any help from you guys on here 

Agreed , but your 4 o clock post is about legal matters and may require bespoke legal advice , nothing to do with parking !

Yes it's a legal nightmare , but I have been advising people on here for over 8 years and not seen anything like this legal scenario !

99% of people here who read it won't have a scooby doo !! So yes it's a nightmare , but a legal nightmare , nothing to do with parking

Good luck , I hope that you get it sorted out ( again ) 👍👍👍

Ps , you are more likely to get gal help on here regarding this matter , unless any qualified legal eagles were to reply  ( C M is a lady , with a big ❤️ )

nikkietoni

Thanks I know I understand what you are saying of course and  She is amazing and  is very knowledgeable indeed.Will get sorted one way or another..I am sure .. thanks for your thumbs up 🤞

nikkietoni

Well the latest in the scandal of the Parking Companies! I understand it is not a legal forum but it just shows you what a Parking Ticket can lead to through no fault of your own! And I wanted to update you...
My daughter received a CCJ from Horizon for a parking ticket she was not even aware of as it was sent to an address where she no longer lived.So she was unable to pay it or contest it!
She was able to get the CCJ overturned and managed to recover the £215 from Horizon/Gladstone Solicitors which is what she had to pay to have the CCJ cancelled and quite rightly she was able to recover it. Horizon?Gladstones paid it without any reference to it being paid under duress.The Court ruled that she was able to receive it. We thought it was the last we would hear about it.
But this was in May 2021 and Horizon/Gladstones decided to try and recover it from her!!! 
She received a letter dated 15th November 2021 which took two weeks to get to her.  It said enclosed was a Skeleton Argument and Trial Bundle as they had gone to the court to make a counter claim for the £215!
But no date one the letter when the trial was going to be....
As you can see from my previous posts on 1st December she had no knowledge of the date having received nothing from the court or Horizon/Gladstones...
We sent the defence pack to the Court and copy to Gladstones Solicitors via recorded post on 6th December as had taken us a few days to sort out the pack and get it printed still not knowing what date the court case would be...expecting to hear any day.
She then received a letter dated 8th December, and once again she did not receive this letter until a few days after...stating the court case had been  held on the 22nd November 2021 and the Judge set aside the order meaning they could seek recovery of the £215 as "that order was drawn in error by the court at the time"
They then gave 30 days for her to pay the £215.
So basically all the hard work and excellent advice from CM was wasted as the court case had gone on with my daughter having had no knowledge of the date.
The papers from the court dated 23rd November 2021 did not reach her until four week later and stating 'The court heard a trainee solicitor by telephone and the defendant not answering two phone calls from the court to the telephone number provided by the claimant and noted on the court file." That is strange in itself because on the letter from Gladstone's dated 15th November containing their bundle they state"We request you contact us at the earliest opportunity to provide a contact telephone number for attendance at the hearing as we currently do not hold one for you on our file and we are ordered court to provide court with details of attendees" We did not provide a telephone number until we wrote the defence and sent it on 6th December as we had no knowledge of the date of the case. And once again this was not in Gladstone's letter dated 15th November . They also put in that letter "further to our previous letter...." But my daughter had received no previous letter from  them since May 2021.
So it appears that she had no chance to attend the hearing and defend herself at all. it was ruled when Horizon Parking Company discontinued that my daughter could claim costs and we have it on a letter. 
We have been advised to counter claim them and we are also worried that they may try to claim court costs from her as well...
a Nightmare