POFA '12 not valid?

henrik777

Lockable said:

Received this by email this morning. I missed their deadline to respond. Today is the day the court order lays down for them to make a proper case or be struck out. Not sure what to make of this & hadn't expected to actually hear back from them. -- 

Dear Madam

Re: Conkai Security Ltd

Claim Number: xxxxxxx

We refer to the above matter.

Please be advised that our client has reviewed your comments and defence.
They have instructed us to put forward the following full and final settlement offer:-

-  Both parties agree to a “drop-hands settlement” whereby our client’s claim is discontinued;

-  Each party bears their own costs;

- Our client will bear the cost of filing the Consent Order at Court which details the above settlement terms

We would be grateful for your response at your earliest convenience and before 12 noon on today (Monday 8thFebruary 2021). In the event that you do not respond within this timescale, we will revert to our client for further instructions in proceeding to the final hearing.

Yours faithfully

 CST LAW 

When did they send that ? In the main because para 5 indicates they had difficulty in contacting their client.  A bold statement if the actually were in contact with them.

Lockable

henrik777 said:

When did they send that ? In the main because para 5 indicates they had difficulty in contacting their client.  A bold statement if the actually were in contact with them.

Sent at 10.25 on the day the court order demanded action by.
So they gave me an hour & half -ish to respond. I didn't see it until beyond their arbitrary noon deadline anyway.

Lockable

Johnersh said:

That statement is woeful. 
1. They couldn't obtain instructions on amended particulars?
First, it appears that none have yet been drafted, so there's little to take instructions on.
Second, are they really saying no-one could answer the phone?
Third, someone obtained instructions to advance settlement proposals on *the last day* (if the offer was without prejudice you may refer to the making of the offer, but not the amount/precise nature of the offer)
Note that if instructed not to file any documents at court, that would amount to an instruction not to comply with a court order:
Chambers v Bucks Healthcare NHS
https://www.civillitigationbrief.com/2014/02/12/chambers-v-buckinghamshire-healthcare-nhs-trust-a-detailed-examination-as-to-why-the-defendant-could-not-adduce-its-expert-evidence/ 
2. If they were unable to file, the correct approach was to apply prospectively for a time extension on the basis that they had no instructions. There is no explanation as to why they allowed time to expire, before seeking an extension. 
3. There is no evidence as to when, how or how often the instructions were sought. There is no proper reason from corporate entities that are better resourced than the defendant. The Ppc should also serve a statement explaining why instructions not provided. 
4. It is not correct to say no prejudice. The poorly pleaded particulars resulted in the order, which have led to default and a further hearing and significant additional time and effort in what is a small claim. The overriding objectives (CPR Part 1) require the court to consider appropriate use of court resources. The fact is that the ppc does not have a good case, failed to act on a peremptory order and it is appropriate to strike out the claim in the circumstances. The claim is already struck out, which is the effect of the order. Accordingly the defendant is obviously prejudiced by reinstating the claim.
5. Really don't cite authorities without making the court of those that don't assist, else you risk misleading the court. So in counter to her submissions, I bring you Oak Cash & Carry v British Gas - defence filed 2 days late was struck out
https://www.bailii.org/ew/cases/EWCA/Civ/2016/153.html 
5. Even if the ppc is successful, This is self evidently their error. The correct order is that they bear the costs of the application and the consequential costs of preparing a new defence. 

This is gold. Many thanks.

Johnersh

FYI I've updated and added to my original comments.

The o/p should make sure to contact the court to (I) either request a hearing or (II) at the very least serve written submissions to object.

The application should have sent to you when it was filed. 

I am unclear what point she makes with Dutton, which concerned an application to strike out, not the breach of a peremptory "unless" order.

Para 39 of that judgment states:
There is greater emphasis therefore – in my judgment rightly – on following the Rules and Orders to prevent the litigation system being overwhelmed. I remind myself of what it says in Rule 3.9 CPR that the Court in considering an application for relief from sanction for a failure to comply with any Court Order will consider all the circumstances of the case including the need for litigation to be conducted efficiently and at proportionate cost and to enforce compliance with Rules, Practice Directions and Orders. To use the vernacular, this is a game-changer. In my judgment, whatever the position might have been in the 1960s and 1970s, in 2016 it is wholly unacceptable to seek to go ahead with a quantum trial some 10 years after the event, having failed miserably to comply with not just one but two Court Orders, when the other side will be prejudiced by so doing. In my judgment therefore it is entirely right that I should strike out this claim.

nosferatu1001

As above

you MUST contact the court. Must. 

If it wasn't clear enough, the fact they contacted you day of the deadline but claimed they couldn't get hold of their client? Seems odd doesn't it. 

And they still haven't filed amended particulars. They don't have an extension yet. The claim is struck out and they're spending even more days being in breach. 

And please. "Remote working" means they couldn't get anyone on the phone? Crap. Utter crap. 

Coupon-mad

I think I would send a written submission objecting to the application for relief from sanctions and showing the court the evidence that this legal firm were in contact with their client.  Use Johnersh's words from his replies.

Lockable

A date has been set by the court for a hearing on the relief of sanctions for Conkai.  It will be a phone hearing. 
I wrote to the court with my objections broadly using the helpful outline laid out by Johnersh above. Circumstances mean I will not be able to be on the call, it's not ideal but I have no alternative, is it possible to nominate someone else, my partner for example, or can I just miss out the call  & rely on a written submission?

Coupon-mad

If this is just a hearing to hear their application, you can't nominate someone else.  So email the court and say you won't be attending - explain why - and say that you understand this is purely a short hearing about the Claimant's application for relief from sanctions, and your objections were emailed to the court on xx/xx/2021 and -you ask that your position and your evidence that the Claimants were certainly in contact with their legal representatives, be taken into account.

Lockable

Coupon-mad said:

If this is just a hearing to hear their application, you can't nominate someone else.  So email the court and say you won't be attending - explain why - and say that you understand this is purely a short hearing about the Claimant's application for relief from sanctions, and your objections were emailed to the court on xx/xx/2021 and -you ask that your position and your evidence that the Claimants were certainly in contact with their legal representatives, be taken into account.

Perfect, thanks.

Lockable

Conkai have been granted relief from sanctions & permitted to resubmit amended particulars after a hearing on the 26th. & despite my written objections based on what advice was offered here.
This is vexing. 
I'm copying and pasting the amended particulars of their claim as I can't attach a file.
In this they admit that they sent the NTK 122 days after the alleged incident so it seems to me that POFA can't apply but I don't know if that alone is strong enough, also their signage seems to be a mess.
They lost a POPLA case on the signage at this site years ago based on it not really being a breach of contract as it doesn't make a coherent contract. 
As ever, advice on how destroy their case is welcome. 
------

IN THE COUNTY COURT AT OXFORD CLAIM NO. xxxxxx
BETWEEN:-
Conkai Security Ltd
CLAIMANT
AND
xx
DEFENDANT
PARTICULARS OF CLAIM

1. The claim is for unpaid parking and collection charges for parking in a private car park
managed by the Claimant. The Defendant contravened the Claimant’s displayed terms
and conditions in the car park located at Kingston Court, OX2 6ES (“the site”).

2. Any vehicle observed in breach of these terms and conditions will be liable for a £100.00
parking charge notice (“PCN”), which is discounted to £60.00, if motorists pay the PCN
within 14 days of the date the PCN was issued.

3. The Claimant issues parking charge notices either by issuing the notices to the vehicles
or the details are manually recorded and the PCN’s are then issued by the post once
details have been received from the DVLA. With regards to this PCN, the PCN was affixed
to the vehicle at the time of the contravention. Please see enclosed PCN here to at “CSI”.

4. The vehicle bearing the registration xxxxxxx was identified on 2015-11-03 to have
breached the terms and conditions of the site, namely the said vehicle was observed
without a valid permit on clear display.

5. The site is private land and is managed by the Claimant to implement and set the terms
and conditions. Any motorists who enter the site an remain on private land are deemed
to have accepted those terms and conditions. The Claimant has a right to enforce the
terms of the Contract as it is settled that individuals. The offer is detailed on the warning
notices, the acceptance is the act of parking, the consideration is the contractual license
and the consequences of a breach is a PCN being levied against the vehicle. The
Defendant has been identified in breach by the said vehicle being parked at the site
without a valid permit on clear display. Please see attached notices on display, site plan and agreement hereto marked “CS2”.

5. The Defendant did not respond to the PCN having been affixed to the vehicle, so the
Claimant made a request to the DVLA for details about the vehicle. The DVLA provided
the Defendant’s details as the vehicle's keeper at the time of the contravention. Please
see attached hereto marked “CS3.”

7. A notice to the keeper letter was sent to the Defendant dated 4/3/2016, please see
enclosed hereto marked “CS4”. The second page of the notice to the keeper letter is a
generic format. The Defendant did not make the Claimant aware of the name and
current address for service of an alternative driver within 28 days from which the
notice was given as stipulated under Schedule 4 of the Protection of Freedoms Act 2012 (“POFA 2012”).

8. Therefore, the Claimant has the right to recover from the Defendant the unpaid parking charges.


9. Debt recovery and legal charges of £60 have been added to the original PCN charge of
£100 due to the Claimant requiring to pass the PCN debt to a debt recovery firm to
recover the charge. The sum of £60.00 is not at all out of proportion and falls well within
the fairness test. The Defendant was aware of the additional costs that would be
incurred and such a term was not unreasonable as the Defendant was given the
opportunity to either refuse or pay the PCN within 28 days of the issue date.

10. It is submitted that the Claimant was entirely within their right to seek recovery of a
contractual term pursuant to the terms of the contract with the Defendant in fine with
the Terms and Conditions of payment.

11. In support of the above authorities, important reference is made to the case Cavendish
Square v Makdessi and ParkingEye v Beavis in the sense that his Judgment was
consistent with the approach to penalty clauses taken by the Supreme Court of which
has now drawn a distinction between what is considered a ‘liquidated damages clause’
which is legally enforceable and, a ‘penalty clause’, which is not.

12. The modern approach to the old Dunlop principles is the law on penalties should now
apply only where the provision is a secondary obligation which imposes a detriment on
the contract breaker out of all proportion to any legitimate interest of the innocent
party in the enforcement of its primary obligation.

13. The Claimant avers that the contractual clause stems from an indemnity which is a
primary obligation. The Court should not decline to assess such a figure so long as it is
supported. A trial Judge would reach a decision based upon the inherent discretion
available to them pursuant to Section 51 Senior Courts Act or Civil Procedure Rules 44.3.

14. There is a commercial and legitimate interest in recovering contractual costs as the
Claimant is not in the business of collecting debt and issuing legal proceedings. The
business is predominately providing a parking scheme and generating a profit upon the
understanding that when a charge is levied as a result of a user’s failure, such a charge is
payable within 28 days.

15. Given that the Claimant has had to take steps to recover the PCN the contractual clause
(otherwise known as the indemnity clause) has kicked in, which flows from the breach.
There is a commercial and legitimate interest to recover the PCN in order to pay for the parking scheme and it is an

 entirely normal provision to seek costs in recovering that charge.

16. The Claimant also refers to the IPC Code of Practice Part E Schedule 5- Parking Charges
which states the following:
“Where a Parking Charge becomes overdue a reasonable sum may be added. This sum
must not exceed £60 {inclusive of VAT where applicable) unless Court Proceedings have
been initiated.’

17. The debt recovery charge included within the Claim does not exceed £60.00 and
therefore is in accordance with the IPC Code of Practice. Motorists are made aware by
way of the warning signs erected in the Car Park that if payment is not made in
accordance with payment terms stated on the Parking Charge Notice, they agree to pay
the Claimant interest and any additional costs incurred on an indemnity basis. Thereby
rendering the charge fair under Consumer legislation.

18. The site where the contravention took place is private land and therefore qualifies as
"relevant land” under Paragraph 3 of Schedule 4 Protection of Freedoms Act 2012.

19. The Claimant contends that the Defendant is indebted to them in the sum of £160.00 accordingly.
And the Claimant claims: -
a) £160.00
b} £ 60.11 interest thereon in accordance with Section 69a of the County Court Act 1984 at the
rate of 8.00% p.a. calculated from the date upon which payment became due to the date of issue.
c) Further interest at the rate of £0.04 per day (8.00% p.a.) to Judgment or earlier payment.
d) Costs