Imperial War Museum North - Excel Parking Services Ltd. Amount claimed £288.52 from 05/02/2016!

Umkomaas

The C did not send us a copy of the Application to Reinstate nor their supporting evidence

The C did not send us a copy of the Application to Reinstate nor their supporting evidence to the Defendant (then state the issues that has given you). 

longtale_Parker

I'm not really sure how to start and end the request, but here is the basis of the argument, with references (which makes it a bit of a heavy read...)

The Defendant denies that the Claimant is entitled to relief from sanctions pursuant to CPR 3.9, included below for ease of reference:

Relief from sanctions

3.9

(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –

(a) for litigation to be conducted efficiently and at proportionate cost; and

(b) to enforce compliance with rules, practice directions and orders.

(2) An application for relief must be supported by evidence.

The Claimant failed to meet the court order to submit a compliant PoC to the court, and to the Claimant, prior to the requested date of 9 February 2022 and the case was struck out.

Having failed to comply with the original rule or court order, the Claimant then failed to comply with the following rules and did not send copies of their application for reinstatement to the Defendant.

Notice of an application

23.4

(1) The general rule is that a copy of the application notice must be served on each respondent.

(2) An application may be made without serving a copy of the application notice if this is permitted by –

(a) a rule;

(b) a practice direction; or

(c) a court order.

(Rule 23.7 deals with service of a copy of the application notice)

Service of a copy of an application notice

23.7

(1) A copy of the application notice –

(a) must be served as soon as practicable after it is filed; and

(b) except where another time limit is specified in these Rules or a practice direction, must in any event be served at least 3 days before the court is to deal with the application.

(2) If a copy of the application notice is to be served by the court, the applicant must, when he files the application notice, file a copy of any written evidence in support.

(3) When a copy of an application notice is served it must be accompanied by –

(a) a copy of any written evidence in support; and

(b) a copy of any draft order which the applicant has attached to his application.

(4) If –

(a) an application notice is served; but

(b) the period of notice is shorter than the period required by these Rules or a practice direction,

the court may direct that, in the circumstances of the case, sufficient notice has been given and hear the application.

(5) This rule does not require written evidence –

(a) to be filed if it has already been filed; or

(b) to be served on a party on whom it has already been served.

 

Further, the application for reinstatement, and the amended Particulars of Claim (PoC) were eventually submitted to the court on the 27 May 2022, more than three months beyond the date of the court order, and more than 6 years after the original event on which this charge is being claimed (5 February 2016). The court processed and allowed the request on the 7 June 2022.

Having received judgment, allowing the case to be reinstated, the Claimant did not send the amended PoC and court order to the defendant until after the 22 September 2022.

Based on the facts outlined above, and case rule 23.10 below, the Defendant would like to apply to strike out the Claimant’s claim on the following basis:

A. The respondent to an application should be served notice unless there is reason for it to be ex parte (such as an injunction, where notice would defeat the purpose)

B. The application after strike out and after the statute of limitations applied materially prejudices the defendant, extending the currency of the litigation beyond the period intended by Parliament and inevitably compromising the defendants ability to respond or obtain evidence. It's not enough that the claim was issued, since objectively the particulars never complied with the cpr requirements.

C. There being no good reason for failure to comply with the preceding order until after strike out and expiration of limitation.

Application to set aside or vary order made without notice

23.10

(1) A person who was not served with a copy of the application notice before an order was made under rule 23.9, may apply to have the order set aside(GL) or varied.

(2) An application under this rule must be made within 7 days after the date on which the order was served on the person making the application

Coupon-mad

Further, the application for reinstatement, and the amended Particulars of Claim (PoC) were eventually submitted to the court on the 27 May 2022, more than three months beyond the date of the court order, and more than 6 years after the original event on which this charge is being claimed (5 February 2016). The court processed and allowed the request on the 7 June 2022.

After the above para I would add:

The Defendant was unaware of any of this; having never received an amended Particulars of Claim (POC) and having not been copied into the very late application. The first the Defendant knew about any of this matter was last week, over seven months after the case had been thrown out and seven months past the expiry of the limitation period for a claim (and POC) to be served.


See what @Johnersh thinks but I think you should make a formal N244 application and include a Draft Order for the Claimamt to be ordered to reimburse your court fee.  I think an email won't cut it, then you will be told you are too late to object.

I wonder if Johnersh's 'the claim is dead' argument and a case authority should be used, to show that the court erred.

longtale_Parker

Coupon-mad said:

Further, the application for reinstatement, and the amended Particulars of Claim (PoC) were eventually submitted to the court on the 27 May 2022, more than three months beyond the date of the court order, and more than 6 years after the original event on which this charge is being claimed (5 February 2016). The court processed and allowed the request on the 7 June 2022.

After the above para I would add:

The Defendant was unaware of any of this; having never received an amended Particulars of Claim (POC) and having not been copied into the very late application. The first the Defendant knew about any of this matter was last week, over seven months after the case had been thrown out and seven months past the expiry of the limitation period for a claim (and POC) to be served.


See what @Johnersh thinks but I think you should make a formal N244 application and include a Draft Order for the Claimamt to be ordered to reimburse your court fee.  I think an email won't cut it, then you will be told you are too late to object.

I wonder if Johnersh's 'the claim is dead' argument and a case authority should be used, to show that the court erred.

Thanks CM,
I have added the new para and was reading through the guidance for sending in an N244 form. Within the guidance there is a section stating 

"The court will only deal with the application ‘without a hearing’ in the following circumstances.
• Where all the parties agree to the terms of the order being asked for;
• Where all the parties agree that the court should deal with the application without a hearing, or
• Where the court does not consider that a hearing would be appropriate."

I again rang the court to ask them if a hearing had taken place and a very nice lady confirmed that the request was indeed submitted ex parte (thanks Johnersh) and that a hearing appears not to have been deemed necessary according to the circumstances above. Given that we had not been copied, the first two bullets cannot have applied, so it must have been that the court considered a hearing would not be appropriate. The nice lady also said the application should have been sent to me with the new court order - it has not been. All we have received is a brief cover letter, the court order, instructions for how to pay, an amended PoC and an AoS form.

Again, it seems that dcb/ Excel are picking and choosing the rules/ laws they will abide by and doing all they can to make a defence as difficult as possible... and the court are letting them!

We finished the call with a suggestion (not advice) from the nice lady, that we should submit my arguments via email, but also include a request for additional time if they were to insist the N244 is required - given that we have had very little time to consider our position and seek legal advice.

Coupon-mad

That sounds very helpful.

longtale_Parker

Thank you

Having added your suggested para to the email, do you think this would be a good final paragraph so I can send it first thing in the morning...

Should the court be minded to either reject this request, via email, I would respectfully request additional time be made available to consider the risk of submitting form N244, and making the requisite payment of £275, along with a request that the Claimant be forced to reimburse this cost if the court agrees that the Claimant has flouted a number of rules, failed to comply with numerous legal deadlines and has delayed communicating with the Defendant within a reasonable timeframe, in an apparent attempt to weaken our ability to defend this claim.

Umkomaas

longtale_Parker said:

Thank you

Having added your suggested para to the email, do you think this would be a good final paragraph so I can send it first thing in the morning...

Should the court be minded to either reject this request, via email, I would respectfully request additional time be made available to consider the risk of submitting form N244, and making the requisite payment of £275, along with a request that the Claimant be forced to reimburse this cost if the court agrees that the Claimant has flouted a number of rules, failed to comply with numerous legal deadlines and has delayed communicating with the Defendant within a reasonable timeframe, in an apparent attempt to weaken our ability to defend this claim.

As a single sentence, I think it's too long. Break it into two, or maybe three, snappier points. 

Should the court be minded to either reject this request,

The use of the word 'either' in the sentence suggests there should be an 'or' later in it. I can't see one.

longtale_Parker

Umkomaas said:

longtale_Parker said:

Thank you

Having added your suggested para to the email, do you think this would be a good final paragraph so I can send it first thing in the morning...

Should the court be minded to either reject this request, via email, I would respectfully request additional time be made available to consider the risk of submitting form N244, and making the requisite payment of £275, along with a request that the Claimant be forced to reimburse this cost if the court agrees that the Claimant has flouted a number of rules, failed to comply with numerous legal deadlines and has delayed communicating with the Defendant within a reasonable timeframe, in an apparent attempt to weaken our ability to defend this claim.

As a single sentence, I think it's too long. Break it into two, or maybe three, snappier points. 

Should the court be minded to either reject this request,

The use of the word 'either' in the sentence suggests there should be an 'or' later in it. I can't see one.

Thank you for that, I was thinking they may reject it completely or insist I submit the form...

I'll break it down to make it clearer

longtale_Parker

how's this...?

Should the court be minded to either reject this emailed challenge or determine the same questions be submitted in a formal application, the Defendant would respectfully request additional time be made available to consider the risk of submitting form N244, and making the requisite payment of £275 (against a claim of £288.52).

The Defendant would also request, if the form is required, that the Claimant be ordered to reimburse this cost if the court agrees to strike out the claim on the basis that:

a)     the Claimant has flouted a number of rules and did not copy the Defendant when submitting their application,

b)     failed to comply with numerous legal deadlines, not least the statute of limitation of the alleged event, and

c)     has delayed communicating with the Defendant within a reasonable timeframe, in an apparent attempt to weaken the Defendant's ability to defend this claim.

Coupon-mad

I reckon you should actually attach a Draft Order to that email, saying what you've said there in your last reply but within a (word document) Draft Order.

A Draft Order assists the Judge and might get them on your side to handle it without an application.

A bit like this one by Debunked but also look at our replies as it's nothing to do with CPR 13: 
https://forums.moneysavingexpert.com/discussion/comment/79503754/#Comment_79503754

Also i think at the start of your email, use the word 'object' (i.e. this email is to object to the Order dated xx/xx/2022 for the following reasons...) so it is immediately clear what it is about.