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

longtale_Parker

Thanks for that advice - I will update and share the email but have also created a version of a Draft Order as follows... (too many "And UPON"s?)

DRAFT ORDER

 

IN THE COUNTY COURT AT: MANCHESTER

 

EXCEL PARKING SERVICES LIMITED (Claimant)

 

And

 

 (Defendant)

 

CLAIM No:

 

DATE: 27 September 2022

 

UPON the application of the Defendant, 

And UPON noting that the Claimant failed to meet the court order to submit a compliant PoC to the court, and to the Defendant, prior to the requested date of 9 February 2022 so the case was struck out.

And UPON noting that the Claimant then failed to comply with CPR 23.7 and did not send copies of their application for reinstatement to the Defendant, and at this date has still failed to do so.

And UPON noting that the amended Particulars of Claim (PoC) were eventually submitted to the court on the 27 May 2022, more than three months beyond the date when the case was struck out, and more than 6 years after the original event on which this charge is being claimed (5 February 2016). The court processed and incorrectly allowed the request on the 7 June 2022.

And UPON noting that 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 CPR 23.10, the Defendant would like to apply to strike out the Claimant’s claim.

 

IT IS ORDERED that:

 

1. The judgment dated 13 September 2022 be set aside. Pursuant to CPR 23.4 and CPR 23.7.

 

2. Application costs to be refunded. Or there be no order in respect of costs in respect of this application. 

 

Dated 27 September 2022

longtale_Parker

Updated covering email...  

This email is to object to the Order dated 13/09/2022, in respect of Claim number xxxxx between Claimant xxxx and Defendant XXXX for the following reasons.

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 Defendant, 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. At this time, the Claimant has still failed to send a copy of the 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.

With respect to the above rules, the Claimant failed to comply with the rules set out, having never issued a copy of their application to the Defendant.

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 to strike out the case, more than 4 months after the order requesting compliant PoC 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.

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.

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, and has still failed to send a copy of the application for reinstatement.

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 is 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 date 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

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

longtale_Parker said:

Thanks for that advice - I will update and share the email but have also created a version of a Draft Order as follows... (too many "And UPON"s?)

DRAFT ORDER

 

IN THE COUNTY COURT AT: MANCHESTER

 

EXCEL PARKING SERVICES LIMITED (Claimant)

 

And

 

 (Defendant)

 

CLAIM No:

 

DATE: 27 September 2022

 

UPON the application of the Defendant, 

And UPON noting that the Claimant failed to meet the court order to submit a compliant PoC to the court, and to the Defendant, prior to the requested date of 9 February 2022 so the case was struck out.

And UPON noting that the Claimant then failed to comply with CPR 23.7 and did not send copies of their application for reinstatement to the Defendant, and at this date has still failed to do so.

And UPON noting that the amended Particulars of Claim (PoC) were eventually submitted to the court on the 27 May 2022, more than three months beyond the date when the case was struck out, and more than 6 years after the original event on which this charge is being claimed (5 February 2016). The court processed and incorrectly allowed the request on the 7 June 2022.

And UPON noting that 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 CPR 23.10, the Defendant would like to apply to strike out the Claimant’s claim.

 

IT IS ORDERED that:

 

1. The judgment dated 13 September 2022 be set aside. Pursuant to CPR 23.4 and CPR 23.7.

 

2. Application costs to be refunded. Or there be no order in respect of costs in respect of this application. 

 

Dated 27 September 2022

There are no application costs if you are doing this by email. Remove the word APPLICATION throughout.

And remove:

@Based on the facts outlined above, and CPR 23.10, the Defendant would like to apply to strike out the Claimant’s claim." 

...as that isn't part of any rationale.

I would add:

And UPON noting that 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, and the Claim - including the time to serve POC  - having been statute barred six months earlier.

NB: IANAL so I have not checked if you are right with any CPR you've mentioned.

longtale_Parker

Thanks - great advice!

Coupon-mad

I edited and added a bit more just now.

Le_Kirk

longtale_Parker said:

DRAFT ORDER

 IN THE COUNTY COURT AT: MANCHESTER

 EXCEL PARKING SERVICES LIMITED (Claimant)

 And

  (Defendant)

 CLAIM No:

 DATE: 27 September 2022

UPON the application of the Defendant, 

And UPON noting that the Claimant failed to meet the court order to submit a compliant PoC to the court and to the Defendant prior to the requested date of 9 February 2022 so the case was struck out.

And UPON noting that the Claimant then failed to comply with CPR 23.7 and did not send copies of their application for reinstatement to the Defendant and at this to date has still failed to do so.

And UPON noting that the amended Particulars of Claim (PoC) were eventually submitted to the court on the 27 May 2022, more than three months beyond the date when the case was struck out, and more than 6 years after the original event on which this charge is being claimed (5 February 2016). The court processed and incorrectly allowed the request on the 7 June 2022.

And UPON noting that 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 CPR 23.10, the Defendant would like to apply to strike out the Claimant’s claim.

 IT IS ORDERED that:

 1. The judgment dated 13 September 2022 be set aside. Pursuant to CPR 23.4 and CPR 23.7.

 2. Application costs summarily assessed at £XXX to be refunded. Or there be no order in respect of costs in respect of this application. 

 Dated 27 September 2022

I think you are being too nice; it is an order from the judge so tell it like it is, as if the judge had so ordered it

longtale_Parker

Removed all "my" references to the word APPLICATION, apart from the one referring to the Claimant's failure to send a copy of theirs...

Also added in the referenced CPRs:

DRAFT ORDER

 

IN THE COUNTY COURT AT: MANCHESTER

 

EXCEL PARKING SERVICES LIMITED (Claimant)

 

And

 

 (Defendant)

 

CLAIM No:

 

DATE: 27 September 2022

 

UPON the request of the Defendant, 

And UPON noting that the Claimant failed to meet the court order to submit a compliant PoC to the court, and to the Defendant, prior to the requested date of 9 February 2022 so the case was struck out.

And UPON noting that the Claimant then failed to comply with CPR 23.7 and did not send copies of their application for reinstatement to the Defendant, and at this date has still failed to do so.

And UPON noting that the amended Particulars of Claim (PoC) were eventually submitted to the court on the 27 May 2022, more than three months beyond the date when the case was struck out, and more than 6 years after the original event on which this charge is being claimed (5 February 2016). The court processed and incorrectly allowed the request on the 7 June 2022.

And UPON noting that 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.

 

IT IS ORDERED that:

 

1. The judgment dated 13 September 2022 be set aside. Pursuant to CPR 23.4 and CPR 23.7.

 

2. There be no order in respect of costs in respect of this request. 

 

Dated 27 September 2022

 

Enc:

CPR 23.4, CPR 23.7 and 23.10

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.

 

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

You've missed the extra suggestion I added.

1505grandad

"IT IS ORDERED that:

 1. The judgment dated 13 September 2022 be set aside. Pursuant to CPR 23.4 and CPR 23.7."

Just checking  -  is it in order to state the above, in view of previous posts/copy doc. including the following post:-

"Thank you - I'll contact the court tomorrow to confirm how to submit and who the application must be sent to. The key dates, as far as I can make out are:

Order made by the court 13/09/2022

dcb letter (pack) 22/09/2022

- received by us 23/09/2022"

Coupon-mad

Quite right, it was an Order.