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

longtale_Parker

The reasons...

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

Le_Kirk

longtale_Parker said:

The reasons...

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.

Did you mean defendant? 

Coupon-mad

It is a hearing you should attend in person!  It is to consider their application and your objections.  Go along and be heard in person, otherwise a slick lawyer will walk all over your objection.

I think you need case law to support your position that the court should not have allowed the Claimant to effectively extend the limitation period, hence I hope @Johnersh sees this.  The good news is you can send case law later, appended to a Skeleton Argument.

The week before the hearing is fine. 

Get your WS objection drawn up & emailed in time anyway! Come back to remind us in January and to ask for any useful case law to attach to your skeleton argument.

Johnersh

I would do a more formal statement if it were me. Yes, this is a hearing. It will happen.

The arguments (at a glance) appear to be

1. PoC struck out
2. PoC served late (so out of time)
3. By the time that C sought relief primary limitation had expired
4. Had D been aware of the application or C obtained relief, D would have applied to set aside because of prejudice in pursuing claim after limitation.
5. The terms of the application signed and verified with a statement of truth were misleading and no explanation was provided for the failure to serve prospectively
6. The court and the defendant has been put to additional cost as a result of the claimants failures. 

Also note that when filing detailed particulars there is a need to set out full t&cs of the contract. If they've not, the amendment may be defective. 

Cases worth a look may be:
Denton v TH White
Hashtroodi v Hancock
Croke v NatWest
AEI v Alstom
Chelsea Bridge Apt Ltd v Old Street Homes 

CPR 1, 16, 23, limitation act 1980, 


As ever, your case, your arguments. We've not seen all the papers. Only you have. 

Good luck.  

longtale_Parker

Le_Kirk said:

longtale_Parker said:

The reasons...

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.

Did you mean defendant? 

I did, sorry

Johnersh

Goes without saying that the claimant should explain clearly the reason for delay in applying for relief from sanction. One may accept a computer system going offline but that shouldnt inhibit a timely application for relief. Nor should anything be left to the last minute. The case law on service is littered with cases where action is only taken at the last second.

All of that needs to be explored in detail by the person who had conduct of the file. If the claim is now out if time 

longtale_Parker

Thank you both/ all for your guidance. I'll step through Johnersh's comments if you don't mind a broken-up read... and will try to turn these notes into a "formal statement" (though I'm not necessarily sure what that entails)

Arguments 1, 2 & 3 (above) all seem factual and can't be argued by C
Because of those indisputable facts, argument 4 would have been followed
Argument 5 is where I need to focus, I feel. The signed Application (N244?) refers to an "attached witness statement". When DCB eventually sent me a copy of the amended PoC and Order (ref page 8 of this thread) they did not send a copy of the N244 nor did they send the witness statement used in support. I now have the N244 and witness statement (from the Court)
Argument 6 still exists - the amended PoC contains apparent extracts from a contract, but DCB/ Excel have still not responded to multiple SARs.
I'll add images of the Application and witness statements below, and will call out some of the arguments/ questions that I can spot...

Thank you

longtale_Parker

As far as I understand, the C cannot submit an application "without a hearing" unless both parties agree to this? We were never asked and would not have agreed to this...

I also don't understand why they have said N/A for the question "who should be served with this application?" - should this not be the D?

longtale_Parker

The witness statement opens with a description of what the C does, and why. I'd argue their primary reason is to generate income for their own business rather than to manage how motorists are permitted to park - so, if they aren't being truthful about the client's primary purpose, what hope is there that the rest is true! (though this is wry humour and won't form part of my official argument)

longtale_Parker

Item 8 gives a brief explanation for the failure to comply (expanded slightly in the next page)

Item 9 however is an opening I feel, because allowing a late request to extend an already time-expired claim and order, which are more than 6 years and more than 3 months expired, is not "in the interest of correct administration of justice" and nor is it a proportionate or just solution for the Defendant - it simply extends the limits for the administration of justice solely in favour of the Claimant, who had not taken appropriate steps within the 6-year period allowed.