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

longtale_Parker

The next page of the witness statement (penultimate page!) goes on to provide a bit more of an explanation of the IT failure - though not too much.
The explanation merely describes the proposed results of the error, for this case - I would be interested to understand the nature of the failure, not so much when it was recognised but what change had caused it to occur, when that change was applied and how many other cases were (or could have been) impacted.

The statement asks the court to consider the seriousness or significance of the failure and states (para 15) that DCB "did comply with all other directions" - I know this is not true because they failed to inform us of their application or this supporting witness statement).

Para 16 seems irrelevant to me: it has nothing to do with the seriousness or significance of the failure, but neither does it seem that they are confident the problem is resolved. For such a core system, they have not implemented testing procedures, but are merely "taking steps" to do so - which means they could still be having problems and may be relying on this same argument in the future.

Para 17 suggests the has been no prejudice caused and the detail in the defence could not have been improved if the "Particulars" did not require amendment - referencing Johnersh's comment regarding full t&cs, these still haven't been provided.

Para 18 - simply poses the question about seriousness or significance, although the previous paras don't seem to relate to the significance of the failure on this case... which is that it would otherwise be out of time

So, if the Court determine the breach was serious or significant (as it would otherwise be stayed - so yes, it seems pretty significant to me) DCB advise the second test of "Was there a good reason for the breach"

Para 19 opens with "there is never a good reason".

It does go on to provide a timeline: received the order on (Monday) 17/1/22 and, for some reason scheduled [a task?] the amended PoC to be filed and served on (Thursday) 3/2/22 - 14 working days later. I suspect the delay in scheduling this task is to minimise the D's time to seek advice and respond but, aside from the timeline, there is no explanation as to what caused the task to be "deleted from the schedule as the details of such were removed". DCB then refer to the Claimant's intention to comply - rather than their own failings (is this significant at all - should it be the C's case is stayed and they need to be compensated by DCB?). I have some knowledge of IT systems, case management and scheduling etc. and wondered whether it would be reasonable to request further statements and/ or proof from DCB's developers regarding the time, cause and effect of the claimed malfunction? It seems more likely that someone simply missed a task, or this forum would be swamped with late claim threads

longtale_Parker

The final page of the WS (barring the signature page) again mixes up the responsibility and desire to comply.
Para 20 states "my Company (DCB) would not have made this Application if they did not intend to comply with the Court Order" - previously it was the Claimant who wanted to comply (though are they parts of the same organisation?).

Para 21 "describes" how - eventually (in May) - someone happened across and went into "the file" and discovered the error (was this the only impacted case in 3 or 4 months - what checks have DCB completed and what actions taken on all other scheduled tasks in their system)

Para 22 "describes" how the application was made promptly upon noting the failure - so assume this was in May, 3 months late

Para 23 - is laughable. Referring back to the Claimant this time, DCB suggest "the Claimant has complied with all other previous Orders". To my knowledge this is not true in the slightest, as all the [Court] Orders have been dealt with by DCB and not all of them have been fully complied with (PoC is missing t&c detail)

Para 24 shows third party conjecture - "The Claimant believes...". Any belief the Claimant may have must come from assertions by DCB and not in reference to the claim they have made, their own behaviour or any reference to the law. They are only denied the opportunity to bring their case because the time limit had expired. Even if, as they claim, they were due to file on the 3/2/22, that was 2 days short of the 6 years they'd had to pursue this case; if they thought it was strong, why wait until lockdown caused them a loss of income to trawl through old claims. 

Para 25 is also untrue. prejudice has been caused to the D because, if the Application was rejected the case would be stayed and the D would not have the stress of an impending case and would not need to commit much more time than DCB to research and seek advice

Para 26 - There should be an allowance for D's cost, if an Application needs to be submitted to fight this new request. The direct admin cost for the D to the Court is almost equal to the excessive amount claimed. As previously suggested, costs should be covered or no costs incurred?

Johnersh

First, we should consider if the first order was an unless order ie. Unless the amended particulars were served the whole claim was struck. If so there is a breach of a peremptory order in addition. Clarify that. 

In terms of the statement, I'd start with a timeline rather than a critique. That will highlight the breaches. 

I would then make the observation that having read the statement the person giving the statement provides no first hand account of who did what or a proper explanation as to how the failure was identified if it was purely a systems failure. Some individual (a) was responsible for diary entry (b) at some point realised (c) started work on particulars and (d) Who and on what dates? This is not a pure system error. It is at best opaque as an explanation and arguably disingenuous. 

I would then deal with the Denton test and any cases to support your case. 

There is no good reason. C has to concede that. However the failure to act promptly (hence the questions above) and, in any event, before limitation expired is prejudicial. The failure has already caused the costs of an additional hearing and court resources to be expended. 

My argument would be that once the particulars were struck and no amendment filed in accordance with the order, the claim essentially  failed. The particulars were always defective, which is why they were struck out. D is entitled to certainty of knowing whether there is a case against them and what that is. Come February and certainly after primary limitation expired D was entitled to regard themselves as being safe from further proceedings. 

The claimant neither made the application on notice nor informed the defendant to seek agreement. The application was never served (itself a CPR breach) 

The claimant applied after the expiry of the limitation period to reinstate the claim, which was obviously prejudicial given that primary limitation had passed. In short, the claimant never served a fully particularised within the period provided for by parliament in the limitation act 1980. Vinos v M&S is clear (albeit in the context of the claim form) the perils a party faces with late issue and defective service. Notably the particulars are a requirement of the claim form. There is more slack for late service of particulars, but these come more than 3 months after their permission to have a second bite at the cherry. 

The situation has arisen as a result of the claimant

1. Waiting until the last to issue
2. Serving defective particulars
3. Failing to serve amended particulars as directed
4. Applying for relief late (not promptly) 
5. Seeking relief on the papers either to avoid a contested hearing where they must have known that it risked be challenged or to avoid payment of the necessary £255 hearing fee (breaching notice provisions in the CPR) 
5. Seeking relief after the expiry of limitation.

The amended particulars need to state the complete wording of the parking contract (sign). If they do not that means they remain defective. It could be fatal. 

longtale_Parker

That is amazing!
Thank you for taking the time to review this. I'll draft a statement and share for comment
  

longtale_Parker

With reference to Johnersh's question on the original Order...

IT IS ORDERED THAT
1.The Particulars of Claim do not comply with CPR 16.4(1)(a) and are by this Order struck out

I can get the original copy and post on here tomorrow if needed/ helpful

Thanks

Johnersh

@longtale_Parker - It's the next bit.... The bit about them serving an amendment that I think may be relevant. It's how it is expressed and whether it operates to debar the claim if no amendment goes in.

Another thought that occurred is the dates on the application and the amendment. Are they different? That may give insight as to whether they acted promptly. 

Even once they realised the issue, they still didn't rectify the issue by serving it on you. The breach continued daily. That alone (arguably) continues the breach and prejudice to D.

Google relief from sanction - all the cases involve prompt action and rectification. 

longtale_Parker

Thank you - I'll post the copy here.

The dates of the application and the amendment are the same - 27/5/22, as is the date of the (supporting) Witness statement. I guess it makes sense that the witness statement and application are the same, but the PoC should have been amended immediately the failure came to light again, whereas it seems DCB investigated and fixed the problem (as stated in the WS) before updating the PoC. I expect the investigation may have taken up to a week to pinpoint such an "IT malfunction" that would cause a scheduled task to be randomly deleted, then there'd be some time to engage a separate IT company to change, test and implement the code/ fix. 

Is it worth asking in my WS precisely when the error was spotted, and by whom, and then asking for a timeline to implement the fix? It seems unlikely that the PoC was only amended on the same day as the application and WS. It is the same person signing all three docs but would they really have waited for an IT fix before getting the paperwork ready?

longtale_Parker

Here's the Order from January...

longtale_Parker

First draft of my statement... Thank you

Timeline:

05 February 2016 alleged car parking event

13 August 2021 a claim was issued by Court

15 September 2021 Defendant filed and served their response to the claim

10 January 2022 The Court Order determined that the Particulars of Claim submitted by the Claimant’s representative (DCB) did not comply with CPR 16.4(1)(a) adding the Claimant must file and serve particulars by 9 February 2022.

9 February 2022 The Claimant failed to comply with the Court’s Order of 10 January 2022 and, as such, there was a breach of a peremptory order and the case was struck out.

27 May 2022 DCB, acting for the Claimant, completed an N244 Application notice, requesting relief from sanctions, owing to a reported system error. The N244 asked for the application to be dealt with ‘without a hearing’ – although the Defendant had no knowledge of the application and therefore had not agreed with the Claimant that a hearing was unnecessary.

Subsequently (date unknown) DCB filed the N244 Application and amended PoC with the Court, along with a supporting witness statement but the Claimant failed to comply with CPR 23.7 as they did not serve a copy of the Application, amended PoC or witness statement with the Defendant.

13 September 2022 A new Court Order was issued reinstating the claim, based upon the application, Statement of Truth and witness statement from DCB.

23 September 2022 Defendant received a copy of the amended PoC and a Court Order from DCB. There was no supporting witness statement nor a copy of the N244 Application. The Order gave the Defendant an opportunity to submit an amended defence by the 13 October 2022 although, at that time, the Defendant had no knowledge of the basis for the reinstatement.

28 September 2022 Defendant emailed an amended defence, and draft Order requesting that the Order to reinstate should be overturned, due to the Claimant’s failure to meet the court order to submit a compliant PoC to the court and to comply with CPR 23.7 when filing the N244.

19 December 2022 Defendant received a pack (from the Court) containing the N244 and witness statement, amended PoC and Court Order, giving the Defendant until 23 December 2022 to file and serve a witness statement in opposition to the application, and with a hearing date for the application of 25 January 2023.

Having set out the facts above, my objection to the Application to reinstate is based upon the following:

(1)   The defective Particulars of Claim was struck out on 10 January 2022 and the Claimant did not comply with the Order to submit amended Particulars of Claim because of (witness statement, Para 13) “incorrect process being followed”. DCB also accepts in their witness statement (15) “there is no excuse for failing to file the amended Particulars of Claim”, and in (19) “there is never a good reason in failing to comply with an Order”.

(2)   Contrary to DCB’s witness statement, the Claimant has not complied with all Orders – specifically, they applied for relief from sanctions with an application to be dealt with without a hearing, even though they had not served the Defendant with a copy of the Application or witness statement, in breach of CPR 23.7.

(3)   The witness statement claims the Order dated 10/01/2022 was received by DCB on the 17/01/2022, yet the task for the PoC to be “drafted and filed with the Court and served on the Defendant on the 03/02/2022”. The explanation of what this “task” entails is poor but, although the date is 6 days ahead of the due date, this would be a manual task, diarised in the CMS to be started on 03/02/2022; the reality therefore is that it may take a number of days to research and complete the task and then for it to be filed and served. It is disingenuous for DCB to suggest that the amended PoC would have been filed “6 days ahead of the due date”.

(4)   The claimant applied after the expiry of the limitation period to reinstate the claim, which is obviously prejudicial given that primary limitation had passed.

(5)   The Claimant never served a fully particularised claim within the period provided for by parliament in the limitation act 1980. Vinos v M&S is clear (albeit in the context of the claim form) the perils a party faces with late issue and defective service.

(6)   The amended Particulars of Claim were not dealt with promptly, upon discovering the previous failure to comply. The witness statement, referring to realising, investigating and fixing the IT system malfunction, claimed to have been the source of the delay, is dated the same day as the amended Particulars of Claim – this would suggest that DCB did not resolve the non-compliance as soon as possible, but waited for a third party to fault-find, repair and test their computer-based case management system before correcting their error and resubmitting the amended Particulars of Claim.

(7)   The amended Particulars of Claim still fail to include the full T&Cs relating to the agreement between the Imperial War Museum and Excel, nor does the witness statement provided relate to or include any of the purported signage on which the contractual obligation is asserted; the witness statement only refers to the failure to comply with the Court’s Order.

(8)   Having read the witness statement, it seems the person making the statement provides no first-hand account from “the team member entering the file”, to provide a proper explanation as to how the failure was identified. nor does the witness statement disclose when this check took place. These facts would be key to determining whether prompt action was taken to correct the defective PoC.

(9)   The witness statement does not provide a proper explanation as to what kind of systems failure was identified and whether it was purely a systems failure. It can be assumed that an individual (a) was responsible for creating (inputting) a diary entry for a manual task (b) at some point realised the amended PoC had not been drafted, filed or served (c) started work on the PoC and N244 Application.

(10)   The witness statement should include first-hand witness statements from these individuals to clarify Who and on what dates these actions took place.

(11)   If this is a pure system error, the explanation is at best opaque as an explanation and arguably disingenuous to suggest that only this case was impacted, and the issue only recognised and resolved some months later.

(12)  The witness statement also presumes, falsely, that “no prejudice has been caused to the Defendant”. This is a spurious claim, and patently untrue. The anxiety caused by reinstating an already time-expired claim, for which a hearing is scheduled almost 7 years after the event does cause prejudice; this was, and remains a weak claim, evidenced by the delay of almost 6 years in pursuing the matter.

(13)  The Defendant has, rightly, tried to put this behind her and has spent many hours and days researching and preparing an indisputable defence, having been provided very little information regarding the basis of the claim and, as is apparent from the schedule referred to in the DCB witness statement, the intentional late serving of documents.

(14)  The Claimant also has failed to respond to several Subject Access Requests (SAR) and both the Claimant and DCB have ignored requests for full terms of the agreement between Excel and IWM in relation to this car park, and for full photographic evidence from the day in question; to support the Defendant’s position that the car had entered the car park to drop off family members and subsequently returned to pick them up again – which complies with the terms (omitted from the PoC and not referenced in the witness statement) that a maximum period of 15 minutes parking is allowed without a ticket.

<Pic of old signage from earlier in thread>

longtale_Parker

Supplementary view, showing predominant signage and the position of the parking t&cs. If driving in from the left, as I would, a driver would be turning off a main road, in an very busy industrial park (Trafford Park), and potentially holding up any following traffic to read the sign. It is reasonable to suggest that, given the number of more prominent signage, the t&cs could be missed by a driver entering the car park.