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

Johnersh

So it's para 3. Upon failure to comply the claim was automatically struck out. 

The correct course for C upon realising the error would have been to issue fresh proceedings (if within time). Cheaper too. 

Instead, after the claim is, in addition, statute barred, they have attempted to salvage it by an application. The fact that they may not be able to now pursue the claim is:

1. within the contemplation of the original order
2. Arises because of procedural failures which havent been properly explained (including the preparation of adequate PoCs in the first place) 
3. Arises because C chose to litigate so close to the limitation period (giving less time to rectify any error)

Arguably the first application was defective/misleading, since it fails to make clear that reinstating the claim now is to restore a case which could no longer be brought in law.

I would not append photos since that suggests you have a copy of the contract you ask for. 

*Read* all of the cases you rely on.

You have the points you need, but that currently doesn't scan. It jumps around a little and in some places makes similar points more than once. It looks like 7 people drafted it.

Points suggested to you are to help phrase your arguments. I hope that makes sense? 

I need to get back to the paid gig, but others may help... 

longtale_Parker

Thank you, it does make sense - and the repetition is noted!

I'll go through the cases too...

longtale_Parker

I don't really know which case best supports our objections, or if/ how to shoehorn in numerous references. I'll copy different efforts below - any suggestions please (acknowledging your commitments)...

The case notes are in italics and my argument based on that is in black (I plan to remove the italics text from the submission, but will reference the case)

Denton v TH White

The new approach can be summarised as follows:

1. Identify the default and assess its “seriousness or significance”: relief will usually be granted for breaches which are neither serious nor significant (the word “trivial” used in Mitchell has been dropped);

 The decision to allow relief from sanctions in this case is serious and significant because it allows a case to progress when otherwise it would be statute barred. The case was originally struck out due to being submitted with a defective PoC. Arguably the late application itself was further defective/misleading, since it fails to make clear that reinstating the claim now is to restore a case which could no longer be brought in law.

1. Consider why the default occurred (i.e. whether there is a good reason for it);

The default arises because of procedural failures which haven’t been properly explained (including the preparation of adequate PoCs in the first place). The application suggests a member of the team received the order but instead of actioning it, they entered the details into the CMS intending it to be dealt with 14 days later, just “6 days before the due date” Claiming that a system malfunction was the cause of the breach does not account for the planned delay in actioning the task.

The default also arises because C originally chose to litigate so close to the limitation period (giving less time to rectify any error) and the Claimant/ Claimant’s legal representative previously submitted a defective PoC over 5 years after the claimed event and did not allow themselves sufficient time to recognise and rectify any errors.

1. Consider “all the circumstances of the case, so as to enable [the court] to deal justly with the application”. It is not the case that an application for relief from sanctions for a non-trivial breach for which there was no good reason will automatically fail. The particular factors mentioned in the rule (the need for litigation to be conducted efficiently and at proportionate cost and to enforce compliance with rules, practice directions and court orders) “may not be of paramount importance [but] are of particular importance and should be given particular weight” (interestingly, Jackson LJ dissents on this point, saying that those factors have to be considered but not necessarily given greater weight than others). The promptness of the application, and other past or current breaches, will also be relevant at this stage.

The Court should consider whether allowing relief from sanctions allows litigation to be conducted in compliance with rules, practice directions and court orders. This should be considered in relation to all the failures of the Claimant who:

1. Initially submitted defective PoC, over 5 years after the event, which cause the claim to be struck out.
2. Failed to comply with CPR 23.7 when submitting the application for relief (they did not serve a copy to the Defendant, nor did they notify or agree with the Defendant that a hearing was not warranted although they requested that to be the case).
3. Submitted a defective/misleading application which did not adequately explain a good reason for a very late submission (over 3 months after the due date) and did not make it clear to the Court that such relief would allow an otherwise statute barred case from proceeding.
4. Submitted an amended PoC which remains defective, as it still does not demonstrate the full terms and conditions for the car park which were in effect at the time of the event
1. Allowing relief in this case, when the defective application was submitted over 3 months late, presents the Claimant with an extension beyond the statute of limitation.

longtale_Parker

1. Hashtroodi v Hancock

The claimant had issued proceedings in time, but then the limitation period expired before it was served, and in the meantime the limitation period had expired. The defendant appealed against an automatic extension of time for service granted to the claimant.
Held: The Rules should generally be interpreted without reference to case law under the old rules. The court had an unfettered discretion to extend time for service where there was good reason. A more calibrated approach was not necessary. If there was a good reason for the delay, and extension would normally be granted, but the court might well refuse one where the reason was weaker.

This was a matter of principle, and the court declined further to expand upon it. In this case the reason was not good, and the extension should not have been granted.
Dyson LJ said: ‘It has often been said that a solicitor who leaves the issue of a claim form almost until the expiry of the limitation period, and then leaves service of the claim form until the expiry of the period of service is imminent courts disaster.’ and ‘It follows that this is a case where there is no reason for the failure to serve other than the incompetence of the claimant’s legal representatives. Although this is not an absolute bar, it is a powerful reason for refusing to grant an extension of time.’

The Claimant’s representative chose to schedule a task, to be started less than a week before due date, rather than dealing with the Order upon receipt. Their failure to be prompted to complete the task, due to defective technology, does not constitute a Good Reason for the breach, but is a result of their own incompetence. The fact that they also left the original service of the claim form, the subsequent correction to their defective PoC until the expiry of the period of service was imminent, and then submitted a misleading and non-compliant Application further demonstrates their incompetence and poor procedural compliance.

longtale_Parker

AEI v Alstom

I'm reading this as a possible allowance to issue fresh proceedings instead of an application? Not sure if this would be relevant because the event/ window for a claim had expired by the time C recognised their failure.

Is that correct? 

I can't find any case law on Croke Vs Natwest though

Coupon-mad

Yes you can. It's been used loads of time here. Search the forum for the ONE obvious keyword and change results to newest.

Johnersh

You don't need to tell the judge what the cases say, mentioning that C fails to meet the Denton criteria is probably enough (and briefly why) but you do need to be able to expand upon those points at the hearing. 

Don't make it so long that good points are lost in a sea of quotations. It's an art, not a science... There's no right/wrong approach generally, but a busy judge will want to get the point in less than 10 mins if reading it. 

https://www.civillitigationbrief.com/2022/06/09/court-refuses-relief-from-sanctions-when-particulars-of-claim-are-served-out-of-time-the-dangers-of-living-in-the-twilight-zone-and-of-leaving-service-until-the-last-minute/ 

longtale_Parker

Apologies - I was looking on Google, for Croke v Natwest and have now found it as National Westminster...

Am I reading this correctly too? Is it a variation on the arguments in Denton v White? Or is it more relevant to my case?

Johnersh

The particular relevance of croke is that the claim form was served in time, but not particulars. Familiar?

In the o/p's case there is delay, breach of court order, a peremptory order, no good reason and limitation. I could go on. Look at para 65, 69iii and 71.

PS that you hadn't appreciated NatWest = National Westminster Bank is just because I'm clearly older than you.. 

longtale_Parker

Johnersh said:

The particular relevance of croke is that the claim form was served in time, but not particulars. Familiar?

In the o/p's case there is delay, breach of court order, a peremptory order, no good reason and limitation. I could go on. Look at para 65, 69iii and 71.

PS that you hadn't appreciated NatWest = National Westminster Bank is just because I'm clearly older than you.. 

I'll raise you your National Westminster, with Williams and Glynn and the Trustee Savings Bank! I just missed it because I was being literal, and a bit lazy...

Just read those paras too - fantastic! 

I need to get the response back today, so will redraft and focus on your points

Thank you.