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

longtale_Parker

Thank you all (again and again) for your fantastic support and advice.

I have genuinely tried to absorb and include all of your valued comments, but feel I'm going around un circles a bit now. The fact I need to submit this by 4pm today does help my focus, a little, but also concerns me that I may not have reflected all of your great points. Here is what I am thinking of submitting...

We are also really concerned about attending court for this application to be heard - aside from anything else, we have 2 school aged children who cannot easily get home, from different schools, without a lift, and the allotted time would make this very difficult. As I read, and re-read the Order - the hearing is for the strike out to be overturned and I hoped it meant that only the claimant must attend (and it is optional for the D)?

In response to the N244 application to allow relief from sanctions, I submit to the Court the following objections

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 amended particulars by 9 February 2022.

17 January 2022 DCB received the Order to strike out and diarised a task to draft a response

03 February 2022 DCB failed to draft and submit an amended PoC

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

27 May 2022 DCB, acting for the Claimant, waited unnecessarily before submitting a defective N244 Application notice, requesting relief from sanctions owing to a reported system error (more than 4 months after the Order was given and received).

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 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 submit a compliant PoC to the court (Croke v Natwest) and failure 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. The pack contained instructions that a hearing date was set for the application of 25 January 2023.

(1)   Having set out the facts above, my objection to the Application to reinstate is based upon the following failures to meet the Denton criteria:

a.     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 as it relates to an event on 05/02/2016 in an application dated 27/05/2022.

b.     The case was originally struck out due to being submitted with defective PoC. Arguably the late application itself is 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.

c.      The Claimant did not adequately explain the precise nature of their failure, except to note that incorrect processes were followed. There is no first-hand statement from the person who entered the task into the claims management system (CMS) and no audit record has been provided to show that the case was indeed entered and subsequently deleted. If such evidence exists, it should be made available to the Court and the Defendant in support the application. If such evidence does not exist, how can such a claim be made that the scheduling actually was not overlooked?

d.     The witness statement describes the CMS as being used as a simple diary; a user inputs the case details, scheduling a subsequent manual activity 14 days later, and within 1 week of the due date, instead of dealing with the Order promptly. The technical nature of the “diary” does not excuse the failure to comply and the plan to serve so close to the due date is a reason for the failure.

e.     The Claimant did not adequately explain when a team member entered the file and recognised the failure, and there is no first-hand account from that team member regarding when and why they randomly accessed this case in their CMS. It is important to know when the failure was recognised in order to determine whether an Amended PoC submission on the 27/05/2022 reflects prompt action being taken.

f.       There is no evidence, nor first-hand account to explain the nature and effect of the IT malfunction on other scheduled tasks or cases, nor to explain precisely when this malfunction occurred. If it had resulted from a previous system change, the malfunction further demonstrates a degree of incompetence and poor procedural compliance and strengthens the argument that the application should be denied. There is no evidence nor first-hand account to support the claim that an external developer was instructed to find resolve the issue and no details of what changes resulted.

(2)   In addition to the above failings of the Denton criteria, the N244 application itself is also defective, in that it:

a.      asks 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.

b.     was not served on the Defendant (at any time by the Claimant) in breach of CPR 23.7

c.      was submitted after the expiry of the limitation period to reinstate the claim, which is obviously prejudicial given that primary limitation had passed.

(3)   References to the witness statement, which support the above procedural failings

a.     The witness statement claims the Order dated 10/01/2022 was received by DCB on the 17/01/2022, yet they claim to have scheduled a 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, the statement suggests a manual task would be triggered on 03/02/2022, 14 days after receipt and less than a week before due date.

b.     The reality therefore is that this manual task may have taken more than one day to research the case, draft, approve, file and serve a compliant PoC. It is disingenuous for DCB to suggest, in their witness statement, that the amended PoC would have been filed “6 days ahead of the due date” and it would be a number of days later when it would be considered served on the Defendant. They intentionally scheduled the action to take place when the limitation period was imminent and, consequently failed to comply (Hashtroodi v Hancock).

c.      The amended Particulars of Claim were not dealt with promptly. Upon discovering the previous failure to comply, the witness statement refers to realising, investigating and fixing the IT system malfunction which is claimed to have been the source of the delay. The statement is dated the same day as the amended Particulars of Claim and the N244 which suggests DCB did not resolve the non-compliance and submit the application and amended PoC 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. Fixing the IT malfunction would not involve the caseworker so the corrections could, and should, have been submitted promptly, independently of, and before the IT system was fixed.

d.     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

(4)   In summary:

a.     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.

b.     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.

c.      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.

d.     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 the Defendant understands, 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. 

Coupon-mad

Technically optional but expect to be walked all over if you don't attend.

In my experience most Judges have NOT read the paperwork before a hearing and sit there waiting to be persuaded verbally by either side drawing his/her attention to a point or evidence in the papers he/she hasn't read.

Imagine that playing out without you.  With a legal rep or even a barrister appearing for them.

longtale_Parker

Coupon-mad said:

Technically optional but expect to be walked all over if you don't attend.

In my experience most Judges have NOT read the paperwork before a hearing and sit there waiting to be persuaded verbally by either side drawing his/her attention to a point or evidence in the papers he/she hasn't read.

Imagine that playing out without you.  With a legal rep or even a barrister appearing for them.

Thank you CM (and others, especially Johnersh) I take your point and will attend.

I will attend and shall simply refer to the indisputable facts i.e. the timeline, and shall be keen to hear the Claimant's legal rep counter their own argument that there is never a good excuse to fail to comply...

I'll keep you all posted.

Season's greetings to all and wishing you a happy and healthy new year!

longtale_Parker

One liner order from the court arrived this morning... with a lead in obvs:

Upon hearing from the CLaimant's legal agent

The application is dismissed.

I'm sure you're all bored with hearing this by now - but I'll never get bored saying it - Thank you so much for your support, help and guidance in dealing with these bandits and their bullying and sneaky tactics. CM, Johnersh and all who've helped me in particular, big thanks... until next time

Snakes_Belly

longtale_Parker said:

One liner order from the court arrived this morning... with a lead in obvs:

Upon hearing from the CLaimant's legal agent

The application is dismissed.

I'm sure you're all bored with hearing this by now - but I'll never get bored saying it - Thank you so much for your support, help and guidance in dealing with these bandits and their bullying and sneaky tactics. CM, Johnersh and all who've helped me in particular, big thanks... until next time

I'm glad that this is now over for you. Well done for sticking with it and not giving in to bullies

Coupon-mad

longtale_Parker said:

One liner order from the court arrived this morning... with a lead in obvs:

Upon hearing from the CLaimant's legal agent

The application is dismissed.

I'm sure you're all bored with hearing this by now - but I'll never get bored saying it - Thank you so much for your support, help and guidance in dealing with these bandits and their bullying and sneaky tactics. CM, Johnersh and all who've helped me in particular, big thanks... until next time

We are not bored, this case was unusual due to that application.  It was a clear abuse!

@Johnersh really helped with wording and will be pleased to see justice done here.

I really liked your response.  Did you rely on that and not attend?  It was a very good submission but I was so worried for you, had you not attended this hearing, just in case they walked all over your points and the Judge failed to read them.

In fact, being a fly on the wall as the Judge demolished their application would have been well worth going along for.  If you did go, what happened?

Was the Judge possibly DJ Iyer (I see it was Manchester).  Good Judges there!  

You didn't end up out of pocket by costs for an application made in September to set aside the Order, did you?

longtale_Parker

Hi CM,
Unfortunately I missed the hearing - I had to go away with work, but it had slipped my mind too, to be honest.

I do wish I'd been there though. The Judge was DJ Baker and, in answer to your last question, I didn't end up out of pocket as they acted upon an emailed request/ objection.
Thanks again

Johnersh

Nice result. Well done. 

Coupon-mad

longtale_Parker said:

Hi CM,
Unfortunately I missed the hearing - I had to go away with work, but it had slipped my mind too, to be honest.

I do wish I'd been there though. The Judge was DJ Baker and, in answer to your last question, I didn't end up out of pocket as they acted upon an emailed request/ objection.
Thanks again

Great result!  Good for DJ Baker.

ANOTHER EXCEL ONE BITES THE DUST!

And we sincerely hope that you are au fait with the need to respond to the final Government Public Consultation?

We all need to ram the nail in the coffin of the false £70 'DRA fee' add-on, that actually funds the court claim and toxic CCJ culture, as well as the DRA and roboclaim 'legals' gaslighting of people.

Please come back here when it opens, and you can make sure you don't miss the Public Consultation:

If you are not a regular reader, to be alerted you'll need to bookmark the thread by MSE_JC at the top of the forum and enable (on your profile) email alerts for bookmarked threads.

Then join us when the Consultation opens in a few weeks.