WS Stage - Quick question

D_P_Dance

They have wasted your time. now consider wasting theirs, read this

https://www.citizensadvice.org.uk/law-and-courts/legal-system/small-claims/making-a-small-claim/

Coupon-mad

thewait said:

Hi all, just wanted to update you and thank you all for your support on this (especially Coupon-mad and Fruitcake). 

I attended the session yesterday and won! PCM didn't attend in person so couldn't refute any of my claims. The main points the judge ruled on was the fact that I was not provided enough time to unload my vehicle (pictures taken of my car only spanned a period of 3 mins) and as per my tenancy agreement, I was not blocking the road and I had an implicit right to be able to load/unload my vehicle. Jopson case reference was useful here.

Asked whether any of my other points were valid, he said he only needed to rule on those two points as they were sufficient for him to dismiss the claim against me. He also agreed for me to recover the maximum cost of £95 once I told him my monthly salary and the fact I had to use leave to attend in person. I got the sense billing for a few hours of prep work would have also been fine but I was fine with recovering the £95.

Thank you all again for your help, you guys provide an amazing service here so appreciate you taking the time to guide us!

Yay, congrats!

ANOTHER PCM ONE BITES THE DUST!

thewait

Hi all, thanks again for all your support. I wasn’t expecting to be back fighting another claim so soon but here we are. 

It’s the exact same scenario as what I previously just won which is why I thought PCM would have just dropped the second one when they lost the first one.

2 things though, First, and this maybe a big problem but am hoping not, I received the claim when I left the country. My letters were only forwarded to me now and it’s now been 21~ days since the claim was made which means I’ve missed the AOS deadline and the defence deadline of 14 days (which I understand becomes 28 days had I filed an AOS). Can I still try to submit the AOS and send my defence to the CCBCQA email?

Does anyone know what the process is here? 

Thank you all again for the support.

Coupon-mad

No AOS is worthwhile now.

Go straight for a defence but nothing can change over this weekend so you can work on it and email it first thing Tuesday, and hopefully win the race you are now in to beat them.

A prior defence trumps an attempt at default judgment next week.

Tuesday 9am emailed defence is needed, not an AOS now.  As I say, you have the whole weekend as they can't get default CCJs on a non-working day.

Add in the usual words from 'two claims' cases, about Henderson estoppel.  Those are your search keywords.

Use the new March 2022 defence template.

thewait

Thanks as ever for the quick response Coupon! I have prepared my first stab at this and wanted your thoughts. I have only copied the parts I have ammended, the rest of the Defence will be as per the Defence template. 

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that any conduct by the driver gave rise to a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or to form contracts in their own name at the location.

The facts as known to the Defendant:

2. It is admitted that the Defendant was the driver of the vehicle in question, but liability is denied. 

3. It is denied that the Defendant was in breach of any parking conditions as the defendant was a resident of where the alleged offence occurred and was unloading at the time meaning no parking has taken place. The tenancy agreement has absolutely no requirement for any permits or restrictions of use in relation to the parking areas nor does it impose any Loading /unloading conditions. The Tenancy agreement makes no assertion that a car must be parked in a marked bay, nor that a penalty of £100 must be paid in the event of a failure to do so. Loading or unloading with the permission of the landholder is not 'parking' and signs cannot override existing rights enjoyed by landowners and their visitors, as was found in the Appeal case decided by His Honour Judge Harris QC at Oxford County Court, in a similar case number B9GF0A9E: 'JOPSON V HOME GUARD SERVICES’.

If it can be proven that "parking" has occurred, it is denied that the Defendant was in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant as a resident, for which the tenancy agreement permits the parking of vehicle(s) on land (Section 3.41 of Tenancy Agreement). The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.

4. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

5. The Defendant would also like to bring to the Courts attention that the Claimant raised an identical claim against the Defendant which the judge ruled against the Claimant on XX XXX 2022. In Arnold v National Westminster Bank plc [1991] 3 All ER 41 the court noted that cause of action estoppel “…applies where a cause of action in a second action is identical to a cause of action in the first, the latter having been between the same parties or their privies and having involved the same subject matter.” This must surely apply here also as this alleged offence occurred ahead of the initial claim court date and the Claimant should have brought all claims simultaneously rather than by piecemeal. In Henderson -v- Henderson [1843] 67 ER 313 the court noted the following:

      I.         when a matter becomes subject to litigation, the parties are required to advance their whole case;

     II.         the Court will not permit the same parties to re-open the same subject of litigation regarding matters which should have been advanced in the earlier litigation, but were not owing to negligence, inadvertence, or error;

    III.         this bar applies to all matters, both those on which the Court determined in the original litigation and those which would have been advanced if the party in question had exercised ''reasonable diligence''.

By the Claimant's negligence or by intent, filing two claims, allowing them to continue to two separate hearings and choosing not to bring both into one claim, permits of no reasonable explanation.  The Court and myself have had to make preparations for two separate court hearings, causing unnecessary cost in time and money, and specifically in terms of duplicating the paperwork, intimidation and distress for me as a Litigant in Person.

By filing the first claim and failing to advance their whole case, any cause of action was immediately extinguished for any other similar fact parking charges against myself as Defendant.   The courts may estop a second claim where the cause of action is substantially the same.  I invite the court to vacate the second hearing and summarily dismiss those claims under the grounds of cause of action estoppel.  In the alternative, the Court is invited to consolidate the claims to be determined together, and to apply appropriate sanctions against the Claimant.

Ignorance of the existence of cause of action estoppel is no excuse.  My research discovered the above authorities and I am just a LiP forced to spend hours trying to get up to speed with a process I have never experienced before.  But this is a Claimant well used to the court process, able to rely upon advice from DCB Legal.  The conduct of this Claimant and their legal representatives has been vexatious and when their course of conduct is taken as a whole, it certainly meets the bar set in Dammermann v Lanyon Bowdler LLP [2017] EWCA Civ 269 for the court to order the Claimant to pay my full costs.

6. The facts in this defence come from the Defendant's own knowledge and honest belief.  The Defendant should not be criticised for using some pre-written wording from a reliable source.  The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence. This Defendant signed it after full research and having read this defence several times, because the court process is outside of their life experience.  The claim was an unexpected shock.

Johnersh

Doesn't have to be pretty. Provided a defence is in before the court grant a default judgment you're in business.

Put away the violin and revisit the last two paras. You are well familiar with the court process now, so don't say you aren't. 

thewait

Thanks, will make those changes now.

Do I explain either in my defence or the email to CCBCQA I was not in the country hence missed the 14 day deadline? Or just submit my defence as it’s still less than 28 days and chances are no default judgement has been applied? If there has then explain then?

KeithP

I wouldn't normally mention it, but that's now twice you have misspelt CCBCAQ.

Don't get it wrong when you try to file your Defence, will you?

Umkomaas

Just send it in first thing on Tuesday. I wouldn't draw any attention to missing a deadline. 

Coupon-mad

Yep, all good.  DO NOT mention it being late.  Obviously ring the CCBC once you've emailed it - maybe half an hour later (check you get an auto-response) and stay on the phone until they confirm they've added the defence to the MCOL record so you can avoid any attempt at default judgments.