Help QDR solicitor claim on behalf of euro car parks limited

Le_Kirk

Neverafine said:

Sure, how do I upload it without having to take multiple photographs? 

Do you have  a scanner?  Maybe the local library has one you could use?

Harbmeister

If you can't get to a scanner just photograph all relevant pages - I did.
Then email/load from your phone to a laptop. If it has Windows 10/11 you can easily edit each image and use the 'erase' facility to anonymise them.

Neverafine

So an update on this, I now have a new hearing date. 23rd May upon consideration of the claimants application. It is set as only a 30 minute hearing where the last was set for 2 hours. I'm not really sure what this means but I plan to attend this one and take the response provided by coupon-mad with me. 

Any tips for attending court would be appreciated. 

Umkomaas

Neverafine said:

So an update on this, I now have a new hearing date. 23rd May upon consideration of the claimants application. It is set as only a 30 minute hearing where the last was set for 2 hours. I'm not really sure what this means but I plan to attend this one and take the response provided by coupon-mad with me. 

Any tips for attending court would be appreciated. 

Get there at least half an hour before the hearing, book in with the court clerk. You may be approached by a rep for the claimant, who may ask you to consider a pre-hearing settlement figure. Be polite, but say (if this is what you wish to happen) that you would prefer the judge to make any decision. Go smartly dressed, not necessarily suit and tie, but definitely not in a Rab C Nesbit string vest, joggers and unmatched shoes!

In terms of the actual hearing itself ... have a look at this if you've not previously seen it - originally posted by forum regular @KeithP.

https://www.youtube.com/watch?v=n93eoaxhzpU

Neverafine

A further update. Yesterday afternoon I received a N279- notice of discontinuation. Which was also emailed to the court. It also asked the court to vacate both hearing dates. 

Is there anything more I am now expected to do? This very much looks like a victory. Thank you all for your advice and guidance very much appreciated. 

Coupon-mad

Neverafine said:

A further update. Yesterday afternoon I received a N279- notice of discontinuation. Which was also emailed to the court. It also asked the court to vacate both hearing dates. 

Is there anything more I am now expected to do? This very much looks like a victory. Thank you all for your advice and guidance very much appreciated. 

Hahahahahahahahaha!!!!  Knew they would.

ANOTHER ONE BITES THE DUST!

QDR missed hearing deadlines, paid £119 for an application to try get away with it and poor POC, then when you fired back, they gave up!

The only disappointment in this victory is that you didn't get to see them shouted at by a Manchester Judge.

  

Neverafine

I was really set on the hearing. It is a shame. That said what a win! Do I need to receive confirmation from the court or attend anything at this stage?

Coupon-mad

No.  You won!  It is over.

For others, here's what was emailed to the court and QDR to oppose their last-minute application that begged to delay the hearing and let them re-write their POC:

Email header was:

URGENT - Defendant's response to N244 - Claim number xxxxxxxx

In the body of the email, the OP briefly stated that the Claimant's N244 is extremely late and there is no good reason reason to disrupt the conclusion of the case.  Skeleton argument from the Defendant is attached to assist the court.

IN THE COUNTY COURT AT xxxxxx

Claim No.: xxxxxxx

Between

EURO CAR PARKS LIMITED 

(Claimant)

-and-

 Xxxxxxxx Xxxxxxxxx

(Defendant)

 ________________________________

SKELETON ARGUMENT FROM THE DEFENDANT:

CONTESTING THE EXTREME LATENESS OF THE CLAIMANT'S APPLICATION AND PROVIDING AUTHORITIES FOR THE CLAIM TO INSTEAD BE STRUCK OUT

________________________________

Introduction

1. At the eleventh hour, the Claimants' N244 (served late, arriving after the 9th May date/time deadline for witness statements for the hearing set for this month) asks the court - out of the blue - for permission to fundamentally amend the 2023 Particulars. The Defendant has not consented to that.
2. The court has had no explanation for the seven month period of delay. No credible reason to suddenly halt the natural process towards deciding the case this month is given, merely that the Claimants - well over half a year later - want to amend the pleaded case "to comply with CPR 16"
3. The N244, draft consent order and wholesale attempt to amend the pleaded case was signed/dated by the Claimant's legal team on the very date that Witness Statements were due to be exchanged.  It was sent to the Defendant only by post so it cannot have been served before the expiry of the date when the Defendant was entitled to expect a Witness Statement and evidence. 
4. It was always in the Claimant's solicitor's gift to plead the case properly at the outset.  They also had a further 4 months to file and serve more detailed POC and did not do so.
5. The Claimant's failure to comply with CPR16 was known by them and QDR some seven months ago. The Defendant raised the significant issues regarding understanding the nature of the allegation (and that the Defendant was not the driver) which was all central to the 2023 defence: see paragraphs 3-8 inclusive.
6. The Claimants have asked if the Defendant will consent. Due to the extreme delay in making this application and the detriment that would inevitably be caused by delaying the hearing and expecting the Defendant to have to re-work and repeat submissions they had already completed, the Defendant cannot agree.
7. So, the matter of this contested application and whether it is right to now strike out the claim, rather than permit the application, is for the court to decide.
8. This skeleton argument is provided to assist the court to understand why the Defendant believes the claim should be struck out.

9. Matters and authorities that the Defendant asks the court to consider:

   Defective Particulars of Claim ('POC')

   
   
10. It is submitted that the claim should be struck out because the 2023 POC fail to comply with CPR 16.4(1)(e) and 16PD3 and 16PD7.
11. This will be common ground, otherwise the Claimant's Solicitors would not be begging for an extension and permission to effectively start again.  By applying to amend the POC to comply, they are admitting that the first POC did not comply with the CPRs.
12. The Claim form failed to "state all facts necessary for the purpose of formulating a complete cause of action".  So inadequate were the 2023 POC that the Defendant was unable to understand the allegations, heads of cost or basis of claim, as stated in paras 3-8 of the defence.
13. In Civil Enforcement Limited v Chan (Ref. E7GM9W44) heard on 15th August 2023, HHJ Murch, sitting at Luton County Court, held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'.
14. Courts up and down the country agree.  As it seems, does Her Honour Judge Evans in a persuasive (unreported but very recent) Appeal decision in Car Park Management Services Ltd v Mr A, which mirrors CEL v Chan.  It is understood by the Defendant that HHJ Evans was sitting at the Manchester County Court (summary of the case by the barrister involved)  https://www.contestorlegal.co.uk/blog-3/parking-company-loses-8668-over-100-ticket-after-bw-legal-services-poor-pleading
15. The Defendant does not have the benefit of a transcript for that case but Manchester Court circuit will.  This is link: Judgments collates several written parking claim judgments including 'CEL v Chan'. These were referred to by the Defendant at the start, in the 2023 defence and 'Chan' is well known to the parking industry, so the Claimant was on early notice of its failure.
16. The Claimant was on notice when reading the defence paragraphs 3 - 8 inclusive, that the Defendant would rely on the recent appeal judgment in Civil Enforcement v Chan. No steps were taken to address or acknowledge these failures within the 4 months deadline.
17. The 'amended POC' also fail to narrow the issues raised in defence.
18. Even after reading the amended POC, the Defendant (and indeed the Court) still does not know:
19. (i) what the sign and/or terms & conditions (the 'consumer notice' relied upon as the contract) looked like on the material date 4 years ago, or 
20. (ii) whether any pay & display machine was prominent and sufficiently visible to persons parking in any/all areas of the car park (a requirement of the BPA Code, and subject to scrutiny under the 'test of prominence' and 'fairness of consumer notices' requirements in the Consumer Rights Act 2015); or 
21. (iii) where the vehicle was parked in relation to a sign and a payment machine, if any, given that the Defendant has no knowledge or evidence of that, as they have pleaded that they were not driving and the Claimant has no evidence as they presumably only relied upon ANPR cameras at the far entry/exit, or
22. (iv) given this was July 2020, during the peak time of the COVID pandemic and the effects of lockdown, whether any pay & display machine was in fact working and whether 'pay & display' was even required on that date, given the fact most car parks suspended the need for the public and their own staff to use/touch machines that required coins, pressing keys and handling printed tickets etc. in 2020; or - as raised nine months ago in the defence:
23. (v) whether the allegation is about a 'keying error' (a mere typo in the numberplate when paying and pressing keys) or not paying at all, or not displaying what the woeful POC call a 'permit', or
24. (vi) whether the Claimant has indeed paid out or otherwise (genuinely?) incurred any damages or fees - newly described for the first time in the new POC as 'administrative costs' - of £70, which was denied (and clearly argued as disproportionate and 'extorting money from motorists' by DLUHC Ministers) as set out in the Defendant's statements of case; or 
25. (vii) whether or not the Claimant's Notice to Keeper was worded to comply with Schedule 4 of the Protection of Freedoms Act 2012, given that not all parking operators use that legislation properly (or at all) and Euro Car Parks has two versions. The Defendant having attested to having no knowledge of the incident and was at work, as a matter of fact and law they cannot be held liable outwith that Act.

Coupon-mad

26 onwards (the forum won't let me adjust the numbering properly):

1. To allow this late application now would seriously prejudice the Defendant, who should not be expected to have to rewind back to defending a newly-pleaded claim all over again and prepare for another hearing later this year, four years after the alleged charge date.
2. In considering an application in which the N244 is effectively seeking relief for failure to comply with the CPRs, as well as an extension of time and permission to file the significantly amended POC, the court should expect, as a minimum, that:
3. (i) it was incumbent upon the Claimant to take all reasonable steps to comply with the rules for statements of case in the first place; and
4. (ii) even if the Court is minded to think that the 2023 POC that the Claimant's now wish to consign to history were adequate, the Claimant had a duty to  act 'promptly' in making an application.  In fact, they took some 7 months from the point of receiving the defence to review the case with any diligence and finally file an application. This exposes the shortcomings of boilerplate parking case models and comes far too late in the day to address the failure of inadequate POC. There is no good reason to permit this application.
5. An application must have a CPR based 'good reason' as well as fulfil the reasonable requirement for promptness. There appears to be no evidence, excuse nor good reason to permit the Claimant's application at the eleventh hour.  No reason at all has been offered for failing to comply with CPR16 or why the Claimants should now get a last minute chance to comply, having sat on their hands and wasted the Defendant's and court's time in the interim.
6. There is case law to support the view that a court's case management powers do not exist as a carte blanche opportunity to re-plead a non-compliant statement of case that is in imminent danger of being dismissed at the hearing this month. This must meet the Dammerman v Lanyon Bowdler bar for unreasonable conduct because the N244's lateness permits of no reasonable explanation.
7. It cannot be 'acting promptly' to have rushed and signed an application on the very day when Witness Statement bundles were due.
8. Even if it was emailed to the court before 4pm on the deadline day that the allocating Judge had ordered Witness Statements and evidence to be exchanged, it was served late to the Defendant, because it was only served by Royal Mail, in an envelope dated 9th May (1sr class post).
9. No witness statement and evidence has been filed / served in time or at all, thus the court is invited to take note that the Claimants have breached the Hearing Order.
10. The Claimant certainly did not file their application with any speed.
11. The duty to make applications “promptly”, within the context of the CPRs means with alacrity, or “with all reasonable celerity in the circumstances” (Khan v Edgbaston Holdings [2007] EWHC 2444).  Click here to read the full judgment  That case held that the defendant did not act promptly in making their application. There was no credible explanation for why it was not made immediately.
12. A hurried 'last minute panic' application like this one, with insufficient evidence and a lack of promptness risks being dismissed on the papers. Too much delay in making an application will often see it fail, "irrespective of its substantive merit" (Standard Bank Plc v Agrinvest International Inc. [2010] EWCA Civ 1400, obiter at [20] to [22]).  Click here to read the full judgment 
13. Courts' limited jurisdiction should not include giving parties extra opportunities to waste the Court’s time after failing to follow pre-action protocols for debt claims and breaching the CPRs. This Claimant has acted as though the CPRs and hearing deadlines do not apply to them.
14. Applying the Denton principles, a court might decide to that a short delay (of perhaps days) in serving CPR-compliant particulars of claim by the 4 month expiry long-stop is of little consequence in isolation, but when viewed cumulatively with other breaches of rules - breaching the Hearing Order and a failure to make their application promptly - the Claimant's overall course of conduct should be viewed as more serious.
15. The judgment of HHJ Simon Barker QC in Heathfield International LLC v Axiom Stone (London) Ltd [2020] EWHC 1075 (Ch) is an example of a failure to file a document timeously.  The erring party was refused relief from sanctions, with the Judge pointing to a number of other procedural failures which had had a cumulative effect.
16. The High Court decision in Boxwood Leisure Ltd v Gleeson Construction Services Ltd & Anor [2021] EWHC 947 (TCC) serves as a reminder that parties are not entitled to rely on the wide, general powers under CPR 3.10 or CPR 3.9 to circumvent specific conditions under other CPRs. This demonstrated the Court’s finite leniency and the fact that the Court’s case management powers are not an invariable cure-all for errors.
17. The decision of Deputy Master Marsh in Croke & Anor v National Westminster Bank Plc & Ors [2022] EWHC 1367 (Ch) was to refuse the Claimant's application for relief from sanctions. The claimant was one day late in serving Particulars of Claim to the Defendant.
18. In Lakhani and another v Mahmud  [2017] EWHC 1713 (Ch), Daniel Alexander QC upheld on appeal a refusal to grant relief where the budget was filed 1 day late. In that case the defendant only started preparing a budget following receipt of the claimant’s budget and the case was dominated by a last minute N244. The other party was effectively precluded from making a considered response and the late service had the potential to disrupt the orderly progress of the case.  Instead of acknowledging the failure and applying immediately for relief from sanctions, the defendant’s solicitor argued the point all the way to the CCMC, only making an application at the eleventh hour and turning a 45 minute hearing into a half day. The Judge refused to give relief; a decision that was upheld on appeal
19. In Shill Properties Ltd v Bunch [2023] EWHC 478 (Ch) Master Clark refused the claimant’s application. As in the extant case, the claimant had failed to meet earlier procedural deadlines and the claimant’s solicitors issued an application which, among other things, sought relief from sanctions in relation to witness statements. The claimant had not filed sufficient evidence in support of the application and the court had no explanation for the 4 month period of delay.
20. Order Sought by the Defendant
21. In all the premises, the Claimant's conduct and repeated lateness should be fatal to the application and the case as earlier pleaded. It is submitted that, for the reasons stated above, the Court should strike out the claim and find in favour of the Defendant in this matter. The Court is invited to make an order in the terms set out below:

UPON reading the Claimant's application, the Defendant's skeleton argument and both parties' earlier submissions and pleadings;

AND UPON the Claimant's 9 May 2024 application seeking to address the same CPR 16 failures which had been raised immediately by the Defendant in 2023, but the N244 form not having been filed sufficiently promptly;

AND UPON it being noted that the September 2023 Particulars do not comply with CPR 16.4(1)(e) and 16PD3 and 16PD7, because the POC fail to "state all facts necessary for the purpose of formulating a complete cause of action", demonstrated by the Defendant's responses and by the fact that the Claimant wished to amend it;

AND UPON it being noted that the new proposed Particulars still fail to provide sufficient information and evidence to narrow the issues raised in the defence, merely referring to unspecified 'terms and conditions' and 'various signs' and failing at attach a copy of the purported contractual terms or the Notice to Keeper;

AND UPON it being noted that the 4 month period to serve CPR-compliant Particulars of Claim has expired;

AND UPON it having been entirely within the Claimant's Solicitors' gift to properly plead the claim at the outset and it being the opinion of the Court that it ought to have been entirely possible to properly and fully present a registered keeper Defendant with the facts relating to such a commonly pleaded matter as a single parking charge, but for the fact that generic wording appears to have been applied on the Claim Form;

AND UPON the claim being for a very modest sum, well within the small claims limit, such that the Court considers it disproportionate, and contrary to the overriding objective (in the context of a failure by the Claimant to properly comply with rules and practice directions and trying to delay the conclusion of the case with an unreasonably last minute N244), to permit such an application and order that a further defence be filed, followed by further referral to a Judge for more directions and another hearing date;

AND UPON considering the Denton principles but being persuaded by the recent Appeal judgment by Her Honour Judge Evans in Car Park Management Services Ltd v Mr A (Manchester County Court, May 2024) the full transcript and judgment for which which is hereby attached to this Order, to assist both parties to understand the rationale now relied upon:

IT IS ORDERED that:-

(i) The Claimant's application is refused;

(ii) The Claim is struck out;

(iii) The hearing set for 28 May 2024 be vacated;

(iv) No order as to costs.

Dated by Defendant: 13 May 2024

Harbmeister

Excellent news @Neverafine.