VCS - Southend Airport No Stopping - RK - Not Driver - Costs Awarded - Another One Bites the Dust

Coupon-mad

Yes. We'll help.

stop_this_nonsense

Great! Have started. I have drafted some notes on the following points:

• Preliminary Matter: The Application Should be Struck Out - there is a good reason here.

• Failure to Serve Notice of Discontinuance - putting the claimant to strict proof 

• Breach of Procedure CPR 39.8(1) - refuted, with evidence that WS and letter were properly served by me.

• Costs: Explanation for my time spent on this - refuted that I just downloaded and signed a template.

• Breakdown of Costs - evidence that this was provided in the WS and letter

• Unnecessary Preparation of Evidence - failure to serve notice forced me to prepare a WS unnecessarily.

Where I am a bit stuck is on the relevance of Dammerman v Lanyon which has been cited as the threshold for unreasonabless. As far as I can tell, Dammerman only deals explictly with the question whether refusal of an offer of settlement is unreasonable. I think that the judgement only provides the following as to a general test of reasonableness - "The acid test is whether the conduct permits of a reasonable explanation."

Coupon-mad

I think that the judgement only provides the following as to a general test of reasonableness - "The acid test is whether the conduct permits of a reasonable explanation."

Correct. That's the test.

You must convince the second Judge that the Claimant's conduct in not bothering to serve a NoD does not permit of a reasonable explanation (because they filed a copy to the court and had the Defendant's email). Thus, the first Judge did not err in law .

ALSO go and copy the paragraph about the annotation in the White Book about costs applying for late discontinuances... it was in your defence all along if you used our template defence!  Therefore the C was on notice from your defence that you would claim costs and that the White Book supports this approach.

You will need to show a course of conduct of unreasonableness in litigation. Have a heading saying that phrase.

So you could add that the Elms Legal Claim particulars were very poorly pleaded as a boilerplate template, then they (Elms) dropped out after failing to secure the early default CCJ that this 'roboclaim' model seeks to harvest in the thousands. The Claimant could have discontinued then, when they lost their legal representation, but they did not.

The Elms Legal POC were inadequate, failing to specify essential details such as the contractual terms, specifics of the alleged breach, and the heads of cost and interest allegedly incurred.  The POC failed to adequately set out the specific contractual terms that VCS was relying upon, how long the vehicle stopped for and how this was a breach of the overarching Airport byelaws that apply on some roadways, and whether the area was even within the enforced zone, or where that (assumed?) roadway was, within the sprawling site; or was it within one of the multiple car parks and drop off zones.  The POC were so vague that the car could have been anywhere and VCS does not cover the whole Airport location.

Failure to Properly Plead Loss and Damage

The claimant also failed to properly plead how the alleged breaches caused them loss or damage, and did not provide a coherent breakdown of the quantification of the losses claimed. VCS also failed to comply with CPR 16.4(2)(ii) and (iii), which mandates that the Claimant specify if seeking interest, the date to which it is calculated, and the total amount of interest claimed to the date of calculation. The Claimant's omission of these crucial details is a glaring breach of the Civil Procedure Rules and the entire model appears to be based on aggressive intimidation then 'throw in the towel' when the odd robust Defendant sees it through.

To then not even bother to tell the Defendant that they had discontinued the Claim compounds the unreasonableness and brings the costs and the White Book annotation about discontinuations (which was specifically pleaded in the defence and not a surprise to VCS) into play.

The Judge was right to determine that unreasonable conduct had occurred. There are no grounds of appeal that can succeed.

stop_this_nonsense

Thanks @Coupon-mad

Am all over this!

stop_this_nonsense

Hi @Coupon-mad

I've PM'd you the WS.

Thanks in advance :-)
S-T-N

Coupon-mad

We can look at this later.

The Application won't be 'struck out' because there is a hearing for it. Leave to appeal might be refused. That's what you want.

Is the Judge that ordered this application hearing a senior circuit Judge (HHJ)?  Or the same DJ who heard the case? Who?

stop_this_nonsense

Different Judge; a Deputy District Judge for the hearing - a District Judge made the original Order for costs.

stop_this_nonsense

Hi all. What would be the Court's view if the Claimant's agent sent a cheque to the Defendant for the costs awarded ... but cancelled the cheque?! How would this affect the N24 Application, if at all?

Umkomaas

stop_this_nonsense said:

Hi all. What would be the Court's view if the Claimant's agent sent a cheque to the Defendant for the costs awarded ... but cancelled the cheque?! How would this affect the N24 Application, if at all?

Is this what has happened?

stop_this_nonsense

Yes. As surprised as you probably are! ELMS Legal (who stepped away after defence submission) sent a cheque to the value of the costs awarded by the court. But my bank bounced it. This was post the date of the set aside application but before the hearing (which is this Friday, 31 Jan).