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Excel/VCS/bwlegal - PCN from March 2012, Threads merged
Persephone
post Tue, 30 Aug 2016 - 14:10
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I collected information from this forum after the receipt of a “Notice to Owner” dated 16/4/2012 until the threatening letters from Whites stopped arriving later in 2012. I did not respond to any of those.
On 27th July 2016 I received the letter from VCS passing my “account” to bwLegal and, in the same post, another letter from bwLegal claiming a “balance due” of £174.00, comprising a PCN charge of £120.00 plus £54.00 “initial legal costs”. Once again I researched this forum and came up with this response:

1 August 2016
Dear Sir/Madam,

In response to your letter of 25 July 2016, a copy of which I enclose, I deny any debt to Vehicle Control Services Parking Limited. As I’m sure you are aware, the alleged event took place before the enactment of The Protection of Freedoms Act 2012, and I was not the driver. Thus, your client has no right to pursue me as the registered keeper.

You have no reasonable cause to continue to process my personal information, including Vehicle Registration Mark. As such you must confirm within 21 days that you and all your agents have ceased processing my data, to prevent further distress and harassment being caused. You must treat this as a Section 10 notice under the Data Protection Act.

No consent has been given, or will be given, for you to process my data. Should you contend consent was given, which is denied, it is revoked.

Do not reference Elliot Vs Loake. You are fully aware this does not apply in this case. Similarly, I should not have to remind you that your £54 "legal" charges cannot possibly be recovered at small claims, as per CPR27.14.

In summary:
1 I was not the driver of the vehicle on 16 March 2012.
2 BW Legal has attempted to mislead me by demanding £54 legal costs, which cannot be recovered in the Small Claims Court.
3 BW Legal has also misrepresented the consequences of a judgement - a CCJ “may have a detrimental effect on my future creditworthiness and employability”.
4 Vehicle Control Services Parking Limited’s delay of over four years to begin legal action is unreasonable behaviour.

Yours faithfully,



bwLegal’s response to that arrived on 25/8/2016 (dated 23 Aug).


I’ll try to post an image.


What is the best way forward? Do I use Gan’s concise response:

Dear Sir/Madam,
Ref: *****
I acknowledge receipt of your letter dated 23 August 2016.

I refer you to my previously reply, a copy of which is enclosed

My position is unchanged

Yours Faithfully

OR can I rant a bit?

Dear Sir/Madam,
Ref: *****
I acknowledge receipt of your letter dated 23 August 2016 and would like to draw your attention to the following:
1. I deny any debt to your client. The £174.00 is the sum of £120.00 PCN Charge plus £54.00 your legal fees.
2. I did not “suggest” I was not the driver of the car. I clearly stated I was not the driver.
3. I do not know who the driver was on 16 March 2012. Even if I did it would be impossible to provide you with that information “within 7 days” as you letter arrived on Thursday 25th August - just before a Bank Holiday weekend.
4. You referenced the case Elliot Vs Loake despite my pointing out to you that it does not apply in this case.
5. Your extract From the DVLA Release of Information document does not address my request that you cease processing my data.
6. your reference to the £100.00 PCN charge does not match with point 1, where the PCN charge is clearly £120.00 (£174.00 minus £54.00 legal fees).
7. Your reference to ParkingEye v Beavis (2015) is not relevant in this case.
8. Your statement that “the relevant car parking Codes of Practice also gives guidance that £100.00 is a reasonable sum to charge” seems to be an error as you are asking me to pay a charge of £120.00. See also points 1 and 6.
9. Referencing the “detailed terms and conditions located within the Car Park” is not very helpful as I have already stated that I was not in that car park.
Finally, I was staying in a hotel in Basingstoke at a family event over the weekend 16 - 18 March 2012. I was not the driver of the vehicle on 16th March 2012. I do not know who was driving the vehicle on that date.

Yours Faithfully
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post Tue, 30 Aug 2016 - 14:10
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nosferatu1001
post Tue, 30 Aug 2016 - 15:39
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You need to include Gans response that talks about the fact they dont deny the £54 cannot be recovered

Complain to SRA, CSA as well. Plenty on here.

From another thread:


Dear Sirs

I write with regard to your letter dated 23rd August 2016
Please ensure that any further correspondence is sent to my correct address as set out in my letter to you dated 22nd August and noted above.

I continue to deny any debt to Excel Parking Services and/or yourselves (B W Legal).

I note your misleading description of Elliott v Loake [1982].
The court decided that there was evidence of the driver's identity and made no such presumption

It is for the claimant has to prove their case, not the defendant.

I note your justification for the £54 that you claim to have charged your client.
I note that you have not disputed my position that it cannot be recovered in the Small Claims court

I will not make any payment in the absence of a court judgement and any legal proceedings will be strongly defended

My position is therefore unchanged and final.

Yours Faithfully


This post has been edited by nosferatu1001: Tue, 30 Aug 2016 - 15:44
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Persephone
post Tue, 30 Aug 2016 - 20:57
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Many thanks, nosferatu.

The wealth of knowledge on this forum is amazing. Earlier this year I won a POPLA appeal over ParkingEye by following advice to others on here.

I will use all of those comments - with the exception of the correct address - threaded into my points above. And I think I'll leave out that I was hundreds of miles away.

And I will complain to SRA, CSA as well.
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SchoolRunMum
post Tue, 30 Aug 2016 - 21:11
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You will find example CSA and SRA complaints in one place on this MSE thread:

http://forums.moneysavingexpert.com/showthread.php?t=5490266

But also, do read lots of other BW Legal threads on both forums, we are drowning in them but it does suggest many will be able to be fought off as the claims are generic and defendable.
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Persephone
post Tue, 30 Aug 2016 - 21:59
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Thank you SchoolRunMum,

I've just found one you posted earlier this month: SRA complaint: http://forums.pepipoo.com/index.php?showtopic=107836

Once I've sent off my adapted response, I'll get to work on the complaints.

Any and all advice is very much appreciated.
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Persephone
post Thu, 1 Sep 2016 - 11:27
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At last I've included everything I wanted to say in my rant to BWLegal. It's ready to send and if nobody spots any glaring error, it will be on its way tomorrow morning.

Many, many thanks to all members who keep us from panicking and sending money when we really do not have to.

Dear Sir/Madam,
Ref: *****
I acknowledge receipt of your letter dated 23 August 2016 and I continue to deny any debt to Excel Parking Services and/or yourselves (B W Legal).
In response to your letter would like to draw your attention to the following:

1. The £174.00 is the sum of £120.00 PCN Charge plus £54.00 your legal fees.
2. I did not “suggest” I was not the driver of the car. I clearly stated I was not the driver. It is for the claimant to prove their case, not the defendant.
3. I do not know who the driver was on 16 March 2012. Even if I did it would be impossible to provide you with that information “within 7 days” as you letter arrived on Thursday 25th August - just before a Bank Holiday weekend.
4. I note your misleading description of Elliott v Loake [1982]. The court decided that there was evidence of the driver's identity in that case. You made reference again despite my pointing out to you that it does not apply in this case.
5. Your extract From the DVLA Release of Information document does not address my request that you cease processing my data.
6. your reference to the £100.00 PCN charge does not match with point 1, where the PCN charge is clearly £120.00 (£174.00 minus £54.00 legal fees).
7. Your reference to ParkingEye v Beavis (2015) is not relevant in this case.
8. Your statement that “the relevant car parking Codes of Practice also gives guidance that £100.00 is a reasonable sum to charge” seems to be an error as you are asking me to pay a charge of £120.00. See also points 1 and 6.
9. I note your justification for the £54 that you claim to have charged your client and that you have not disputed my position that it cannot be recovered in the Small Claims court.
10. Referencing the “detailed terms and conditions located within the Car Park” is not very helpful as I have already stated that I was not in that car park.

Finally, I was staying in a hotel in Basingstoke at a family event over the weekend 16 - 18 March 2012. I was not the driver of the vehicle on 16th March 2012. I do not know who was driving the vehicle on that date. I will not make any payment in the absence of a court judgement and any legal proceedings will be strongly defended.

My position is therefore unchanged and final.


Yours Faithfully,


Now to start work on the complaints to the CSA & SRA.

This post has been edited by Persephone: Thu, 1 Sep 2016 - 14:55
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Persephone
post Sat, 3 Feb 2018 - 21:19
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I've spent much of this week looking at posts and advice across this forum and MSE. And now I feel thoroughly overwhelmed! With some guidance, though, I think I can see this through to the County Court if necessary.

I posted on this forum in August 2016 and after receiving advice, posted a letter to BW Legal on September 2nd 2016 and hadn't heard from them again until this week. (http://forums.pepipoo.com/index.php?showtopic=108160&hl=

On 29th January a County Court Claim (dated 26/1/2018) arrived followed on 1st February by a Notice of County Court Claim Issued from BW Legal (dated 29/1/18). This is the first correspondence I have received from them since August 2016. I have responded to the County Court by completing the AOS online and by checking “Defend all of this claim” box (30/1/2018).

I now need to prepare my defence. Do I first email DWlegal requesting copies of the "photographic evidence & data held on file" that is referred to on the original PCN? Do I mention the lack of a Letter Before Action at this point?

Background
19/4/2012 I received a Notice to Owner with a contravention date of 16/3/2012. On 5/5/12 a Final Demand Prior to Court Action arrived dated 2/5/12. I ignored both of these.
Attached Image


Almost 4 years later on 28/7/2016 two letters arrived in the same envelope, one from VCS stating that "your account has now been passed to our legal team" and the other from BWlegal asking me resolve the account or "we will seek Our Client's instructions to commence legal proceedings against you". I replied on 1st August 2016 stating that I was not the driver and, as the contravention pre-dated POFA, their client had no right to pursue me as the registered owner. On 23/8/16 they wrote that "our client does not rely on POFA" and referred to Elliot v Loake. It was at his point that I requested advice from this forum. and sent them a detailed reply on 2/9/16.

Attached Image

Attached Image


County Court Claim Form

Attached Image


BWlegal Notice of Claim Issued
Attached Image
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cabbyman
post Sat, 3 Feb 2018 - 21:27
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I have asked to mods to merge this into the thread you quoted above. One case, one thread.

Aside from no keeper liability, it would appear that they have failed to send a valid LBA which won't sit well with the court.

Elliott v Loake was a criminal case where there was irrefutable forensic evidence that the RK was the driver. There is no such evidence in this case.


--------------------
Cabbyman 8 PPCs 0
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Persephone
post Sat, 3 Feb 2018 - 22:11
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Thank you, cabbyman. One thread makes sense.

I forgot to add that I have proof that we were staying in a hotel that weekend: an email confirming the booking in September 2011 and a credit card statement showing payment by card on 18th March 2012.
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Persephone
post Sun, 4 Feb 2018 - 16:53
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I now realise that I have very little time to prepare a defence - deadline 28th February. BWlegal have not sent me a Letter Before Action so I have no details of the claim.
My next course of action is to email them to get these details. I wonder if someone would give me advice on this draft email.

I acknowledge receipt of your Notice of County Court Claim Issued, dated 29 January 2018 and received on 1st February 2018. Your Notice arrived three days after the County Court Claim Form arrived on 29 Jan 2018 (issue date 26 Jan 2018).

I have not yet received a Letter Before Claim which, in order to comply with the Pre-Action Protocol, would include:
a summary of the facts;
what you want from the party you're claiming from;
how you've calculated the sum you want to claim;
copies of the key documents that you'll use to support your case;
a list of any documents you want from the other party; 
a reasonable deadline for a response (usually 28 days).

I now request full and concise details of this claim and all photographic evidence and data held on file be provided to me by post within 14 days - on or before 19th February 2018.


Or I could use much of the request for information example posted by Nosferatu 1001 in another thread (http://forums.pepipoo.com/index.php?showtopic=107768&st=120&start=120).

This post has been edited by Persephone: Sun, 4 Feb 2018 - 17:54
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peterguk
post Sun, 4 Feb 2018 - 17:15
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QUOTE (Persephone @ Sat, 3 Feb 2018 - 21:19) *
I posted on this forum in August 2016 (http://forums.pepipoo.com/index.php?showtopic=108160&hl=


A mod will merge with your original thread. One case - one thread.


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Persephone
post Sun, 4 Feb 2018 - 17:57
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Thank you for merging the two threads and my apologies for making it necessary. It makes the sequence of events easier to follow.
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Persephone
post Mon, 5 Feb 2018 - 20:19
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I sent this by email and post today (with proof of posting).
Is my request for all details within 14 days reasonable, especially as they have not sent me a Letter Before Action and I'm not sure exactly what I'm defending.

[i]"Dear Sir/Madam,

I acknowledge receipt of your Notice of County Court Claim Issued, dated 29 January 2018 and received on 1st February 2018. Your Notice arrived three days after the County Court Claim Form arrived on 29 Jan 2018 (issue date 26 Jan 2018).

I have not yet received a Letter Before Claim which, in order to comply with the Pre-Action Protocol, would include:
• a summary of the facts;
• what you want from the party you're claiming from;
• how you've calculated the sum you want to claim;
• copies of the key documents that you'll use to support your case;
• a list of any documents you want from the other party;
• a reasonable deadline for a response (usually 28 days).



I now request that full and concise details of this claim and all photographic evidence and data held on file be provided to me by post within 14 days - on or before 19th February 2018.

This letter is a hard copy of the email sent to your email address, VCS@bwlegal.co.uk, on 5th February 2018."


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nosferatu1001
post Tue, 6 Feb 2018 - 12:23
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No, request it withiN SEVEN days, as this is informtion they MUST already have, before they could commence a claim

State you will raise any refusal to comply with their obligations with the court, and request an immediate stay of proceedings.
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Redivi
post Tue, 6 Feb 2018 - 12:34
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QUOTE (nosferatu1001 @ Tue, 6 Feb 2018 - 12:23) *
No, request it within SEVEN days, as this is information they MUST already have, before they could commence a claim

That's the theory

In practice BWL boasts that its roboclaims system regularly issues 8000 claims/month and can handle up to 20000
That's only possible if it doesn't deal with this information first
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ManxRed
post Tue, 6 Feb 2018 - 13:52
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Don't forget to challenge the interest payment wheeze. They're the ones that have waited many years before bringing a claim, they could have issued a claim at the time if they were concerned about losing out on the accrued interest.


--------------------
Sometimes I use big words I don't understand in an effort to make myself sound more photosynthesis.
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Persephone
post Tue, 6 Feb 2018 - 13:59
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Thank you for the advice nosferatu and Redivi. Unfortunately, I sent the "within 14 days" email and posted the letter yesterday - before your comments were posted.

I can't realistically begin a defence until I have the information that I requested. However, I can start to reorganise the arguments I used in my last letter to them 2/9/16 and which they never responded to. I don't want to get in a panic if they don't respond and the court doesn't grant a stay of proceedings. I'll sift through these 10 points to find the relevant ones and use the third person.

I wasn't the driver; this predated POFA (which their client doesn't rely on anyway); I can prove I was elsewhere with a hotel confirmation email and credit card statement.
One piece of information I would really like is the length of time that "the vehicle . . . continued to remain parked after the expiry of the time in a Pay & Display Car Park".

"I acknowledge receipt of your letter dated 23 August 2016 and I continue to deny any debt to VCS and/or yourselves (B W Legal).
In response to your letter would like to draw your attention to the following:
1. The £174.00 is the sum of £120.00 PCN Charge plus £54.00 your legal fees.
2. I did not “suggest” I was not the driver of the car. I clearly stated I was not the driver. It is for the claimant to prove their case, not the defendant.
3. I do not know who the driver was on 16 March 2012. Even if I did it would be impossible to provide you with that information “within 7 days” as you letter arrived on Thursday 25th August - just before a Bank Holiday weekend.
4. I note your misleading description of Elliott v Loake [1982]. The court decided that there was evidence of the driver's identity in that case. You made reference again despite my pointing out to you that it does not apply in this case.
5. Your extract From the DVLA Release of Information document does not address my request that you cease processing my data.
6. Your reference to the £100.00 PCN charge does not match with point 1, where the PCN charge is clearly £120.00 (£174.00 minus £54.00 legal fees).
7. Your reference to ParkingEye v Beavis (2015) is not relevant in this case.
8. Your statement that “the relevant car parking Codes of Practice also gives guidance that £100.00 is a reasonable sum to charge” seems to be an error as you are asking me to pay a charge of £120.00. See also points 1 and 6.
9. I note your justification for the £54 that you claim to have charged your client and that you have not disputed my position that it cannot be recovered in the Small Claims court.
10. Referencing the “detailed terms and conditions located within the Car Park” is not very helpful as I have already stated that I was not in that car park.
Finally, I was staying in a hotel in Basingstoke at a family event over the weekend 16th – 18th March 2012. I was not the driver of the vehicle on 16th March 2012. I do not know who was driving the vehicle on that date.
I will not make any payment in the absence of a court judgement and any legal proceedings will be strongly defended.
My position is therefore unchanged and final."


And I'll add a challenge the interest payment wheeze. Thanks ManxRed

This post has been edited by Persephone: Tue, 6 Feb 2018 - 14:04
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nosferatu1001
post Tue, 6 Feb 2018 - 18:30
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Of course you can start the defence.

Keeper liability
Standing
Signage
Amount is. Apenalty and not saved by BEAVIS

That’s four already.
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Redivi
post Tue, 6 Feb 2018 - 21:34
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Claim fails to disclose a cause of action
Reasonable belief that the additional charges have been plucked out of thin air to inflate the claim

Not to forget the killer point :

Not the driver and the Claimant has never had any right to recover payment from the registered keeper
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Persephone
post Mon, 12 Feb 2018 - 11:45
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Here's my draft of my defence. Will this do?

Is paragraph 3 too repetitive?
Do I need to add more to paragraph 5?
Is there too much detail in paragraph 10?

When should I submit the defence to the County Court Business Centre?
The form is dated 26th January which would make the "date of service" the 29th January. For it to arrive no later than 28 days, I think the latest I can send it would be Thurs/Fri 22/23 January.


DEFENCE

1. The Defendant denies that the Claimant is entitled to relief claimed in the sum of £XXX, or at all, for the reasons stated in the following paragraphs.

2. It is admitted that the Defendant was the Registered Keeper of the vehicle in question on the material date.

3. On the material date, the Defendant was not the driver of the vehicle in question. The Claimant's Legal Representative, BW Legal Services Limited, were informed of this by letters in August 2016 and September 2016. The alleged contravention took place before the enactment of The Protection of Freedoms Act 2012. The registered keeper has not been proven as the driver. There is no keeper liability. The claimant has no right to pursue the Defendant as the registered keeper.

4. The Claimant's increasingly demanding letters failed to evidence any contravention or clear/prominent signage.

a) The Notice to Owner (16/04/2012) gives the "Reason" for the contravention as "Parked after the expiry of time in a Pay & display car park" and refers to photographic evidence and data held to support the claim.
No details of the period of overstay or copies of the photos and data has been provided.
b) As the car park in question no longer exists, it is impossible for the Defendant to determine if the signage was compliant with all regulation. It should be the Claimant's responsibility to prove compliance.

5. The Claimant is put to strict proof that they have standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management.

6. The Claimant has previously sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed by passing the debt to a recovery agent (which suggested to the Defendant they would be calling round like bailiffs).

7. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it, how the amount has changed from £120 to £100 and later reduced to £126 in a discount offer or why the £54 "contractual costs" were initially described as "Client's Initial Legal Costs". This appears to be an attempt at adding costs with no legal basis, and an attempt at double recovery, in order to circumvent the Civil Procedure Rules.

8. The provision is a penalty and not a genuine pre-estimate of loss for the following reasons:
a) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
b) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.

9. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes and Vehicle Control Services have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.

10. The Claimant's unreasonable delay in bringing this claim has resulted in interest charges of £64.26.
A "Final Demand Prior to Court Action" was issued by the Claimant on 2nd May 2012. More than two years later, on 25th July 2016, a letter was sent passing the Defendant's account to BW Legal. A Discount Offer was sent to the Defendant 23rd August 2016. In a letter dated 29th January 2018 the Claimant informed the Defendant that a County Court Claim had been issued (this letter was received three days after the Claim Form).

11. The Claimant did not serve a Letter Before County Court Claim on the Defendant, as mandated by the Practice Direction on Pre-Action Conduct. Further to this, the Particulars of Claim as pleaded in the N1 Claim Form are extremely sparse, and do not disclose a proper Cause of Action, but instead offer a menu of choices. As such, the Particulars do not comply with CPR 16.4, and the Court is invited to strike out the claim of its own initiative, using its case management powers.

12. If the Court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this Defence.

I believe that the facts stated in this Defence are true.

This post has been edited by Persephone: Mon, 12 Feb 2018 - 11:45
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