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Gladstones: Letter before Claim
crox
post Thu, 17 May 2018 - 11:36
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So the letter below came across my desk. The original charge notice was ignored by the driver at the time (company car, leased), as were the original letters.

Given I have plenty of other things to do, entering a defence on court action doesn't particularly thrill me. I understand that the contract is with the driver, but clearly have no wish for the company to be involved, but neither do I want to involve the driver.

Any valued advice greatly appreciated!
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post Thu, 17 May 2018 - 11:36
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ostell
post Mon, 10 Dec 2018 - 15:52
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You can always ask for it to be at your local court. Just don't put in the Practise Directions bit.
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crox
post Tue, 11 Dec 2018 - 18:12
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Is there value in writing to the other side and advising that we are confident in defending this claim and that we are noting the costs as they are incurred. As it is solely a director working on this, the costs are already quite high, etc etc

Is there specific wording that can strongly encourage them to reconsider going through to a court appearance given the weakness of their case?
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cabbyman
post Tue, 11 Dec 2018 - 19:21
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Small Claims are severely limited in the costs that can be awarded unless the court can be convinced that the claim is unreasonable.

However, one wonders about the possibility of counter claiming in some way. Others may be able to suggest some imaginative grounds.


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nosferatu1001
post Wed, 12 Dec 2018 - 08:51
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If they have failed to meet POFA, and the driver was on their own PRIVATE not company business, then the Company cannot have any liability on this, and they would have no chance of success.
You can point out that, being completely aware of this, anyt threatened legal action cannot be anything other than vexatious, and unreasonable ab initio. You warn them you are keeping note of your costs, at well above the Litigant in Person rate, and you will lAPply to the court for any claim to be struck out before allocation and before cost protection is in place.
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crox
post Thu, 7 Mar 2019 - 11:53
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so ... we have eventually received Notice of Allocation to the Small Claims Track (Hearing), at a local Country Court, as both parties are relatively local.

It states that we will get a further notification as to the date of the hearing - I am assuming that it won't be within the next month?

Directions are that we must deliver to the other party and court office, copies of all docs on which we intend to rely on.

It has been a long time since I did a Witness Statement, is there a good resource to read as a start?

The defence is POFA, in that the driver was not on company business (is there a best way to proof that?) and that the NTH did not include all the required paperwork. Anything else to add in?
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nosferatu1001
post Thu, 7 Mar 2019 - 12:00
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No, it will be months away
Newbies thread, post 2, should have examples. Its just setting out facts, not arguments, and linking to exhibits that support the facfts you present.

WHat deadline does it give you for this delivery?

The witness statement is proof. If the location is clearly NOT a company location, ie a retail park, out of business horus etc then that obviously adds to the weight of evidence.

Yes you could also atack signageand standing to sue, and make them prove they have permission to issue contracts and pursue to court in their own name.
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crox
post Fri, 28 Jun 2019 - 14:47
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I'm prepping the witness statement for this, with a couple of weeks to spare.

I will put it up when done, but one clarifying question. I have yet to see the NTK (only received a Notice to Hirer) as Gladstones have failed/declined/forgotten to include that. Should I mention this in the WS when referring to POFA, or leave that for a skeleton argument?

In the defense, we also covered that the Claimant is merely acting as an agent - again, is it worth commenting in the WS or wait for the skeleton argument?
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crox
post Mon, 15 Jul 2019 - 09:00
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This is the proposed Witness Statement. Any comments (Skelton Argument will cover POFA etc)

I, XX, a Company Director of XX, XX, WILL STATE AS FOLLOWS:-
1. I am a Director of the Defendant company. This statement is made from my own knowledge except where otherwise indicated, in which case I have explained the source of my information or belief.
2. I am confirm that the Defendant is the hirer/keeper of the vehicle, registration XX.
3. The Defendant received a letter from Gladstones Solicitors, on behalf of the Claimant, purporting to be a Letter of Claim, dated XX.
5. On behalf of the Defendant, I replied to this letter advising that the Letter Before Claim failed to comply with numerous requirements of the Pre-action Protocol for Debt Claims. This despite the letter referring us to the (since replaced by above Protocol) Practice Direction for Pre-Action Conduct. We gave Gladstones Solicitors an opportunity to write again with a Letter Before Claim which complied with those requirements. Gladstones were further advised that failure to do so, would not take this matter any further forward. This letter is attached as Exhibit XX1.
6. We received a letter from Gladstones dated XX, acknowledging our correspondence, but not addressing any part of our correspondence. They since elected to pursue this matter via litigation.
7. As a limited company, it is not feasible for the Defendant to physically drive a vehicle. The Defendant has no customers, suppliers, or contacts within reasonable walking distance of the location of the alleged offence and no such work instruction or request for any employee or agent exists to visit the location or any nearby.
8. Exhibit XX2 attached shows two screen shots from Google Maps which the Defendant uses to display customers, suppliers and contacts. The Green Drop is the location of the alleged offence, and the nearest contact (Blue Drop) is in fact the offices of the Defendant. The second screen shot shows Google Maps distance calculations of 2.5 miles. These clearly show that it is not feasible to park at the location of the alleged offence and travel to an interested location of the Defendant.
9. Attached as Exhibit XX3, is a copy of the Charge Notice as supplied by the Claimant. This shows the time of Issue as XX. The Defendant only sells to businesses and therefore operates within reasonable office working hours. It is our position that given the location and time of the alleged offence, that the unnamed driver could not be acting under the authority of the Defendant.
10. It is the position of the Defendant that the Claimant is only acting on behalf of the landowner. The landowner would be the only proper claimant. The Claimant must be able to provide proof of a chain of contracts in existence providing them the right to form contracts and sue in their name.
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nosferatu1001
post Mon, 15 Jul 2019 - 10:36
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If you are relying on lack of keeper liabiltiy in this matter, then of course you have to state no Ntk was received!

It is not POSSIBLE for a company to drive!

Not an offence. NEVER use that word. Alleged breadch of contract, at most.
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crox
post Tue, 16 Jul 2019 - 14:04
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QUOTE (nosferatu1001 @ Mon, 15 Jul 2019 - 11:36) *
If you are relying on lack of keeper liabiltiy in this matter, then of course you have to state no Ntk was received!

It is not POSSIBLE for a company to drive!

Not an offence. NEVER use that word. Alleged breadch of contract, at most.


Yes, all good.

They are claiming that a Notice to Hirer was sent of course, and included that in the original document pack, but will be disputing the contents of it (they helpfully do mention POFA)
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crox
post Tue, 16 Jul 2019 - 15:02
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I've added this sentence:

At no point has the Defendant received a Notice to Keeper from the Claimant, or anyone purporting to act on their behalf. The Defendant did receive a Notice to Hirer, dated XX, but the Notice to Hirer lacked any supporting documents as prescribed in Para 13 (2) of schedule 4, Protection of Freedom Acts 2012 (c.9), attached Exhibit XX1. Para 14 (2) of the same schedule is very clear on the conditions that the creditor can recover charges from a hirer of a vehicle and the Claimant has failed to meet these conditions.
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