Received claim form from Civil Enforcement Ltd -defence and counterclaim.. Options

[supermancss]

In brief, a free car park is provided to visitors and patients at a Doctor surgery.

A PCN was issued via ANPR for failing to register the number plate on their system using a Ipad or similar device inside the surgery.

Appeals followed through, threats from ZZPS and QDR solicitors about court action etc. All stages the same was repeated and proof given that we were legitimate users of the surgery.

I went and visited the site in question, took the photos of the signage into the car park and the 'terms and conditions'. The terms and conditions, well.. dont exist! See the photo.

Just submitting in a second the defence and counterclaim on as many grounds as I can think of. Clear vexatious litigation, harassment, data protection breach for passing info to ZZPS and QDR solicitors. Mental pain and suffering through the stress and anxiety caused.

Total for compensation will be £500 (to keep my counter claim and trial fee (LOL! Wont ever get to trial!!) down as low as possible). Then costs on top. Ive written and offered them to withdraw the case with no further action but the offer has been ignored.

I will keep things updated for others to follow and cheer along.

Feel free to share any tips, first time i've had to deal with a parking company at court litigation stage. Confident and in County Court fairly regularly anyway, so not intimidated but quite enjoying the experience from now onwards.




This post has been edited by supermancss: Wed, 5 Dec 2018 - 00:01

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[supermancss]

Yikes, they are doing well!
Defence. Not defence statement No such thing exists.

I also said to file a copy with the court, including the top sheet
Make it utterly clear that they are lying to you and trying to threaten you into cancelling your counterclaim.

Did has refused my default judgement, i suspect due to their DQ inly being 1 day late.

CEL have now filed discontinuance for their claim.

I've confirmed I want to proceed with counterclaim and have requested it is listed for hearing and I will pay the £35 fee.

It seems CEL are going into damage limitation mode and trying to act like the reasonable party now.

I've spoken with Dr Surgery who confirmed they had contact with creative car parks account manager who cancelled PCN on their internal systems. The court filed discontinuance is their damagae limitation i expect, to try seem like they've not acted unreasonably.

[Jlc]

Still after £500 counterclaim?

[nosferatu1001]

The DQ being late shoudl not have been anything to do with your default judgement application; it should have been that the DEFENCE TO COUNTERCLAIM was not recieved by the court ordered deadline. Did you not do so?

[supermancss]

The DQ being late shoudl not have been anything to do with your default judgement application; it should have been that the DEFENCE TO COUNTERCLAIM was not recieved by the court ordered deadline. Did you not do so?

[supermancss]

Still after £500 counterclaim?

Thats the one

[nosferatu1001]

That was not a great application
The DQ notbeing served had nothing to do with the counterclaims strike out
Its why we went on about defence to counterclaim so much
It failed to refer to the judges order of X date that set the deadline
It failed to outline the failures in the CPR which mandates a defence to be filed.

[supermancss]

In hindsight, i see where you make comments for it to have been improved.

However, I called the court, they just said to fill out the form and put a letter with it. I hadnt anticipated it to need anything other than the form filled out and the judge would look at the evidence themselves.

Do you think its been refused because i didnt include everything in black and white, or because the judge doesnt agree with with counterclaim?

Bit confused at either prospect. CPR wording means it should have been given default judgement. In terms of timing, i think they have received the kther party defence statement at the same day the Judge refused the default judgement.

Bit frustrating if thats the case as it was 8 days late..

Other than writing back to CEL and copy to the courts as ypu suggested.. anything else worth doing to support the case? Im awaiting courts to aet hearing and request a fee.

[nosferatu1001]

You assumed.
A foolish thing to do in a legal process. Yes, there is a form, but you still cant just write anything you like. You need to point them a tthe reasons why they should grant you default judgement. Pointing out that the claimant failed to serve on you a copy of their defence.. by the deadline f x given in the court order dating Y, would have been a lot better.

I have no idea, ask the judge
Seriously, if you had laid it all out clearly then theres a chance it would still have been rejected, and you still would not know why.
Youre in a FORMAL LEGAL PROCESS. You need to treat it FORMALLY. Same as in he defence, where you reference CPRs and processes, you do the same in the application. Youve just learnt an expensive (£100) lesson.

Well, you cant exactly write to CEL stating you are looking for default judgement, as it has been refused.

[supermancss]

You assumed.
A foolish thing to do in a legal process. Yes, there is a form, but you still cant just write anything you like. You need to point them a tthe reasons why they should grant you default judgement. Pointing out that the claimant failed to serve on you a copy of their defence.. by the deadline f x given in the court order dating Y, would have been a lot better.

I have no idea, ask the judge
Seriously, if you had laid it all out clearly then theres a chance it would still have been rejected, and you still would not know why.
Youre in a FORMAL LEGAL PROCESS. You need to treat it FORMALLY. Same as in he defence, where you reference CPRs and processes, you do the same in the application. Youve just learnt an expensive (£100) lesson.

Well, you cant exactly write to CEL stating you are looking for default judgement, as it has been refused.

Not sure what the £100 lesson refers to?

My cost to counterclaim is £35, hearing fee £35. A provisional date is set for 26.3.19. It is being sent back to the Judge for directions.

Im wanting to write again to the court, with it very precise and exact and copies of each order i refer to.

Do i need to do this on specific form? Or should i wait untol judge has given directions?

I feel the judge has refused due to having defence before reviewing my default judgement , although it was late.

I submitted default judgement 29th dec. They filed by email to court theirbdefence 4th jan.
Judge looked at request and refused on 9th jan.

Whilst i dont want to piss the judge off, the wordig is pretty clear from my understanding in CPR.



Thanks again for your responses along the way too.

[nosferatu1001]

Ah thought that it was an application, which usually costs £100
At least you didnt have to pay that.

So you want to fill out yet another form, asking the same judge for the same thing but a bit betetr worded this time? Youc an try, but I wouldnt hold out much hope.
You must give the references as to why the default shoudl be orderd by the court, and focus on the defence to counterclaim
Its why i said you had different reasons. Making an application for one thing and mudddying it with aout 5 others wasnt great as a concept.

Look
If you want a DEFAULT JUDGEMENT follow the process for such. I dont know what directions you think a judge will give, that could help you.
Lay out your draft here, today, as the longer you leave it the worse
It must include the original fialure to serve on time, ref to CPR AND to the judges order, and that the olate service was accompanied by no application for relief of sanction, as you would have expected given their breach of the order. There was not even an explanation for the breach included.

Youc an then still truthfully state you are formally applying for default judgement to CEL

[supermancss]

Ah thought that it was an application, which usually costs £100
At least you didnt have to pay that.

So you want to fill out yet another form, asking the same judge for the same thing but a bit betetr worded this time? Youc an try, but I wouldnt hold out much hope.
You must give the references as to why the default shoudl be orderd by the court, and focus on the defence to counterclaim
Its why i said you had different reasons. Making an application for one thing and mudddying it with aout 5 others wasnt great as a concept.

Look
If you want a DEFAULT JUDGEMENT follow the process for such. I dont know what directions you think a judge will give, that could help you.
Lay out your draft here, today, as the longer you leave it the worse
It must include the original fialure to serve on time, ref to CPR AND to the judges order, and that the olate service was accompanied by no application for relief of sanction, as you would have expected given their breach of the order. There was not even an explanation for the breach included.

Youc an then still truthfully state you are formally applying for default judgement to CEL

Just about to send back draft now, but noticed their defence is signed off at the end calling it a "witness statement" in the statement of truth.. is this not a defence.. does this mean anything to cancel out the relevancy of everything they even wrote in the document itself, as its using legal arguments and quoting other cases etc.



IN THE COUNTY COURT OF CLAIM NUMBER:

Between

Civil Enforcement Ltd
Claimant
And

Defendant

10th January 2019

Dear Sir/Madam,

I previously requested a Default Judgement in my counterclaim against Civil Enforcement Ltd. This was refused on or around 9th January 2019. I ask that following further advice, I believe that I did not include enough information to clearly set out the breaches in CPR by Civil Enforcement Ltd in my accompanying letter. My reasons requesting its reconsideration are as follows;
1) On transfer to the County Court at xxxx, both parties were served with Form N271 Notice of transfer of proceedings [Exhibit xxx]. It states to the original Claimant (Civil Enforcement Ltd) that as the defendant has filed a counterclaim against, they are required to complete their defence submission. It warns that failure to do so may result a Judgement being made.

2) CPR 15.4 (1) (a) gives 14 days to respond to a claim after its service date. My Counterclaim was issued to Civil Enforcement Ltd on 7th December 2018 as per Form N271, shown Exhibit xxxx. This gave further additional days for service and bank holidays over Christmas Day, Boxing Day. The 14 day deadline was calculated by the courts as 27th December 2018.

3) Civil Enforcement Ltd defence is dated 4th January 2019 and has been sent electronically by email to xxxx County Court on the same day. This is a total of 8 days after the deadline set, further evidence of this deadline date is on Form N149a Notice of proposed allocation to small claims track, which was sent to both sides at the same time.

4) Civil Enforcement Ltd have made no request under CPR 15.5 (1) to request an extension by mutual agreement to 28 days, in any event, such a request would have been refused by myself.

5) No application has been made by Civil Enforcement Ltd for relief from sanctions as per CPR 3.9. Even if they had, I would argue that applying the three-stage test established in Denton Guidance would find that this is
Stage 1) it is serious and significant to file 8 days late for a large company who is represented in their words by a ‘legal team’.
Stage 2) No reason for the breach was given in any form, specifically not in the defence document itself.
Stage 3) requires the court to consider “all the circumstances of the case, so as to enable it to deal justly with the application”. As stage 1 and 2 show clear breach of CPR and failure to provide any reason, I would argue that on balance Civil Enforcement Ltd if in future apply for relief from sanctions, should be refused.

6) I request that the completed N225 application for Default Judgement based on Civil Enforcement’s serious and significant failure to adhere to CPR 15.4 (1) (a) is taken into account when reviewing. I ask that a Default Judgement is awarded as per CPR 12.4 (1) (a) for £500.00 plus £35.00 court costs and to be paid immediately.

Also I kindly remind that no explanation has been provided to the court or in their defence as to why it was filed so late. No relief or request for extensions have been applied for in any case.

Statement of truth

I believe that the facts stated in this document are true

This post has been edited by supermancss: Thu, 10 Jan 2019 - 18:17

[nosferatu1001]

You oculd draw the atention to the fact that it was so hastily cobbled together, after the new year, that they forgot to sign it as a defence. Doubt the judge will care too much.

Paid within 14 days

I would state they havent even apologised for it being late. Instead it came with a demand that the counterclaim would be withdrawn, or they would ask for costs due to unreasonable behaviour. Since the claimant is willing to entertain such costs being awarded, for their own failures to follow the courts order of X date (always put the date of the order in, it helps tie the sequence of events down. Dont just refer to the order) you ask the court to consider this if a hearing should take place.

[supermancss]

You oculd draw the atention to the fact that it was so hastily cobbled together, after the new year, that they forgot to sign it as a defence. Doubt the judge will care too much.

Paid within 14 days

I would state they havent even apologised for it being late. Instead it came with a demand that the counterclaim would be withdrawn, or they would ask for costs due to unreasonable behaviour. Since the claimant is willing to entertain such costs being awarded, for their own failures to follow the courts order of X date (always put the date of the order in, it helps tie the sequence of events down. Dont just refer to the order) you ask the court to consider this if a hearing should take place.

very good point on referring to their wording in the defence.

I'll mention the part they signed it as a Witness statement, but included no details as to who "A Cohen" actually is in relation to the claimant. Also that it is signed as a witness statement but includes defence arguments.

I did think immediate payment was a bit crude, i'll amend to 14 days.


I wont make any reference to the directions questionnaire, I now have the discontinuance notice officially.

I will refer back to the fact that they are commenced a claim, when counterclaimed against, replied 8 days late and instead of apologising for breaching CPR had infact tried to claim that the whole counterclaim itself was unreasonable and they should be paid costs.

Will update how I get on with the re-request!

[supermancss]

You oculd draw the atention to the fact that it was so hastily cobbled together, after the new year, that they forgot to sign it as a defence. Doubt the judge will care too much.

Paid within 14 days

I would state they havent even apologised for it being late. Instead it came with a demand that the counterclaim would be withdrawn, or they would ask for costs due to unreasonable behaviour. Since the claimant is willing to entertain such costs being awarded, for their own failures to follow the courts order of X date (always put the date of the order in, it helps tie the sequence of events down. Dont just refer to the order) you ask the court to consider this if a hearing should take place.

adding more detail and a few arguments to try and point out where things have maybe gone wrong..

Without assuming, it wouldnt suprise me that given the DJ workload, they have been given all of the case materials together including the late filed defence and simply refused the default judgement as they had a copy of the defence.

The letter with the defence submission states they discontinued the claim on 4th December 2018, but the court only got the discontinuance notice 9th January 2019, a day before the Judge refused the default judgement request.

I have a date set for 28th Feb for trial for my counterclaim.

__

Q1) Can a judge, if they had not been aware of the full facts and actually mislead by the submissions of CEL - reverse their decision and cancel the trial?

Either way, im happy to attend but would rather not have the inconvenience!

____________________________________

Fully re-written and ready to submit, prior any further points to raise..

I've covered the original default judgement request in full and have irrefutable evidence it should be agreed.

I've acknowledged errors on their defence document submission and picked out faults and where they're trying to mislead the court

arguing against a DJ decision without coming across as having a tantrum is really difficult, i hope I've worded it OK.

______

Dear Sir/Madam,

I previously requested a Default Judgement in my counterclaim against Civil Enforcement Ltd. This was refused on or around 9th January 2019. I ask that following further advice, I believe that it may have not included enough information to evidence the irrefutable breaches in CPR by Civil Enforcement Ltd in my accompanying letter. My reasons requesting its reconsideration are as follows;
1) On transfer to the County Court at Bath, both parties were served with Form N271 Notice of transfer of proceedings [Exhibit RT/1]. It states to the original Claimant (Civil Enforcement Ltd) that as the defendant has filed a counterclaim against, that they are required to complete their defence submission. It warns that failure to do so may result a Judgement being made against them.

2) CPR 15.4 (1) (a) gives 14 days to respond to a claim after its service date. My Counterclaim was issued to Civil Enforcement Ltd on 7th December 2018 as per Form N271, shown Exhibit RT/1. This gave further additional days for service and bank holidays over Christmas Day, Boxing Day. The 14 day deadline was calculated by the courts as 27th December 2018.

3) Civil Enforcement Ltd submitted defence document is dated 4th January 2019 and has been sent electronically by email to Bath County Court on the same day. This is a total of 8 days after the deadline set, further evidence of this deadline date is on Form N149a Notice of proposed allocation to small claims track, which was sent to both sides at the same time.

4) Civil Enforcement Ltd have made no request under CPR 15.5 (1) to request an extension by mutual agreement to 28 days, in any event, such a request would have been refused by myself.

5) No application has been made by Civil Enforcement Ltd for relief from sanctions as per CPR 3.9. Even if they had, I would argue that applying the three-stage test established in Denton Guidance would find that this is
Stage 1) it is serious and significant to file 8 days late for a large company who is represented in their words by a ‘legal team’.
Stage 2) No reason for the breach was given in any form, specifically not in the defence document itself.
Stage 3) requires the court to consider “all the circumstances of the case, so as to enable it to deal justly with the application”. As stage 1 and 2 show clear breach of CPR and failure to provide any reason, I would argue that on balance Civil Enforcement Ltd if in future apply for relief from sanctions, should be refused.

6) I request that the completed N225 application for Default Judgement based on Civil Enforcement’s serious and significant failure to adhere to CPR 15.4 (1) (a) is taken into account when reviewing. I ask that a Default Judgement is awarded as per CPR 12.4 (1) (a) for £500.00 plus £35.00 court costs and to be paid within a 14 day period.

7) As well as filing their defence significantly late, the defendant has also demanded by letter to the claimant, that I now discontinue my counterclaim. The letter alleges they had discontinued their claim with the court on 4th December 2018, See exhibit [RT/02]. The significance of this letter is that they claim they discontinued, coincidentally prior to my defence and counterclaim submission some 3 days later on 7th December 2018.

This is a blatant attempt to mislead the court. Civil Enforcement Ltd have provided their own evidence to my findings by way of Form N279 – w3 “Notice of discontinuance(6.99)” – See Exhibit [RT/03]

8) I would like to also raise attention to the alleged defence submitted by Civil Enforcement Ltd, if it is accepted even though significantly late. The statement of truth, of which I believe to be invalid. It is signed off as a witness statement, if so, the legal arguments within cannot be made in a witness statement and should be disregarded by the courts. Also that an unknown party by the name of “Ashley Cohen” has been used, clearly with a typed electronic signature.

CPR 32.4(1) states: “(1) A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.”

If Civil Enforcement Ltd claims the statement of truth was worded incorrectly in error, can the court consider the defence inadmissible or to use as a witness statement and summons to the trial on 28th February 2019, Ashley Cohen in order to verify why he signed a defence submission as a witness statement, and if he has any personal knowledge of the case in question when signing.

9) In the document sent to the court by Civil Enforcement Ltd on 4th January 2019 (a hybrid defence/witness statement), it states my counterclaim is unreasonable behaviour, and that I should be liable for their entire costs in relation to the case. If this is their genuine viewpoint, for their own proven failures under CPR (Refer to point (3) of this document) and misleading the court with the letter written by Civil Enforcement Ltd (Exhibit [RT/02]). I ask that the court considers that if a hearing should even take place for the counterclaim at all.

10) I ask the Court kindly considers the findings in this application submission document and does award the default Judgement of £500.00 plus £35.00 court costs and to be paid within 14 days. Also to vacate any further hearings as no longer required.


Statement of truth
I believe that the facts stated in this document are true


This post has been edited by supermancss: Sat, 12 Jan 2019 - 19:46

[supermancss]

Anyone able to review before I submit tomorrow morning?

Not sure how to go about requesting a second default judgement request either. More evidence has come about since its initial application which works in my favour and ive added much more detail and specifics

[Ollyfrog]

A lot of the regulars are busy over the weekends. Don't be in too much of a rush in the morning - see if you get any more feedback before firing it off.

[nosferatu1001]

What evidence do you mean?

Just do the application
As I said, I still dont exepct it to be heard favourably
WIll you be replying to CEL? YOu need to make the same poitns to them - that they filed late, they lied about when they discontinued, etc.

[supermancss]

What evidence do you mean?

Just do the application
As I said, I still dont exepct it to be heard favourably
WIll you be replying to CEL? YOu need to make the same poitns to them - that they filed late, they lied about when they discontinued, etc.

They have mislead the court on 4/1/19 when submitting defence by writing in a letter that they discontinued the claim back on 4th December 2018.

On 9/1/19 they then submitted a discontinuance notice. The whole defence they have submitted works to the point of me being unreasonable in making a counterclaim, attempting to mislead the court. Misleading by making it appear when I submitted my defence and counterclaim on 7th December 2018 it was 3 days after they had discontinued, meaning that it was unreasonable to do so.

The order I received from the courts is worded

"Upon reading directions questionnaires from both parties
and upon reading the defendants request for default judment

IT IS ORDERED THAT
the defendant's request for judgement is refused

dated January 7th



No explanation or information with it. Am i right in assuming that the Judge is wrong in making this decision due to the lack of information I provided, and the misleading info provided by CEL?

[nosferatu1001]

They werent wrong in making the decision. You made a poor application and CEL mislead the court
Give it a try

[supermancss]

They werent wrong in making the decision. You made a poor application and CEL mislead the court
Give it a try

Sadly, the first application wasn't great and the judge did not fill in the blanks and did not take note of the N225 form I sent in as well with the application letter.

Very cloak and dagger and wont give a reason for refusal of judgement and say that they cannot give any advice. I sense I've missed something important.

Either way, trial still listed for 28th Feb.

Will pay the £35 fee, no need for a massive witness statement re my defence as its just for my counterclaim now.

I'll attend court and if we cant persuade a DJ, I will be glad to have fought it anyway.

I suspect that CEL may not even show, given the cost of attendance will be substantial for them, plus any other costs.

I have had sight of their directions questionnaire, asking for a paper only hearing as per CPR 27.10 (from memory) which is obvious, they even opted to use mediation too!



__
In terms of next steps, I will pay trial fee, prepare and submit to court and defendant in time :

1) Witness statement
2) any evidence
3) skeleton arguments showing why they should find in our favour.
4) prepare to possibly take the stand in court and be asked questions there re the claim for harassment and/or DPA breaches causing distress.