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    • I have not looked much at your WS though it is looking good. I would have mentioned that as they failed to comply with  Town and Country Planning (Control of Advertisements) (England) Regulations 2007. that they are in breach of their agreement CoP with BPA to keep to all the legal requirements in running their parking  operations. It calls into question their right to apply for motorists data from the DVLA. I would wait for their WS to arrive so that you can pick holes in that too. howver watch that if they are late that you send your off just within the Court guidelines. What you are tying to do with your WS is to put your side of the case plus put CEL in as bad a light as possible for them to  decide that they don't really want to go to Court after all.
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    • I am bound to say that their alleged contract is probably the weirdest I have seen. Considering it is supposed to be a serious legal contract to set out the conditions under which CEL manage the parking on land that does not belong to them it leaves a lot to be desired. For a start it does not comply with the BPA Code of Practice which is   7.3 a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement d who has the responsibility for putting up and maintaining signs e the definition of the services provided by each party to the agreement.   Sono  mention of hours: no mention of types of vehicle restrictions: no mention of who is responsible for the erection and maintenance of signage and much more serious -no mention that CEL have to comply with the BPA Code of conduct-that one is listed on 7.1.  All it states is that the operator can pursue outstanding PCs in accordance with the COP but that is not the same as saying that CEL will abide by the CoP which it must say. Also AFAIK the only entity that can pursue for trespass is the land owner regardless of what this quasi agreement says. There is also no mention of the financial aspect of the arrangement nor how the long it lasts and what notice is required for either side to terminate.     It might be worth writing [not emailing ]to Medburn Estates asking them to confirm if this is the only agreement with CEL and whether they think it right that CEL have not received planning permission for their signs from the Council rendering their signs illegal which is more serious than unlawful and therefore all PCNs issued are worthless and should not have been issued as it is impossible to form a contract with motorists when the signs are illegal. Also that as CEL are their agents Medburn Estates LTD are responsible for the actions of their agents. You could also ask them to cofirm that the signature on the paper is that of their Director, Anthony Brown and whether their copy has a counter signature of a CEL representative. Carry on that CEL are taking you to Court and as another Judge has asked a Landowner to appear in front of him to explain their contract, whether it might be in the best interest of Medway to have a serious conversation with CEL to avoid any possible  embarrassments in your  [ie Laluna] Court appearance.        
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Not at all. I am simply advising you as to best practice. Get the various quotes for the repairs and then send it all to the other side for comment.

See what he says. Give him 7 days to respond or else you will have to sue.

If he responds, then come back here. If he doesn't, then sue. Once again, give him a chance in writing to conduct his own investigation. If he refuses then he is playing into your hands.

 

What is it all worth, anyway?


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At the moment, the cost of the original floor, fitting and the expert report, plus interest up to today is in the region of £2200.

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What's the cost of removing or repairing? Don't forget that once you have all of the costings in place, you will have to subtract the original agreed price. You can't sue for that or else you will have the floor for free


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We were working on the premise that the floor can't be repaired (contractor has said as much in writing, while trying to claim it was our fault) and assumed that if we claimed for the original cost, the judge may award a reduced amount, based on the years useage we've had. So, expected life of the floor might be 2O years. We've had 3 years (albeit with problems from the start) so judge may award cost minus a seventh (roughly).

 

Naive?

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If there have been problems from the start then go for the lot. Let the other side introduce the possibility of a reduction


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If there have been problems from the start then go for the lot. Let the other side introduce the possibility of a reduction

 

 

Yes, the first problems arose a week after it was fitted, and then 5 months later and so on until 12 months after it was laid - at which point, the contractor refused to come out and even see for himself what state it was in. It's been in the same state ever since.

 

So, that being the case, can we now file a claim for the whole costs of supply, fitting and the report and let the judge decide?

We have letters from the contractor, stating what he thinks was the problem and the report stating what the problem actually was (poor prep and fitting) and questioning the suitability of the product we bought on recommendation by the contractor. We offered the contractor the option of alternative dispute resolution, plus a chance to be in on the expert inspection, we've asked him to refund us the cost, prior to getting the report, we've written to him ,detailing the main findings of the report and asking him to refund us on this basis - all to no avail.

I will admit, I'm inclined to simply fire off the MCOL now and see what happens.

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Well you've dithered along for three years. I don't think you should suddenly be inclined to start firing off anything until you are fully ready. Take the time to make sure that he has been invited to carry out his own inspection and to get his own costings and come up with his own solutions. Write him a letter before action giving in 14 days after which he will sue. Tell him that during the 14 days he can make his arrangements to visit and to get expert reports or any other information he wants but that if he does not engage with you properly and come up with a solution before then – which is acceptable to you and your expert, that you will then sue him.

 

I'm sorry to say you seem to be going from one extreme to another do this properly and carefully and you have the best chance of an easy victory.

 

Have you done any reading on this site about the steps involved in bringing a small claim? If not – then that is another reason why you are not prepared. Send him a 14 day LBA and in the meantime prepare carefully so that you can then bring action.


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I have already explained - we haven't purposely dithered; the first year was taken up with 're-occurring problems with the floor. The next 12 months was spent trying to come to an agreement with the contractor (in a similar vein to what you are suggesting we do now) and hitting a brick wall, we've spent this year trying to get advice and help as to how best to proceed - including getting an inspection carried out and a report written which took several weeks.

 

If I sound frantic now, it's because I am mindful of your suggestion that we need to crack on. We've sent a letter before action and now we're trying to act. The contractor has stopped responding to our letters - when do we say we've given him enough chances to resolve this and actually start the claim? I feel that we've got plenty of evidence in letters from him that he has washed his hands of the situation.

 

I have tried to read back through as many posts about small claims on the forum as possible. Is there somewhere else I should be looking - somewhere that outlines the whole process, step by step?

I always thought that MCOL and the small claims process was meant to be accessible for the general public - frankly, it feels like the Krypton Factor right now.

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I don't think that we can advise you any further on this.

When you issue the proceedings and you get a response - then please let us know and we will help you with the next step.

 

If he doesn't respond to your claim then make sure that you apply for your judgment as soon as his deadline expires.

 

Good luck


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Thank you.

Please know that I really do appreciate you taking the time and effort to advise me on this.

I apologise if I sound like I don't know whether I'm coming or going - the whole thing has been incredibly stressful, and during the period it's been going on, we have had to deal with some other legal issues with nightmare tenants and abandoned rental properties.

My head feels like it might explode with all the legal stuff I have tried to research, and I am fast learning that at the end of the day, it all comes down to the opinion of the individual judge.

 

Thanks once again for trying to help me - I really do appreciate your efforts.

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We received a paper copy of the AOS today, and while the defendant doesn't admit any of the claim, he had ticked that he wishes to defend part (not all) of it.

How does this work in practice? Does it mean the part he isn't defending will automatically be awarded to us?

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Doesn't it say in the defence what he is admitting to and what he is defending?

 

Anyway what it means is that you can request judgement for the admitted par and then simply go to court on the disputed element.

 

If he has admitted that he owes you a certain sum of money – then when you get the judgement, you can go ahead and enforce it straightaway.


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We haven't had a copy of his defence yet, only the AOS.

He has ticked the box that says, "I intend to defend part of this claim", but there are no further details.

 

We haven't been given anything that suggests he's admitted part of the claim, which is why I'm confused.

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They will make their admissions as part of the defence document, so it should specify which elements are admitted and which are not (and why not)

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Thanks BankFodder and StevemLS.

So to clarify, once we have the defence document, we can request judgement on the non-defended part?

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Admission of part of a claim for a specified amount of money

 

CPR 14.5

 

(1) This rule applies where –

 

(a) the only remedy which the claimant is seeking is the payment of a specified amount of money; and

(b) the defendant admits part of the claim.

(2) The defendant may admit part of the claim by filing an admission in the relevant practice form.

(3) On receipt of the admission, the court will serve a notice on the claimant requiring the return of the notice stating that–

(a) the claimant accepts the amount admitted in satisfaction of the claim;

(b) the claimant does not accept the amount admitted by the defendant and wishes the proceedings to continue; or

© if the defendant has requested time to pay, the claimant accepts the amount admitted in satisfaction of the claim, but not the defendant’s proposals as to payment.

(4) The claimant must –

(a) file the notice; and

(b) serve a copy on the defendant,within 14 days after it is served.

(5) If the claimant does not file the notice within 14 days after it is served on him, the claim is stayed(GL) until the notice is filed.

(6) If the claimant accepts the amount admitted in satisfaction of the claim, they may obtain judgment by filing a request in the relevant practice form and, if they do so –

(a) if the defendant has not requested time to pay, the procedure in paragraphs (7) to (9) will apply;

(b) if the defendant has requested time to pay, the procedure in rule 14.9 will apply.

(7) The claimant may specify in his request for judgment–

(a) the date by which the whole of the judgment debt is to be paid; or

(b) the time and rate at which it is to be paid by instalments.

(8) On receipt of the request for judgment, the court will enter judgment.

(9) Judgment will be for the amount admitted (less any payments made) and costs –

(a) to be paid by the date or at the rate specified in the request for judgment; or

(b) if none is specified, immediately.

 

(If the claimant files notice under paragraph (3) that they wish the proceedings to continue, the procedure which then follows is set out in Part 26)

 

Regards

 

Andy


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Thanks for posting that, andyorch.

What I'm still not clear about is that the AOS we have been sent includes a box for the defendant to tick if he admits part of the claim (presumably in line with what you've posted above). However, he hasn't ticked it - he's only ticked that he will be defending part of the claim.

So, while I understand everything in CRP 14.5, I'm confused about when that comes into play - if the defendant is only defending part of the claim, that suggests he's admitting the rest. If he had stated that and the amount on the AOS, we may accept it and save him the trouble of having to defend the rest.

I'm assuming that his defence will be sent to us now, and include another copy of the form that requires him to tick a box to say he admits part of the claim and details the amount?

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The N9a is the form for full admittance or part admittance...this includes any offer of payment and I&E

 

The N9b is the form for defence/counterclaim......he can defend/ dispute the full amount or he can admit the amount of £ x ..as he has opted for part admittance then he must complete N9b

this is the defence section which the court should serve a copy on you.

 

I assume you have the N9b ?


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We've only received the AOS so far, with "I intend to defend part of this claim" ticked.

 

I am probably making assumptions, assuming that this meant he should have included the admission form at the same time.

I can see now that he should include the admission form with his defence form.

 

Thanks for your help.

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The court will direct and serve the relevant admissions/defences once they have been accepted as a valid defence.


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Thanks for your help, andyorch.

The cut off date for entering his defence is Tuesday. Will the MCOL site show whether he has entered it, or will we simply receive a copy in the post sometime after this date?

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MCOL should update..assuming he is using the on line portal....however the court will also advise if a defence has been submitted


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Thanks, andyorch.

Can I check I've got my timescale right?

Claim was served on the 28th April (issued on 23rd), so cut off date for defence is 26th May?

So, if we call the court on that day and they haven't received the defence, can we request judgement?

Is there any chance that the defence is sitting in an in tray somewhere, unopened? It's just that, with the bank holiday tomorrow, the defendant is cutting it a bit fine if he hasn't sent it yet?

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Issue date 23.04.2015 + 5 days for service = 27.04.2015 + 14 days to acknowledge = 11.05.205 + 14 days to submit defence = 25.0.5.2015 (33 days in total)

 

He might believe he has an extra day because of the BH. I don't know whether this is correct or not.


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Thanks, citizenB.

MCOL say that the service was 28/04, so that makes the cut off date for the defence to be submitted tomorrow.

If bank holidays are included, this is the second one for May - so that would turn the 33 days into 35. I can't find any info about whether bank holidays count, bit I am assuming they do, since it doesn't mention working days anywhere in time limits allowed?

 

There is no indication on MCOL that a defence has been submitted - the last entry for our case is the AOS on 08/05.

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