Horizon Proceedings

[Gooner]

Good Afternoon

I have previously received advice on the flta.uk website, my thread link is:

https://www.ftla.uk/private-parking-tick...-received/

I thought this had died a death, however I have now recieved in the post a Notice Of Transfer Of Proceedings to the claimant Horizon Parking Limited, the advice previously was that the claimant would usually pull out of proceedings before any fees were paid, I am happy to wait and see but I am concerned that I should also be doing something in preparation/ anticipation for any escalation of the matter.

Any advice would be greatly appreciated.

Thank You

[b789]

Welcome to the forum @Gooner. I have had a quick review of the thread over on FTLA. I see that I advised you at the time to submit the following defence:

1. The Defendant denies the claim in its entirety. The Defendant asserts that there is no liability to the Claimant and that no debt is owed. The claim is without merit and does not adequately disclose any comprehensible cause of action.

2. There is a lack of precise detail in the Particulars of Claim (PoC) in respect of the factual and legal allegations made against the Defendant such that the PoC do not comply with CPR 16.4(1)(a).

3. The Defendant is unable to plead properly to the PoC because:

(a) The contract referred to is not detailed or attached to the PoC in accordance with CPR PD 16(7.5);

(b) The PoC do not state the exact wording of the clause (or clauses) of the terms and conditions of the contract (or contracts) which is/are relied on;

(c) The PoC do not adequately set out the reason (or reasons) why the claimant asserts the defendant has breached the contract (or contracts)

(d) The PoC do not state with sufficient particularity exactly where the breach occurred, the exact time when the breach occurred and how long it is alleged that the vehicle was parked before the parking charge was allegedly incurred;

(e) The PoC do not state precisely how the sum claimed is calculated, including the basis for any statutory interest, damages, or other charges;

(f) The PoC do not state what proportion of the claim is the parking charge and what proportion is damages;

(g) The PoC do not provide clarity on whether the Defendant is sued as the driver or the keeper of the vehicle, as the claimant cannot plead alternative causes of action without specificity.

4. The Defendant cites the cases of CEL v Chan 2023 [E7GM9W44] and CPMS v Akande 2024 [K0DP5J30], which are persuasive appellate decisions. In these cases, claims were struck out due to identical failures to comply with CPR 16.4(1)(a). Transcripts of these decisions are attached to this Defence.

5. The Defendant attaches to this defence a copy of a draft order approved by a district judge at another court. The court struck out the claim of its own initiative after determining that the Particulars of Claim failed to comply with CPR 16.4.(1)(a). The judge noted that the claimant had failed to:

(i) Set out the exact wording of the clause (or clauses) of the terms and conditions relied upon;

(ii) Failed to explain the reasons why the defendant was allegedly in breach of contract;

(iii) Provide separate, detailed Particulars of Claim as permitted under CPR PD 7C.5.2(2).

(iv) The court further observed that, given the modest sum claimed, requiring further case management steps would be disproportionate and contrary to the overriding objective. Accordingly, the judge struck out the claim outright rather than permitting an amendment.

6. The Defendant submits that the same reasoning applies in this case and invites the court to adopt a similar approach by striking out the claim for the Claimant’s failure to comply with CPR 16.4(1)(a).

Can you please confirm which bulk litigator is handling this for Horizon? I'm assuming that it is Gladstones rather than DCB Legal. If that is the case, they are unlikely to discontinue before the hearing, unlike with DCB Legal.

Can you please show me the Notice of Allocation you received and the relevant dates on it. There will be a hearing date, a date for the claimant to pay the £27 trial fee and also a date or deadline to submit the Witness Statement.

The reason I suspect that it is Gladstones that are representing Horizon is because the defence I advised is due to their utter incompetence at drafting Particulars of Claim (PoC) that fail to comply with CPR 16.4(1)(a). There is still a good chance they will not proceed as far as a hearing, but knowing Gladstones, they are not the brightest firm of litigators and will try and push this all the way.

Once you have shown me the Notice of Transfer and the judges orders and dates, I can then advise on what happens next and what to expect. You will not send a Witness Statement until you've seen theirs.

[Gooner]

Hello @b789

1. It is indeed Gladstones

2. Notice of Allocation Attached

Thank you very much

[b789]

OK. That is the Notice of Transfer. You will receive a Notice of Allocation. That is the one we need to see when it arrives.

[Gooner]

Good Evening

I have now received the Notice Of Allocation which I attach.

Many Thanks

[b789]

I need to see the other pages/back of the order as there will be other info.

[Gooner]

My apologies, I attach all other pages, the back of the order only has my name and address for envelope window.

Many Thanks

[b789]

@Gooner, OK, so the deadline for witness statements to be exchanged is 03 June. Treat that as a firm deadline and aim to have your own WS ready and served on time.

As this is Gladstones, expect their WS to arrive very close to the deadline, if not late. That may put you at a practical disadvantage, but it also works against them if they try to ambush you with new detail that should have been pleaded properly in the Particulars of Claim.

Because their PoC are so poor, there is a limit to how much can be answered in detail until their evidence is seen. Your WS can deal with the facts as you know them, but it will also include the point that the Particulars of Claim are generic and inadequately pleaded, contrary to CPR 16.4 and PD 16.

Where a claim is based upon an agreement, PD 16 requires proper particulars of that agreement. In Liberty Homes (Kent) Ltd v Rajakanthan & Ors [2022] EWHC 2201 (TCC), Mrs Justice Jefford DBE held that it is implicit that the Particulars of Claim must set out whether the agreement relied upon is oral, written, by conduct, or some combination. The Claimant has failed to do so.

That is important because the Claimant should not be allowed to use its witness statement to repair defective pleadings after the event. A witness statement is evidence. It is not a substitute for properly pleaded Particulars of Claim.

Once we see their WS, we can deal with anything new, misleading or unsupported in it. If necessary, a short supplementary response can be considered, especially if they serve late or introduce matters that were never properly pleaded.

The hearing is listed for 17 July. In this case, the judge has required witness statements to be prepared and served before the Claimant becomes liable for the £27 trial fee, so we will see whether they actually commit to progressing the claim.

Also, Gladstones witness statements are often written by someone employed by Gladstones rather than by anyone from the Claimant with direct knowledge of the facts. That can be pointed out to the court. Their statement may be admissible, but much of it is likely to be hearsay, template commentary, legal argument, or assertion rather than direct factual evidence.

The defective PoC should therefore remain a central issue. At the hearing, you can invite the judge to strike out the claim under CPR 3.4, or alternatively to give little weight to any attempt by the Claimant to use its WS to introduce a case that should have been pleaded properly from the outset.

[Gooner]

Thank you for explaining, would my witness statement be the same as the initial defence statement furnished last year where reference was made to CEL v Chan and CPMS v Akande or should a witness statement be structured differently ?

[b789]

@Gooner The defence is not supposed to be the full story or the full evidence. Think of it as a series of “hooks” on which the later witness statement hangs.

The defence is written in the third person because it is a formal statement of the Defendant’s pleaded position. It says, in broad terms, what is denied, what is not admitted, and what legal or procedural issues are being relied upon.

The witness statement is different. It is written in the first person because it is your evidence. It should say things like “I received…”, “I saw…”, “I did not receive…”, “The signs were…”, “The Claimant has not shown…”, and so on.

So the defence sets out the issues: defective PoC, no properly pleaded contract, lack of clarity, poor signage, no clear cause of action, and reliance on cases such as CEL v Chan and CPMS v Akande.

The WS then puts factual flesh on those bones. It explains what actually happened, refers to the documents, exhibits the evidence, and shows why the Claimant still has not proved its case.

So no, the WS should not simply repeat the defence. It should build on it. The defence gives the court the legal and procedural hooks; the WS is where your own factual evidence is hung from those hooks.