Alleged Wrong Defendant and Civil Procedure Rule 16

[Enough]

Morning All,

I would really appreciate some advice about a small claims court claim for which I am the claimant.

I purchased a service from a very well known national business which came with a no-quibble guarantee. The service (on this occasion only) turned out to be really poor so I tried to claim on the guarantee but the company refused to honour it and instead we had an exchange of emails in which each reply from the company was in broken English and full of cut and pasted cliché phrases. I got fed up with it so I sent a Letter Before Action and then started a claim when they still refused to honour it.

The court granted them extra time for whatever reason and now they have appointed a solicitor and sent me (and the court) their defence.

The defence alleges that the defendant is the not company responsible and the the case should be thrown out. The terms & conditions agreed to on the website do not mention any company name and do not provide an address. Furthermore there is no registered address listed on the website anywhere. So when I made the claim I searched for the company details on companies house and found a company which a) shares the exact brand name of the website I ordered from and b) has the same address as the parent company of this brand. The defendant claims the contract was actually with a different company. However, they did manage to respond to the letter before action and the solicitor claims to representing both companies in the defence.

Is there any legal requirement for a company to display it's registered name and address within the terms and conditions or on the website?

The defence goes on to suggest that "The Defendant avers that the Claimant has not complied with the provisions of Civil Procedure Rule (“CPR”) 16 and its Practice Direction in the pleading of its case. In particular, the Claimant has not:
4.1.1 provided a copy of the contract or the documents constituting the alleged agreement between the parties; and/or
4.1.2 provided any general conditions of sale incorporated in the contract, or those parts relied upon;"
In previous email communication with the company I have provided copies of the contract and highlighted the relevant parts, but the small claims court application didn't mention any need to supply this again at the time of making a claim.

What should I do now?

Thanks in advance!

E

[atticus]

Does the defendant say who the correct defendant (in their opinion) should be?

[Enough]

Hi,

Yes they do.

"It is denied that the (company a) is the correct Defendant. (company b) is, however, a company registered in England and Wales and the correct Defendant. Should it be the Claimant’s intention to claim against (company b) in this action, it should apply to amend the Claim form and agree to pay (company b)'s costs of that application.
This Defence is served on behalf of (company b)."

[R0b]

If it is a well-known business and they have an online presence then I would be very surprised there is no company information as to who you are contracting with. There are regulations about company stationary e.g. paper, invoices etc. and online websites which require them to provide their company name, registered office and company number but you may have to look for it.

Can you tell us the name of the company?

[Enough]

Hi Rob,

The company is Premier Inn.

I have just now been through every single page and the only mention I can find is within the 'terms of use' page, which states "this site is operated by Whitbread Group PLC ("Whitbread"), whose registered office is Whitbread Court, Houghton Hall Business Park, Porz Avenue, Dunstable LU5 5XE (company number 00029423 and VAT number 243292864). Premier Inn Limited is a subsidiary of Whitbread."

Premier Inn Ltd. is the company that I have made a claim against (company a).

[atticus]

Have they said why they say Co B is the correct defendant? What is Co B's name?

[atticus]

I have looked through my emails with Premier Inn - we stay in their hotels a couple of times a year.

I have seen 3 different things in respect of our last 3 visits:

Most recently, no company name but:

Registered office: Whitbread Group PLC, Whitbread Court, Houghton Hall
Business Park, Porz Avenue, Dunstable LU5 5XE. Registered in
England number 29423. VAT registration number 243 2928 64.


Before that:

Premier Inn Hotels Limited (company no. 6190411) is a member of the Whitbread Group, the parent of which is Whitbread Group PLC

And another time:

Whitbread Hotels Company Ltd is part of Whitbread Group PLC. They obviously have no desire to make things easy for you. I suggest that you trawl your e-mails and make sure that the Court sees the weapons-grade obfuscation.

[R0b]

Well blow me down, I think you have a valid and fair point for pursuing Premier Inn Limited and I also think their lawyers have made a bit of a cock up in terms of the defence. Little busy at the moment to explain but I'll let you know my thoughts later today/evening.

[Enough]

Thanks both of you.

My confirmation email from the booking includes details of the payment being made to Premier Inn, part of Whitbread Group PLC
V.A.T. Reg. number: 243 2928 64.

At the bottom of the email it reads: "The sender of this e-mail is a member of the Whitbread group of companies, the ultimate parentof which is Whitbread PLC (company number 4120344). The registered office address ofWhitbread PLC and all of the above-mentioned principal operating subsidiaries is WhitbreadCourt, Houghton Hall Business Park, Porz Avenue, Dunstable LU5 5XE."

Premier Inn are claiming that the correct defendant is Premier Inn Hotels Ltd. not Premier Inn Ltd. but they have not provided any reason why.

[R0b]

Here's my take on things. Looking at their website, there is nothing to suggest that Premier Inn Hotels Limited is the contracting entity when you reserve a booking on their website. To be honest, I was half expecting you to say that they would be suggesting Whitbread PLC should be the defendant but hey ho.

Few points that go in your favour:

- Regulation 24(2) of The Company, Limited Liability Partnership and Business (Names and Trading Disclosures) Regulations 2015 requires all companies to display their registered name on all websites and at the bottom of the website page it states copyright 2022 Premier Inn (the Regulations allows companies to omit "Limited" from their name which is why I assume it says just Premier Inn). If the correct defendant was indeed Premier Inn Hotels Limited then this should have been updated to make that clear.

- The website is www.PremierInn.co.uk not something like wwwpremierinnhotels.co.uk

- There's nothing in the terms and conditions that indicates Premier Inn Hotels Limited is the contracting entity when you make a reservation on their website.

- Your confirmation email points to Premier Inn and not Premier Inn hotels.

- There is in fact a company that exists called Premier Inn Limited under company number 06190411.

Taking all of the above into account, one could come to the reasonable conclusion that Premier Inn Limited is the company that you contracted with. The onus is on them to prove that Premier Inn Hotels Limited was in fact the contracting entity. Bear in mind it is not your job as the customer to hunt down who the contracting party is rather the Premier Inn should make this clear from the start, not hidden away somewhere. Just in case they try amend the website and claim that it states Premier Inn Hotels Limited was listed, I've saved the pages using the Wayback machine website so you can use that as evidence, links below.

Link to the homepage: Premier Inn hotels | Book direct (archive.org)
Link to booking terms and conditions: Booking terms and conditions | Premier Inn (archive.org)

Overall, I think you got a decent chance of arguing this and it may be that they back down however, what I am more interested in is the clarity of the defence. Are you able to share that with personal info redacted?

Reason why I ask is because the snippet you shared said that the defence is filed on behalf of "Company b" and I assume company b refers to Premier Inn Hotels Limited? If that's the case, it would seem to me that this is where they have cocked up. If the defendant in the claim is company a (Premier Inn) then it looks like they haven't filed a defence for that defendant. If the time required to file a defence has passed, you are free to request default judgment against Premier Inn Limited - that's assuming you have told us everything and you've not held back anything important like the court substituting the parties or anything like that.

It would be helpful to see the actual defence so I can confirm but I think that's a pretty significant error on their solicitor's part unless Premier Inn Hotels Limited has been added as a defendant to the claim. If not, I can't understand why their solicitor would file a defence on behalf of PIHL if they are not party to the claim.

[Enough]

Thanks Rob, that's very helpful, I will have a proper read through it all again when I have some spare time tomorrow night.

In the mean time, here is a redacted copy of the defence I have received (directly from Premier Inn's solicitor).

[R0b]

Unless I'm missing something, the only defendant listed in the Defence is Premier Inn Limited. Premier Inns Limited is not a party to proceedings, they have no legal standing as such and therefore the filing of that defence is absolutely irrelevant. It should be taken as such that Premier Inn who is the defendant to the claim, has not filed a defence and I would repeat what I said before, if there is no defence from Premier Inn Limited that has been filed with the court and the time required to file a defence has now expired, I think you are fully within your rights to request a default judgment.

Now, I'm not familiar with the Online Civil Money Claims scheme because it's a pilot scheme and we all tend to use the old Money Claims Online Service (this one MCOL - Money Claim Online - Welcome). The rules for the OCMC are set out in Practice Direction 51R of the Civil Procedure Rules. From what I have skimmed, here are the rules on default judgment which is not too dissimilar to the other claim rules:

SECTION 11 – CONSEQUENCES OF THE DEFENDANT FAILING TO RESPOND ON TIME

Consequences of the defendant failing to respond to the court on time: judgment in default of responding

11.1(1) If the defendant does not, on time, contact the court, submit a time extension form (if appropriate) and submit to the court a completed response form or a paper response form, the claimant may request that the court make a judgment in default unless subparagraph (2A) applies.

11.1(2) The claimant may request a judgment in default by completing and submitting form OCON205A (“judgment in default form”) online using the OCMC website. When requesting judgment, the claimant may also specify their repayment plan (as defined).

(2A) If there is a moratorium in place under the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020, so that a claimant needs the court’s permission to apply for a default judgment, the claimant must make an application to the court in accordance with Civil Procedure Rules Part 23. If the court receives such an application, it must send the claim out of Online Civil Money Claims.

(3) If the court receives a request for judgment in default, it must “enter judgment” (as defined), unless paragraph 11.1A applies (When default judgment cannot be made).
When default judgment cannot be made

11.1A (1) The claimant may not obtain a default judgment if, at the date judgment is to be entered, the defendant has paid the amount owed in full (including any claim for court fees and interest).

(2) The claimant also may not obtain a default judgment under paragraph 11.1(3) if, at the date judgment is to be entered, the court has received any paper or electronic response from the defendant, or a notice or application from the defendant or another person.

(3) If the court has received any paper or electronic response, or notice or application, the claim must be referred to a judge for an order or directions

I think its pretty clear cut here, the defendant aka Premier Inn Limited has not filed a defence. The legal representatives have in fact filed a defence on behalf of PIHL who are not party to the claim and therefore that defence has no meaning at all.

So, if you so wanted once the time to file a defence has expired, you need to submit Form OCON205A. Because sometimes the court staff are absolutely clueless, I would be inclined to write a covering letter explaining the reason behind the request for default judgment as I've described - happy to look over that if you need feedback.

I would say however, there is a risk that by entering default judgment, Premier Inn may make an application to set aside the default judgment. If successful, then the claim restarts back to the defence stage unless the court orders otherwise. There could be a risk of costs you have to pay if you are unsuccessful but that is not automatic and the court may deviate from that general position where it is appropriate. I would say in this case it would be appropriate because they have clearly thought about Premier Inn being the defendant and their defence clearly states that the defence is served on behalf of PIHL not PIL so they cocked up and they should bear their own costs.

Personally, I would take the risk and request default judgment and also defend any application to set aside for the reasons given and they can't just be having a second bite of the cherry because they refused to file a defence on behalf of PIL - that was their conscious choice not to do so and there's no mistake in that as far as I'm aware. They could have exercised other options like an application to strike out your claim or request summary judgment or seek to substitute the parties but they didn't, bigger fool them.

Of course it is entirely your choice on whether you want to seek default judgment and try to bring the matter to an end or if you want it to run its course right through to the hearing and see what happens though you may win or you may lose.

[Enough]

Thanks again Rob, I've decided to take your advice and I have requested a default judgement via the OCMC website, which unfortunately doesn't provide any opportunity to add any comments or upload supporting documentation. I have instead sent an email to the court service with a brief explanation and asked them to forward it to the relevant persons for their consideration. I'll let you know how I get on.

Many Thanks,

E

[Manxman]

Enough - I appreciate that this isn't relevant to your original question, but I presume your claim is based on them not honouring their Good Night Guarantee after you were affected by low water pressure?

May I ask whether you notified them of the low water pressure as soon as you became aware of it, or did you only raise the matter with them the following morning when you were checking out?

I ask because I'm aware that Premier Inn can sometimes be "awkward" about honouring the guarantee if they haven't been notified immediately of problems and haven't been given a chance to rectify the issue. (eg by immediately moving you to another room). If you are woken at 2am by noisy neighbours they want you to complain about it at 2am and not the following morning when they can't fix it. Whether drawing their immediate attention to problems is actually covered in the wording of the guarantee I don't know...

I can't add anything to rob 's comments concerning default judgemnt and whether it's the right defendant or not.

[Enough]

Hi Manxman,

We didn't notify them at the time because we retuned to the room late at night. The last thing you want when you're naked and wanting to have a shower before bed is to have to get dressed, traipse back down to reception and then inevitably have to move all of your possessions to another room. That process would also cause a bad nights sleep I reckon.

Though as it happens having later checked the Good Night Guarantee terms you only need to notify them within 7 days of leaving the hotel, not immediately after experiencing the problem.

E