MCOL claim against planning consultant

[jcsurrey]

Hi all
I'm trying to assist a friend who has been screwed over by a planning consultant.
The man took £2,500 in fees up front to appeal a planning refusal decision. (This was agreed verbally but there are some text messages evidencing the agreement.)
After payment, it became clear that he was doing no work on the appeal and was ignoring all calls, messages and emails from my friend trying to discuss things.
In fact in the two months since taking payment there has not been a single conversation and the only contact from the consultant has been 4 text messages making excuses for why he hasnt been in touch and promising a call later that day or the next which never arrives.
With the deadline for the appeal approaching, my friend messaged him saying if he didnt hear from him with evidence of work done, he would take that to mean there was no intention of doing it and would be forced to hire someone else (to make sure it was submitted on time).
This is exactly what happened. The message was ignored and my friend engaged another agent to do the work (paying out another £3,000).

I helped him write a Letter Before Action laying out the situation, the number of ignored calls, the dates of messages and emails and requesting a return of the monies paid, and giving 14 days to respond.
The only response was a message (just beyond the 14 days) with more excuses (admitting he had done no work due to poor mental health) saying he could still get it done in time, and promising a full reply to the letter the next day (which of course never arrived).

I now want to submit a claim for the fees for my friend.
My concern is that the POC be written correctly so as not to create a basis for dismisal on a technicality.
I'd be so grateful for any guidance on:
• What details need to be captured within the 24 lines of the POC?
• Should this be written 3rd person? (eg 'claimant' and 'defendant' rather than first person)
• Would it make the claim stronger to include the list of ignored messages emails and calls in additional particulars or best not to worry about this and include them as part of a witness statement if contested? (They are all included in the letter before action already.)
• Any other gotchas I should be aware of when writing the POC?

Thank you so much.
(My friend is an 80 year old retiree in poor health with very limited savings trying to create some extra security for his wife in their final years and I feel so angry that he's been exploited in this way.)

[Pezza54]

Hi,
Claimant's name and address
Defendant's name and address
Write 3rd person, "the Claimant" and "the Defendant"
Short numbered paragraphs in chronological order
Brief details of the professional services work (planning appeal), the date the completed work required by, the amount agreed and paid in advance and how it was paid
Dates of text messages and emails chasing the defendant for the work and defendant's lack of response.(in one short paragraph)
Date of LBA
Amount claimed, plus interest at 8% pa (calculated in days from the date payment made until date of claim submission)
Statement of Truth,

Was ii made clear to the defendant at the outset that there was a deadline for his work?

Whether you need to state the Defendant failed to provide reasonable care and skill implied under Section 13 of the Supply of Goods and Services Act 1982, I'm not sure.
I'm hoping that others on the forum will help with advice on this.

[jcsurrey]

That's so helpful thank you.
Hoping I can fit that into the 24 lines but if not I can supply the rest as additional particulars. In that case, how do I make sure the court sees those too?
And forgive me but does the statement of truth need to be included in the POC (within the 1080 characters)?- Presuming it's part of the online form?
So grateful again for the input.

(And yes, defendant was fully aware of the deadline for the appeal to be submitted)

[Pezza54]

If you have additional particulars of claim that does not fit onto the MCOL form then these must be sent to the defendant within 14 days of the claim being issued with a letter quoting the claim number and explaining that you are enclosing the extra particulars.
You must than sent to the court an N215 Certificate of Service confirming that you have sent the document.
Both the Particulars of Claim and Additional Particulars should end with a Statement of Truth. Include a copy of the Additional Particulars with N215 certificate for the court to file.

[jcsurrey]

Again, so helpful thank you.
2 questions:
1) Can the additional particulars be sent to the defendant by email?
2) Can the N215 be submitted online (via portal or email?) and if not, where does one send it?

[Pezza54]

1) Yes, attach the letter and particulars to an email. Also send the letter and particulars by post, first class and obtain a receipt of posting.

2)By email to mcol@hmcts.gsi.gov.uk
If you can print, sign, scan and send as pdf document

[R0b]

I would add a couple of points to what Pezza has already stated.

1. If you are using MCOL then on the same page where you insert the particulars, there should be a tick box just above that says something along the lines of you will send additional particulars of claim. If you tick that box, then MCOL should automatically insert a sentence at the end of the brief particulars that you intend to serve detailed particulars within 14 days of the claim form being served. You should be able to verify what the claim form includes when ou move on the next step or two.

It's been a while since I have used MCOL so I don't know if that feature has been removed but if it has, then you can manually insert that as long as you make it clear that you will serve separate additional particulars of claim within 14 days of service of the claim form.

2. If you are serving additional particulars of claim, then the particulars in MCOL should be brief to give a summary of the claim. Your additional particulars of claim would go into more detail to enable the defendant to understand the claim against them.

3. Your particulars in MCOL and in the additional particulars of claim need to be numbered sequentially e.g. 1. 2. 3. 4. for each point being made.

4. Unless the claim is close to being out of time (for breach of contract there is a 6 year limitation period begins on the date the breach occurred), it would be sensible to draft the additional particulars of claim before the claim is actually submitted. Why, might you do that? The answer is time. Once you submit the claim, the claim form is deemed served 5 days after the date it has been issued by the court and you then have 14 days to file those particulars of claim which in practice is a very short time when you have to draft something and really think about it. We all have jobs, other activities and priorities and quite often I see people rush their additional particulars and results in poor or missing particulars.

If you draft your additional particulars of claim now before it is submitted, there is no rush and time is on your side for a change. Note: The Civil Procedure Rules state that the additional particulars must be served after the claim form has been served. In simple terms, you cannot submit the claim and then a day after the claim has been issued, you then serve the additional particulars. As an example:

Claim form issued 1 January 2024

Claim form is deemed served on 6 January 2024 (5 days after the date of issue)

Additional particulars of claim to be served from 7 January 2024 but no later than 4pm 20 January 2024 (must be served within 14 days)

N215 filed with court by email with the claim number in the subject line to ccbc@justice.gov.uk. (this email is taken from Practice Direction 7C (link here)

5. If you wish, we can assist in crafting your brief details of the claim as well as the particulars and give you some guidance on how to set it out and draft it, what to include etc. but you will need to do the legwork and the first draft for us to review. Of course you don't have to do that and can do it yourself without our assistance if you prefer.

[jcsurrey]

This is SO very kind of you both, thank you.
Of course I would be more than grateful for your assistance in writing the POC.
It's also quite possible that I can encapsulate the essential details of the claim within the basic MCOL POC without the need for further particulars.
I will get a first draft down and share asap.
Again, thank you so much.

[jcsurrey]

ok..here's a draft POC:
================================================== ================================================== =========
1. Claimant: XXXX XXXXXX of XX XXXXXXXX XXXX, XXXX XXX
2. Defendant: XXXX XXXXXXXXX of XX XXXXXXXXXXXX, XXXXXXX, XXXX XXX
3. Claimant engaged Defendant in September 2023 to write and submit a planning appeal.
4. The deadline for submission was 13 December 2023.
5. The fee agreed was £2,500 and this was paid by bank transfer (£1000 on Sep 26 2023) and in cash (£1,500 on Sep 27 2023).
7. During October and November Claimant sent 14 text messages, 8 emails and called 14 times leaving multiple voicemails pleading with Defendant to get in touch to discuss progress. All were ignored.
8. On Nov 15 Defendant messaged to say if threr was no response within 3 days, he would assume there was no intention of doing the work and be forced to engage another agent to do the appeal. This too was ignored.
9. On Nov 18 Claimant sent a Letter Before Action requesting a refund of the £2500 as another agent had now been engaged.
10. Defendant messaged on Dec 4 admitting he had not done the work and promising an email reply to the LBA the next day, which never came.
================================================== ================================================== =========

There's no room in this to put the exact dates of the messages and emails although I have them all listed (as well as copies of all and phone records to show the calls made.) Does this warrant extra particulars?
I haven't included the total amount claimed ie £2,500 plus interest in the POC. Is there not a separate section for that on the website, and similarly for details of Claimant and Defendant or does that ALL have to be within the 1080 character POC section?

[R0b]

So you should treat the POC details in MCOL as brief details, because your additional particulars should cover all of the above as to what you have said in more detail.

Here's an example of how you could craft it, which I think is below the character limit for MCOL. Don't forget you need to tick the box that says you will provide additional particulars. Things that are in square brackets would need to be updated.

1. On [XX/XX/XXXX] the Claimant ("C") entered into a [verbal/written] contract with the Defendant ("D") to draft and submit a planning appeal in relation to a failed planning application submitted by C. The appeal submission deadline date was 13 December 2023 and D was made aware of this.

2. The contract was subject to the Consumer Rights Act 2015 as C contracted with D as a consumer.

3. The agreed fee was £2,500 and was duly paid by C. Despite numerous and repeated efforts by C to obtain an update on the progress of the planning appeal submission, D failed to respond at all.

4. On 15/11/2023 C informed D that if no update was provided within 3 days, C would assume that D has no intention of performing the services and that C will engage a third party to perform the services. D failed to reply.

5. C considers D in breach of contract and seeks recovery of the losses incurred of having to engage a third party to perform the services that D should have performed under the terms of the contract.

I've attached a template that you can use for your detailed particulars of claim, if you wish to use it.

[jcsurrey]

That's SO helpful and generous of you to do that thank you Rob.
So if I go with that and then include as part of the additional particulars, details of all the efforts made to make contact that's probably a better way of doing it, right?
I notice that the details of Claimant, Defendant and the amount claimed are not mentioned within the POC (as was suggested in an earlier post from Pezza. Shall I add those to the additional particulars or will they be gathered separately as part of completing the online MCOL forms?