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Abuse of process - Henderson v Henderson 1843 cited


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I had a claim struck out last year and the defendant was awarded cost.

I have submitted a new claim over the same dispute. The defendant's solicitor has cited Henderson v Henderson 1843 and has asked for the new claim to be struck out.

 

CPR 3.4 4 © is in play as I'm still in the process of paying off the costs awarded to the defendant in the struck out claim.

 

My argument rests on the following: the defendant argued (in the struck out claim) that my claim was a criminal claim and not a civil one. The judge agreed. My argument is the judge had no jurisdiction to decide litigious aspects of the original claim (as the defendant is now trying to claim).

 

For clarity I haven't resubmitted my original claim or amended it. I've started a new claim with a new set of facts (although one fact remains the same in both cases).

 

What arguments can be made to challenge Henderson and Henderson 1843?

Edited by pop_gun
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Hi there.

 

Im in the opposite position (Ive submitted a summary judgment/strike out claim against my landlord as his new claim is an exact duplication of an older struck out claim).

 

It would appear to me that in your new claim that you cant even attempt to start a new claim untill the money owing is paid, I would of thought that the defendant could have your claim struck out for this alone.

 

The judge has every right to decide on the facts in the claim and it appears that is what he has done.

 

Did you ask for a set aside in the original claim ?...and if that was unsuccesful, did you appeal ? That is the correct process, starting a new claim really is an abuse of process and I dont believe you will be succesful, the only possible argument I can think of is that the circumstances have changes, compelling new evidence has come to light or there has been some kind of fraud or mistake. (How do your facts differ in this new case, it is a general rule that you should of bought forward all the relevant facts the first time).

 

*Note: My hearing is coming up - Monday 14th and I hope to be succesful for many of the sqme reasons as your defendant.

 

Andy

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Should I apply to have my claim discontinued?

 

If the judge can decide aspects of a claim meant for the criminal courts (in a civil court)

why the need for jurisdiction? Why can't any judge hear any case in any court?

 

I didn't apply to have the original claim set aside or appeal as I could have been hit with

higher cost in the latter instance.

 

my PoC is as follows

 

 

Particulars of Claim

1. On 1st july 2010, the Claimant took and passed the defendant's health and safety test.

2. On the 26 July 2010 the Claimant started the Defendant's 4 day slinger\signaller course.

3. On the 27th July 2010 the Claimant complained to the course instructor about the crane

operator ignoring instructions given by the Claimant. The course instructor agreed with Claimant,

the crane operator wasn't performing his duties in regards to what was expected of him and said

he would speak to him. Later that same day the Claimant e-mailed the Defendant to complain

about the crane operator's conduct.

4. On the 29th July 2010, with the same crane operator performing the test, I was informed I had

failed the practical test. The reason given was the assessor believed the Claimant to be unsafe.

Steps required to become a competent slinger\signaller.

Step 1. Pass the Defendant's health and safety test. Cost £47. This is mandatory and must be

done prior to booking the slinger\signaller course.

Step 2. Purchase and complete a theory test and a practical test. Student will be given a red

CPCS card from the Defendant. Cost £1,165

Step 3. Find a slinger\slinger job. Complete 300 hours (minimum) in a slinger\signaller role. An

authorised person has to sign a logbook to verify the hours have been completed.

Step 4. Complete a NVQ practical test. Cost £800+ (depending on the vendor).

The defendant will then provide the student with a blue card, which means the student is now

'competent'

The contract between the Defendant and the Claimant is in breach of the Unfair Contract Terms

act 1977 section 9(2)

A) It is unreasonable to be failed for a course, which if passed would confer no benefit other than

a red CPCS card. The Claimant was a trainee prior to the course and if he had passed the test

would still have remained a trainee.

The contract between the Defendant and the Claimant is in breach of the Unfair Contract Terms

act 1977 section 1(a)

B) The outcome of the practical test is almost wholly reliant on the performance of the crane

operator, The Defendant is aware of this. The Defendant ignored the claimant's complaints, thus

allowing the negligent performance of the contract. The Defendant did not fulfil it's obligation in

relation to the implied terms of the contract to respond to Claimant’s concerns until the Claimant

had pressed the matter with numerous phone calls to the Defendant and a second written

complaint.

The contract between the Defendant and the Claimant is in breach of the Unfair Contract Terms

act 1977 section 11(1)

C) The defendant's health and safety test is mandatory for anyone taking the slinger\signaller

course. It is unreasonable and misleading for the Defendant to fail the Claimant on the grounds

he was unsafe, when the Defendant's health and safety test confirms the certificate holder to be

safe.

 

 

This breach the human rights act 1998 article 2 : right to education. The agreement the defendant has with NVQ body means I can't approach that body and train to become conpetent as I require the defendant red CPCS card *before* I can train with them.

Edited by pop_gun
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Whether you discontinue is upto you (you will still be liable for costs though, upto the point of discontinuing), although there is some logic to let a case go through to a hearing IF its on the small claims track as then costs would be limited.

 

To be honest I dont really understand the civil/criminal court part, all we know is that the claim has been before a court and struck out, my view is that it is a clear abuse of process to start the claim again (otherwise whats the point of the first strike out), in my case my freeholder at least had an another attempt by putting in a set aside application (as you should of done) but he was unsuccesful in this.

 

Has your defendant actually put in a Summary Judgment (CPR 24) / Strike Out (CPR 3.4) application ?, this is used to throw out re-litigated cases and youll be liable for costs (although they prob will be 'fixed costs' in the £200-£500 region.

 

I really dont understand your POC (and I dont think a Judge will either), I dont think it puts forward any legal recognisable claim. I think you should get some advice and seriously think before going any further.

 

Why was the original claim struck out ?

 

You have several hurdles to overcome (the fact you havnt paid previous costs, the fact it is re-litigation, the fact you didnt apply for the first strike out to be set aside and even then you may lose the actual case).

 

Andy

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Whether you discontinue is upto you (you will still be liable for costs though, upto the point of discontinuing), although there is some logic to let a case go through to a hearing IF its on the small claims track as then costs would be limited.

 

To be honest I dont really understand the civil/criminal court part, all we know is that the claim has been before a court and struck out, my view is that it is a clear abuse of process to start the claim again (otherwise whats the point of the first strike out), in my case my freeholder at least had an another attempt by putting in a set aside application (as you should of done) but he was unsuccesful in this.

 

Has your defendant actually put in a Summary Judgment (CPR 24) / Strike Out (CPR 3.4) application ?, this is used to throw out re-litigated cases and youll be liable for costs (although they prob will be 'fixed costs' in the £200-£500 region.

 

I really dont understand your POC (and I dont think a Judge will either), I dont think it puts forward any legal recognisable claim. I think you should get some advice and seriously think before going any further.

 

Why was the original claim struck out ?

 

You have several hurdles to overcome (the fact you havnt paid previous costs, the fact it is re-litigation, the fact you didnt apply for the first strike out to be set aside and even then you may lose the actual case).

 

Andy

 

What is meant by legally recognisable claim? I've never understood this.

I have stated the facts as clearly as is possible. The contract I entered into with the defendant

is illegal. How is it possible for a judge to see this and act according to the law?

 

The original claim was struck out "as not disclosing a course of action", "no reasonable prospect of success on the claim".

 

I reading this case on CAG

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?210585-Claim-struck-out-can-creditor-make-new-claim-Well-they-have-issued-new-claim.

 

It seems the Judge in this ignored the law and came out fighting for the claimant. Truly scandalous. It doesn't give me hope as I'm the little guy, just like the OP in that case.

Edited by pop_gun
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Legally recognisable claim means that according to points of law and/or a contract, you are owed £x amount.

 

Why do you claim that the contract you entered into was 'illegal' ?

 

You also havnt told us why the claim was struck out originally ?

 

Quite franlkly your POC is a mess, it should at least start with details of the Contract entererd into between you and the Defendant and point out how the Defendant has breached it ?

 

Andy

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Legally recognisable claim means that according to points of law and/or a contract, you are owed £x amount.

 

Why do you claim that the contract you entered into was 'illegal' ?

 

You also havnt told us why the claim was struck out originally ?

 

Andy

 

The original claim was struck out (at the hearing) because the defendant's solicitor argued

the claim was a criminal matter (I cited consumer protection law) and not a civil matter.

 

The judge prior to the hearing had asked me to amend the claim to delete legislation I was using.

 

The contract is illegal because anyone can go and apply to do a vocational NVQ course. For instance if you wanted to be get an NVQ in plumbing you would have to find a job and take photographs of you performing certain trade skills. Put that in a portfolio and then pay to be assessed by a NVQ assessor. With this course you have to pass the defendant course BEFORE you can train.

 

Access to the NVQ course is limited only for this particular course. For other courses provided by the NVQ body there's no requirement to pass any test.

 

The red card the defendant provides on passing the test does not confer competency. My argument is on what grounds can someone reasonably fail this test? Those that pass the test are considered incompetent and those that fail are also. If this were not true the defendant would issue a blue competency card on passing it's test. but it doesn't.

Edited by pop_gun
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Aha.

 

And why do you think your second claim will be any more succesful ?

 

My views are:-

 

1. It will be instantly struck out due to CPR 3.4 4 - Non paymenmt of previous amounts

 

2. It will be struck out due to CPR 3.4 (2) a) - Discloses no reasonable grounds OR 3.4 (2) (b) and/or CPR 3.4 (a) & (b) - Abuse of process/Ignoring court order or direction

 

3. Judgment will be given due to CPR 24 (2) (a) - No prospect of success

 

4. There is a bar on re-litigating previously judged cases (Res Judicata - The Henderson v Henderson case (although this does realte to 'judged' cases, which possibly may not apply to struck out cases))

 

Even if it got past all the above, I dont think you have explained any sort of claim for breach of contract in your POC). Maybe you do have a claim but a Judge can only go on whats in front of him, and your POC does not explain your case well. (It is possible to amend it but you risk more costs).

 

Andy

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"The course instructor agreed with Claimant,

the crane operator wasn't performing his duties in regards to what was expected of him and said

he would speak to him. Later that same day the Claimant e-mailed the Defendant to complain

about the crane operator's conduct"

 

isn't this a breach of contract? It could reasonably be expected that the crane operator perform his

duties in a manner that satisfies the course instructor (let alone me). The course instructor will not testify

against his employers (obviously).

 

How can this be legal written, so as to be recognisable in a court of law?

 

There's is no formal contract. I saw the course online and paid for it.

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Im getting lost here, so a crane operator wasnt performing his duties, you havnt explained how this affected you or how it caused you any loss ? You have to remember that I (and a Judge) doesnt know anything about this case, to jump in and start going on about cranes makes no sense !.

 

Andy

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I went into detail on the first claim and the judge didn't understand that either. He actually said

in relation to my complaint to the defendant, "it would have to be judged how much of this had an effect on you passing or failing the course".

 

I, then asked the judge "am I responsible for the crane operator's action".

To which he replied "yes!"

 

 

The best way of explaining this is thus: If I was working in a removals company and they asked me and a colleague

to move a table (let's assume he's the only person available)

who refused to perform the task. If I complain to a supervisor and nothing is done and then I go over his head and nothing is done. What am I to do? Doesn't the colleague have equal responsibility if I'am later sacked because the table wasn't moved?

 

The loss is in the fee I paid for the course. I've already said I failed the course. Surely that is obvious and doesn't need mentioning twice.

 

My position is: failing the course is illegal as there are no ground on which you can fail. It's more or less an awareness course.

Edited by pop_gun
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I really cant get my head around this, Ive flagged it up for maybe some other site members to have a look.

 

But from what I can see, its very likely to get struck out for abuse/re-litigation even if it survives that, I cant see you have a claim, you need to persuede a Judge and I feel he is going to be just as confused as me !

 

Andy

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Even if the second POC is different, the general rule is that you should of advanced any arguments in the first claim.

 

Possible reasons to pursue another claim MAY be:-

 

New evidence has come to light.

 

New injuries have occurred (not really relevant to this case, but does occur in some cases).

 

CPR 3.4/CPR 24 exist for very good reasons and that is to stop defendants being harrassed or 'vexed' again and again. Claimants really do only have one attempt at their claim, if they screw up then it may well be 'tough'.

 

The cases where Henderson v Henderson isnt followed appear to be where the second claim is quite a bit different from the first.

 

This paragraph sums it up nicely

 

"The rule in Henderson v. Henderson (1843) 3 Hare 100 is very well known. It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed."

 

Andy

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Well, it doesnt really matter IF they are different but WHY, the defendant could say (if both claims are identical), there is no difference, if the second claim brings new points, the defendant could say, these points should of been bought forward the first time (it clearly is unfair to continually think of new points and start claim after claim). The only possible reason is that new evidence has emerged, or evidence was hidden before.

 

Res Judicata is throught to apply if:-

 

a) Parties are the same

 

b) The issue is the same

 

c) The issue has been judged, a judgment by court or tribunal (or an order by court).

 

Anyway by the sounds of it, the defendant will win straight away due to CPR 3.4 (4) © - Claimant hasnt paid costs from last time.

 

Andy

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The defendant argued (in the original claim) that my claim was a criminal matter, hence should be heard in the high court.

The judge agreed! With me so far?

 

Andy, I just linked a CAG thread where the judge ignored Res Judicata, despite everyone telling the OP

his case was solid. The judge (in the linked case) even told the OP (Clynite) he should apply to strike out the

defendant claim. Clynite does this and it is rejected and he's asked to file a defence.

 

I believe you're right concerning my case. I will apply for a discontinuance. Can anyone link the forms for me please.

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Yeah I was just wondering how different they were and if there was any chance to get around that.

 

In the original claim I set out exactly what happens. Blow for blow, each detail. The judge asks me to amend the claim because the court doesn't have jurisdiction to hear part of my claim. Even though all the advice I got stated they could hear the case.

I amend it using different legislation. The defendant argues the court doesn't have jurisdiction as the claim is a criminal case in nature. The DJ agrees and strikes the claim out.

Edited by pop_gun
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Hi Pop gun

 

I have been following your thread most of the afternoon. I think the problems lies with your PoC ie negligence v breach of contract and your losses.I cant see any aspect were Criminal enters the claim.

The problem is not with Res Judicata but the undertaking and understanding of what you are actually claiming.I think if you had pleaded a far more simple statement of case your claim would have had far better chance of success.

 

Regards

 

Andy

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What arguments can be made to challenge Henderson and Henderson 1843?

 

Let's deal with each point in turn:

 

When people refer to res judicata, they are referring to the finality of judgment and estoppel by record/issue/cause of action. As there is no judgment in your case, there can't be finality of the proceedings which is why we have CPR 3.4 dictating the steps which should take place if the proceedings want to be restored. This is an oversimplification but a useful one for you.

 

Abuse of process vis a vis Henderson v Henderson - You will have to differentiate your case from this instant one by stating that the issues have not already been decided by a competent authority (there was no pronouncement of judgement or a forum for parties to put their case forward).

 

You also have Collins v CPS Fuels Ltd 2001 to contend with however, you may try and differentiate based on the fact that this case is about delay and an unless order, whilst in your first claim, it was the naivety and ignorance of a litigant in person which made you plead your particulars of claim wrong.

 

A key case which puts Henderson v Henderson in perspective is Johnson v Gore Wood & Co (a firm) 2000, where it is stated:

 

"One of the main reasons for the rule in Henderson v Henderson is the prevention of the risk that different courts seized of different actions dealing with the same subject matter and raising the same issues will come to different conclusions. This would be unfair to the parties, particularly to an initially successful party who fails in a subsequent proceeding, and bring the administration of justice into disrepute."

 

So that is a useful reference.

 

I would spend time reading the case law, and understanding it and differentiating it from your circumstance with arguments as to why it should not apply to you.

 

You can also use Article 6(1) of the European Convention on Human Rights for the right to a fair trial. There is case law again on this but I haven't delved into it in detail.

 

I suggest reading Osman v United Kingdom 1998 and Kent v Griffiths 2001 with regards to the convention and the court's power to strike out.

 

Now back to the contractual side, what does it say in the contract between you and them?

 

Does it put down any deliverables to which you can hold them to account on?

 

Are there any warranties as to the competency of the staff concerned, etc?

 

What is your loss exactly? Do you have pay again for the course, etc.? Potential loss of earnings because you couldn't start a job in time?

 

What is their duty of care to you?

 

Your statement of case is poorly pleaded and is confusing as mentioned previously. You might need to amend that?

 

Finally, if they put in an application to strike out, you would use the above arguments and also ask for the case to be stayed until you are compliant with CPR r. 3.4(4)©.

 

These are some of the points you have to consider.

 

I wish you luck in your endeavours.

 

HMMH

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just a quick comment although you passed the H&S course which is mandatory I cannot see why you think you cant be failked on the grounds that you are unsfae. H&S courses are very general albeit appertaining to the required industry, but surely there is a difference between this and the written and practicle tests that you take on the course. As far as I can see the H&S course is to make sure that uyou are generally up to date with safety issues but does not test your competancy to carry out tasks therefore you could fail.

As far as I can see if you complete the course to a satisfactory standard then you will get a red card which basically tells an employer that you have the basic skills to carry out the tasks required but that you are not fully qualified until you have the blue card which is in the form of completing an NVQ.

I cant see how any employer would take on someone that dosent have the red card but if there were no need for tests then anyone could have one, and there is no point in having tests if everyone can pass.

I dont see that your argument of failing the course is illegal hold up.

If I have been of any help, please click on my star and let me know, thank you.

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Ps. Forgot to mention that if you purchased the service online, most reputable companies have their contract online as well which dictate the terms associated with your purchase. Something for you to check in conjunction with the contractual questions mentioned above.

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Let's deal with each point in turn:

 

When people refer to res judicata, they are referring to the finality of judgment and estoppel by record/issue/cause of action. As there is no judgment in your case, there can't be finality of the proceedings which is why we have CPR 3.4 dictating the steps which should take place if the proceedings want to be restored. This is an oversimplification but a useful one for you.

 

Abuse of process vis a vis Henderson v Henderson - You will have to differentiate your case from this instant one by stating that the issues have not already been decided by a competent authority (there was no pronouncement of judgement or a forum for parties to put their case forward).

 

You also have Collins v CPS Fuels Ltd 2001 to contend with however, you may try and differentiate based on the fact that this case is about delay and an unless order, whilst in your first claim, it was the naivety and ignorance of a litigant in person which made you plead your particulars of claim wrong.

 

A key case which puts Henderson v Henderson in perspective is Johnson v Gore Wood & Co (a firm) 2000, where it is stated:

 

"One of the main reasons for the rule in Henderson v Henderson is the prevention of the risk that different courts seized of different actions dealing with the same subject matter and raising the same issues will come to different conclusions. This would be unfair to the parties, particularly to an initially successful party who fails in a subsequent proceeding, and bring the administration of justice into disrepute."

 

So that is a useful reference.

 

I would spend time reading the case law, and understanding it and differentiating it from your circumstance with arguments as to why it should not apply to you.

 

You can also use Article 6(1) of the European Convention on Human Rights for the right to a fair trial. There is case law again on this but I haven't delved into it in detail.

 

I suggest reading Osman v United Kingdom 1998 and Kent v Griffiths 2001 with regards to the convention and the court's power to strike out.

 

Now back to the contractual side, what does it say in the contract between you and them?

 

Does it put down any deliverables to which you can hold them to account on?

 

Are there any warranties as to the competency of the staff concerned, etc?

 

What is your loss exactly? Do you have pay again for the course, etc.? Potential loss of earnings because you couldn't start a job in time?

 

What is their duty of care to you?

 

Your statement of case is poorly pleaded and is confusing as mentioned previously. You might need to amend that?

 

Finally, if they put in an application to strike out, you would use the above arguments and also ask for the case to be stayed until you are compliant with CPR r. 3.4(4)©.

 

These are some of the points you have to consider.

 

I wish you luck in your endeavours.

 

HMMH

 

I was reading some case law and authorities on this earlier and one did point out that Orders (made by a court) should be construed the same as a Judgment and offer finality too.

 

Even ignoring Res Judicata it appears that the OP still has lots of hurdles to overcome (the obvious one being CPR 3.4 (4) © - although as you point out a stay could resolve this), even assuming that there was no actual judgment, the OP is effectively ignoring a strike out order by re-litigating.

 

As others have pointed out, the POC is a mess and appears to me unlikely to succeed.

 

The OP should be careful before discontinuing as he will be liable for costs incurred so far, perhaps he should write to the defendant and offer to 'drop hands', i.e both sides walk away with no costs.

 

Andy

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I was reading some case law and authorities on this earlier and one did point out that Orders (made by a court) should be construed the same as a Judgment and offer finality too.

 

Not all court orders are created equal and without seeing the relevant case law, I am guessing that the statement may be derived from County Courts Act 1984 (1984 c 28).

 

Section 70 of the above act states:

 

Finality of judgments and orders.

 

Every judgment and order of a county court shall, except as provided by this or any other Act or as may be prescribed, be final and conclusive between the parties.

 

However in the case of the strike out provisions, there is an avenue to recover from that strikeout, either via relief from sanctions or the instigation of a new claim, both are subject to the court's discretion to allow the claim to proceed.

 

the OP is effectively ignoring a strike out order by re-litigating

 

The strike out in itself is not an inherent bar to re-litigate. The conditions attached to it are.

 

I think the OP should go seek professional guidance with all their documentation as I am not even sure there is a cause of action as mentioned but if there is a cause of action, it will probably lie on contract, hence my questions above, and maybe the tort of negligence. However right now, I am can't really see either except an unhappy student unfortunately.

 

HMMH

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