TBI Claimform - old HFC Credit card Debt - **WON** - default notice fee but NO default produced

[NitrousOxide]

Well done

I know it's only small claim and doesn't set any precedent, but would it not help others to quote your claim to sols and/or use the claim in defences?

[foolishgirl]

I think Canaan attached her defence as a pdf file earlier in the thread, NO.

 

It may be unwise for her to attach full details of the arguments she intended to use at her hearing that the claimants are unaware of, as they may find the default notice & try to pursue her again. In which case she would have to dig out all her stuff & start again. Not likely I know but it does sometimes happen.

Edited January 21, 2009 by foolishgirl
typo

[banker_rhymes_with]

It may be too late, but there may be scope to ask the Court to consider declaring the Agreement Unenforceable via s142?

 

I regret I don't know so, if anyone does, please fire away, or shoot the idea down in flames if it's not an option at this stage (or wasn't even a sensible option when in Court).

 

Cheers,

BRW

Edited January 21, 2009 by banker_rhymes_with
Can't Type and still can't Spell!

[pt2537]

It may be too late, but there may be scope to ask the Court to consider declaring the Agreement Unenforceable via s142?

 

I regret I don't know, so if anyone does, please fire away, or shoot the idea down in flames if it's no an option at this stage.

 

Cheers,

BRW

you can bring free standing action for a declaration against the creditor if you want a declaration or you can see the right to Counter claim for the same ( see Southern District Finance v Turner )

[banker_rhymes_with]

Hello PT!

 

you can bring free standing action for a declaration against the creditor if you want a declaration or you can see the right to Counter claim for the same ( see Southern District Finance v Turner )

 

Many thanks.

 

My own feeling is that Canaan should consider striking while the iron is still hot, to try and see this one put to bed once and for all.

 

If they could not find the Default Notice now, then now is perhaps the time to finish them off?

 

That'll stop the issue of them popping back up later to have another toot.

 

Cheers,

BRW

[Canaan]

I think Canaan attached her defence as a pdf file earlier in the thread, NO.

It may be unwise for her to attach full details of the arguments she intended to use at her hearing that the claimants are unaware of, as they may find the default notice & try to pursue her again. In which case she would have to dig out all her stuff & start again. Not likely I know but it does sometimes happen.

 

I did think about attaching everything to the thread but then thought the same as you FG 8-)

If this debt was for a serious amount of money then I could see them trying again but for 3k??? I would love to know how much they have spent on it so far.

Canaan

[Canaan]

you can bring free standing action for a declaration against the creditor if you want a declaration or you can see the right to Counter claim for the same ( see Southern District Finance v Turner )

 

How would I go about this? And what would the chance of sucess be? I have read the judgement on southern district V Turner Southern & District and Finance PLC v Turner (YAWS version 47.1 (27 October 2008)) but I could'nt make much sense of it.

Canaan

[Canaan]

I am still working on the letter to claim costs. Is there a time limit for getting this in after the hearing??

Canaan

[foolishgirl]

I did think about attaching everything to the thread but then thought the same as you FG 8-)

If this debt was for a serious amount of money then I could see them trying again but for 3k??? I would love to know how much they have spent on it so far.

Canaan

 

Think you'd be really unlucky if they tried again. In any case, you have a double backstop in that they would have to produce proof of sending the DN & also the lack of CCA. I can understand why BRW & pt think a declaration would be a good idea & now you've had your day in court you may be happy to repeat the experience Your decision...

 

I am still working on the letter to claim costs. Is there a time limit for getting this in after the hearing??

Canaan

 

Suggest you get it in asap, this week if poss. - you're more likely to get it approved if you demonstrate you've not 'sat'on it.

[Canaan]

I have received a letter today stating...

We refer to the above matter and with respect to the hearing dateed 19th Jan 2009.

We enclose for your further reference Default Notice dated 15th February 2008 that was served upon you at the above address via first class post of that date.

Looks like they might be taking another stab at me! In that case they better come up with proof it was delivered to me and sort out the excuse for a credit agreement they have!!

Canaan

[foolishgirl]

Certainly looks that way Canaan. What a bummer.

 

Any chance you can post the notice up (minus personal details) - suspect it could be a cobbled one, just too coincidental that they should suddenly find it don't you think? And they would def. have to produce POP!! Not to mention enforceable CCA.

 

Idiots - this case must now be so uneconomic for them.

 

Look on the bright side - they're just adding to your cost claim.

Edited January 23, 2009 by foolishgirl
Addition

[banker_rhymes_with]

Hello Canaan!

 

PT2537 may have some thoughts on them coming back for another bite of the pie, this from PT in another Thread:

 

Further, a party to litigation is required to bring forward his whole case, and is generally not permitted to bring later proceedings raising matters that could have been resolved in the earlier proceedings...

 

Cheers,

BRW

Edited January 23, 2009 by banker_rhymes_with
Tidy up

[Canaan]

Thanks Banker.

Hopefully PT will have a look in and have some ideas on where to go with this one.

Canaan

[Von Greenbach]

Hi Canaan

 

Sorry things don't seem to be going well, it's still early days yet I'm sure PT will have the correct advice for you.

 

Keep your chin up

[Canaan]

Thanks Von Greenbach

[Canaan]

Hello Canaan!

PT2537 may have some thoughts on them coming back for another bite of the pie, this from PT in another Thread:

Cheers,

BRW

 

So does this mean that they have to start right from scratch, they can't just turn up with the default notice and say "here it is....... we win!"

Canaan

[pt2537]

So does this mean that they have to start right from scratch, they can't just turn up with the default notice and say "here it is....... we win!"

Canaan

They cannot just stick another claim into the court pure and simple, although many companies do.

 

They can apply under certain conditions for the judges order to be set aside and the claim reinstated but that normally needs to be done within 7 days

 

Heres is some guidance on the matter

 

 

 

Relitigation amounting to an abuse of process

There have been several cases dealing with whether a claim which is inconsistent with an earlier claim or evidence given by the claimant in earlier proceedings (such as an affidavit used in an application to discharge a freezing injunction) should be struck out as an abuse of process. Further, a party to litigation is required to bring forward his whole case, and is generally not permitted to bring later proceedings raising matters that could have been resolved in the earlier proceedings (the rule in Henderson v Henderson (1843) 3 Hare 100). It is clear from cases such as Bradford and Bingley Building Society v Seddon [1999] 1 WLR 1482 that there are two main elements:

(a) that the second claim is one that could have been brought in the first claim, or is inconflict with an earlier claim or evidence; and

(b) an additional element, such as a collateral attack on the earlier decision, or dishonesty, election, or unjust harassment.

Thus, in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 a claim against the police was struck out as it was held to be no more than a collateral attack upon the decision of another court of competent jurisdiction.

Issue estoppel Where the issues raised in an earlier claim are identical to the issues raised in a later claim, there is an absolute bar on the later proceedings unless fraud or collusion is alleged (Arnold v National Westminster Bank plc [1991] 2 AC 93). Where an issue decided in a previous claim between the parties is central to a second claim between the same parties, the whole second claim will be struck out (Kennecott Utah Copper Corporation v Minet Ltd [2002] EWHC 1622 (Comm), [2003] PNLR 18). Issue estoppel applies where an order is made, and it does not matter whether the order was made by consent or after argument (Lennon v Birmingham City Council [2001] EWCA Civ 435, LTL 27/3/2001). Issue estoppel also arises to prevent a party reopening a liability issue after a judgment for damages to be decided by the court on the assessment of damages (Item Software (UK) Ltd v Fassihi (2003) LTL 28/1/2003). There is no issue estoppel if there is no definitive decision on the issue in the first claim (Tannu v Moosajee [2003]

EWCA Civ 815, LTL 20/6/2003).

Where the parties in the two claims are not the same, issue estoppel does not apply (Sweetman

v Nathan [2003] EWCA Civ 1115, The Times, 1 September 2003), and further, the factual findings in the first claim are not admissible evidence in the second claim (Hollington v F. Hewthorn and Co. Ltd [1943] KB 587). A person claiming title to goods or land is treated as being privy to the interests of those through whom title is claimed, and so will be bound by the decision in proceedings in which any predecessor in title was a party, but only if judgment in those proceedings was given before the presently claimed title was acquired. A person who purchased title before judgment is not regarded as a privy (Powell v Wiltshire [2004] EWCA Civ 534, [2005] QB 117).

Issue which should have been raised in earlier proceedings It is an abuse of process to raise in a second claim an issue which should have been raised against someone who was a party to earlier proceedings (Henderson v Henderson (1843) 3 Hare 100; Talbot v Berkshire County Council [1994] QB 290). Where it is alleged that an issue was or should have been raised in earlier proceedings, it is first necessary to consider whether issue estoppel applies, which can only be

negatived by fraud or collusion It is only if there is no such estoppel that it is appropriate to consider whether raising the issue now would be an abuse of process under the principle in Henderson v Henderson (see Coflexip SA v Stolt Offshore MS Ltd [2004] EWCA Civ 213,

[2004] FSR 34; Kennecott Utah Copper Corporation v Minet Ltd [2003] EWCA Civ 905, [2004] 1 All ER

(Comm) 60; Bim Kemi AB v Blackburn Chemicals Ltd [2004] EWCA Civ 1490, The Times, 22 November

2004). In Johnson v Gore Wood and Co. [2002] 2 AC 1 the House of Lords held that when considering whether a second claim is an abuse of process a broad, merits-based judgment has to be made, taking into account all the public and private interests involved, and all the facts.

[Smarterchick]

Sorry to chip in here, but Estoppel is something I could do with help on here if someone could find the time http://www.consumeractiongroup.co.uk/forum/legal-issues/179549-contract-law-verbal-agreement.html

[wakieblue]

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[42man]

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