Natwest taking me to court ***All 3 Claims Discontinued***

[texanbar]

Let me try again

v.doc

[AndyOrch]

Just a thought Tex you could set a side their SJ application

 

 

CPR 12.3 (3)

 

3) The claimant may not obtain a default judgment if –

 

(a) the defendant has applied –

(i) to have the claimant’s statement of case struck out under rule 3.4; or

 

(ii) for summary judgment under Part 24,

 

and,in either case, that application has not been disposed of;

 

Regards

 

Andy

[AndyOrch]

Further reading:-

 

 

Re-litigating discontinued claims

 

The recent case of Westbrook Dolphin Square Ltd v Friends Provident Life and Pensions Ltd(2) is notable because it is thought to be the first authority on the application of CPR 38.7.

 

CPR 38.7provides that a claimant which discontinues a claim needs the court's permission to make another claim against the same defendant if:

 

• the claimant discontinued the claim after the defendant filed a defence; and
  
• the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.
  

Before Westbrook,the only guidance to be found on CPR 38.7 was the commentary at 38.7.1 in the WhiteBook, which explained that the court would be likely to give permission for a claimant to make another claim against the same defendant where, for example:

 

• the defendant had misled or tricked the claimant;
  
• important new evidence had come to light; or
  
• there had been a retrospective change in the law.
  

However,in Westbrook it was confirmed that the court's approach to CPR 38.7should be informed by the principles that no one should be sued twice over thesame events, and that it is in the public interest to bring litigation to an end.

 

The facts of the case were complex and related to a claim for collective enfranchise mentunder Chapter I of Part I of the Leasehold Reform, Housing Development Act 1993.The judgment referred to the fact that in the previous claim, Westbrook hadcaused both Friends Provident and the courts to expend time and resources todeal with the claim before discontinuing the action shortly before trial. On the facts, the judge therefore did not think that Westbrook was justified inforcing both Friends Provident and the courts to expend further time and resources on litigation of the same question for a second time, as "that would expose Friends Provident to a further period of uncertainty and further irrecoverable costs and divert scarce court resources from other users of the system"

 

It is clear from this case that for an application under CPR 38.7, the onus will be on the applicant to show that it should be given permission to bring a new claim. The judgment in this case also suggests that the courts will set are latively high threshold for granting permission, particularly in consideringthe use of the court's time and resources and those of the other parties to the litigation.

 

 

Preventing subsequent litigation: res judicata and abuse of the court's process

 

 

Resourcetype: Practice note

Jurisdictions:England, Wales

 

This practice note provides guidance on how the court will consider whether litigation should be prevented as res judicata or, as an abuse of process because it raises issues which have, or could have, been decided inprevious proceedings, or is an attack on a previous decision or finding.

 

Regards

 

Andy

 

 

[gezwee]

Hi Tex

 

Sorry, just got in......... will have a look through the details again tomorrow/today evening and see if we can bulk out the w/s to cover any/all counter positions from the other side.

 

Andy has come up with some excellent pointers [as always], I think you'd be well served to include a nod toward the above noted case

 

Catch up with you later, should be on here from 19.00 [ish], if you're about for the evening we'll try to get both w/s completed.

 

Not sure on protocol re: CPR12.3, but I'm sure Andy will walk you through that one if you decide it's a route you want to test.

 

Best wishes

 

Gez

[texanbar]

Dear Andy/Gezwee,

 

I really appreciate you taking the time and helping out. Yes, I agree, I'll be back on here for 1900 and thrash out both WS. Something called 'Christmas Shopping' will be getting in the way today but can't imagine I'll be out for too long! lol!

 

See you all later,

Big hugs

Tex

x

[texanbar]

Hi all,

 

Here is the first draft of my WS.

 

Speak soon.

Tex

WitnessMRSTEX081211.doc

[gezwee]

Evening Tex

 

Had a quick scan through yours and - Oooooo, get you.....lol

 

I'm having a read through now, will get back to you soon

 

Link below to Westbrook if you've not already found it

 

http://www.bailii.org/ew/cases/EWHC/Ch/2011/2302.html

 

Gez

[texanbar]

Thxs Gez

 

Have picked up on a couple of typo's but will address these as we go along. Thanks for the Dolphin et al thread. Reading through as we 'speak'

Tex

[gezwee]

Right

 

Working through their W/S of 19 points and to ensure we don't miss anthing...... this is the basics of Mr T's rebuttal to expand upon:

 

First 7 points below........ if you agree with each position we'll start building on the response and when you're happy with it we'll move onto the next few points etc etc......

 

There's a couple of question marks regarding doc disclosure if you can let me know please

 

Hope that makes sense

 

Your W/S is pretty full on already so I don't think it'll need much tinkering with

 

Gez

 

_________________________

 

1. Yep, agreed

 

2. Yep, we'll give them that too, lol

 

3. Doc bundle...... does their pleading match the number of docs disclosed to Mr Tex? Anything you feel is missing we need to point out asap

 

4. Denied......... we'll expand on this in Mr T's w/s

 

5. Denied...... we'll expand on this too. Have the other side ever served or disclosed the same statements of account within previous cases?

 

6. Omitted docs?? Were these actually included and the other side do not wish to rely on them or have they not been disclosed at all? Response to 15.11, was this served rec del?

 

7. Relief denied....... previous claims to counter for costs + restitutional interest, cheeky buggers are claiming interest on money they now owe you and Mr T [or will do after assessment]

[gezwee]

Hiya

 

Just PM'd ya, hopefully I made sense [rarely do these days, lol] and you'll get the gist of where I'm going with this and why I stopped at point 7 for now on Mr T's

 

Gez

[texanbar]

Right

 

Working through their W/S of 19 points and to ensure we don't miss anthing...... this is the basics of Mr T's rebuttal to expand upon:

 

First 7 points below........ if you agree with each position we'll start building on the response and when you're happy with it we'll move onto the next few points etc etc......

 

There's a couple of question marks regarding doc disclosure if you can let me know please

 

Hope that makes sense

 

Your W/S is pretty full on already so I don't think it'll need much tinkering with

 

Gez

 

_________________________

 

1. Yep, agreed - AGREED TEX

 

2. Yep, we'll give them that too, lol AGREED TEX

 

3. Doc bundle...... does their pleading match the number of docs disclosed to Mr Tex? YES IT DOES Anything you feel is missing we need to point out asap THE ONLY POINT WHICH NOT SURE IS WORTH MENTIONING, IS THERE IS AN ADMITTANCE FROM IM THAT THE CASE BEING BROUGHT AGAINST MR TEX IS PART OF THE INITIAL CLAIM BROUGHT AGAINST MRS TEX (WHICH WAS DISCONTINUED) I HAVE COPIED IT OVER FROM #389 (SEE BELOW) THIS LETTER IS PART OF IM BUNDLES AS REFERRED TO IN IM POINT 6.

 

#389

 

Dear Sir,

 

We refer to the above proceedings which have been transferred to the Northampton CC for the purpose of dealing with your application to strike out our client's claim.

 

We are also in receipt of a Defence filed in response to our client's claim which refers to a credit agreement.

 

We enclose a copy of recent correspondence from which it is clear that the claim related to an unauthorised overdrawn balance on a current account and that you are jointly and severally liable for the debt due to our client in respect of that account.

 

The proceedings to which you refer in your application and Defence were issued against Mrs Tex and the first related to this current account and also a loan account and the second related only to the loan account.

 

We enclose an extract from the Civil Procedures Rules concerning discontinuance and subsequent proceedings.

 

You will see that permission of the Court is required to make another claim against the same Defendant if proceedings have been discontinued.

 

It is abundantly clear from your application that you are aware that previous proceedings have been issued against your wife and not you. Accordingly, you application is entirely misconceived.

 

In the circumstances, we invite you to withdraw your application and Defence and submit repayment proposals to us.

 

Unless we hear from you within the next 7 days, we shall respond to the application and make an application to strike out your Defence and/or for summary judgment in respect of our client's claim.

 

Such as application will seek an order that you pay the costs of the proceedings, including of the application.

 

We trust that this will not be necessary and we look forward to hearing from you.

 

YF

IM LLP

 

 

 

 

4. Denied......... we'll expand on this in Mr T's w/s - AGREED

 

5. Denied...... we'll expand on this too. Have the other side ever served or disclosed the same statements of account within previous cases? WE CAN FIND EVIDENCE WITHIN THEIR AMENDED POC FROM THE FIRST CLAIM, THAT THEY SUBMITTED SCREEN PRINTS OF THE CURRENT A/C. WILL NEED TO SEARCH FOR THESE GEZ - SORRY

 

6. Omitted docs?? Were these actually included and the other side do not wish to rely on them or have they not been disclosed at all? NO I THINK IM HAVE MADE A MISTAKE BECAUSE THERE ARE 8 PAGES OF DOCUMENTS INCLUDED AND THESE ARE ACTUALLY RESPONSES FROM IM (PAGES, 3,4,5 IS OUR RESPONSES TO THEIR LETTER DATED 15/08/11 WHICH IS PAGES 1+2; PAGES 6 (IM LETTER IN RESPONSE TO OUR LETTER WHICH IS SPECIMEN P.3) 7+8 IS THE FINAL LETTER FROM IM ASKING US TO WITHDRAW OUR APPLICATION AND DEFENCE. Response to 15.11, was this served rec del? WE DIDN'T ACTUALLY RESPOND TO THEIR LTR DATED 15.11 ASKING FOR CAPITULATION.

 

7. Relief denied....... previous claims to counter for costs + restitutional interest, cheeky buggers are claiming interest on money they now owe you and Mr T [or will do after assessment]

- ? SORRY COULD YOU DUMB DOWN A LITTLE YEP OKAY ALL UNDERSTOOD NOW

 

Hope this helps Tex

Edited December 10, 2011 by texanbar

[gezwee]

Hi Tex

 

Your inbox is full, can you clear a little space please.......... couple of pointers below

 

Gez

 

.3 - yep got it, Mr T's w/s points 4 & 5............ don't draw a distinction between the 2 previous claims, claim 1 was all encompassing [and failed], claim 2 was split [and failed] don't get drawn into specifics...... they abused process and failed on both counts, thats all you need to be stating. They need to convince the dj they have a valid claim, its enough for you to put doubt in the dj's mind and refer to wb [sorry, I know i do it all the time.......... wb = white book]

 

.5 Would be helpful if you can find something within previous disclosure, if only to get the dj on your side as early as possible

 

 

.6 Not a problem to be honest, would have been an additional nail in their coffin [so to speak, lol] but by the time you get on to the next point their position will be under severe scrutiny regardless of their assertion.

Edited December 10, 2011 by gezwee
wb

[texanbar]

Okay have found the screen prints but only my name is printed on the top. However, on the screen print transaction lines, it does clearly state:

 

Joint O/D facility withdrawn 09/11/2005

 

We have also found the original Termination for the OD dated 09/11/2005 which has BOTH of our names on (albeit amount is different) which disputes IM's WS Point 10:

 

which states they terminated the OD by formal demand on the 6/05/2011.

 

Tex

[gezwee]

Okay have found the screen prints but only my name is printed on the top. However, on the screen print transaction lines, it does clearly state:

 

Joint O/D facility withdrawn 09/11/2005

 

We have also found the original Termination for the OD dated 09/11/2005 which has BOTH of our names on (albeit amount is different) which disputes IM's WS Point 10:

 

which states they terminated the OD by formal demand on the 6/05/2011.

 

Tex

 

Cool....... include termination within w/s [.5 rebuttal] and attach copy as exhibit

 

Gez

[texanbar]

Great - will do

[texanbar]

Gez - would it be possible to carry on with the rest tomorrow or would you prefer to get this done tonight?

 

Thxs

Tex

Edited December 10, 2011 by texanbar
I'm too innocent :)

[texanbar]

ps - loved the photo shoot x

[gezwee]

Gez - would it be possible to carry on with the rest tomorrow or would you prefer to crack this off tonight?

 

Thxs

Tex

 

Tex

 

Do you want me to tell you what crack one off means down this neck of the woods, Mr T would not be a happy bunny, lol

 

Nope, you're fine....... we'll have another look tomorrow evening......... get that WC off before you pack up for the night though

 

Take care

 

Gez

[texanbar]

LOL!

 

Oh no - I've just been told... perhaps I better edit that post lol!

 

Yes can confirm the WC were sent some 3 minutes ago

 

Thxs again Gez, see you tomorrow - I'll be around all day so will be online in the morning.

 

Tex

[gezwee]

Made me chuckle when I read it

 

I'll be on here tomorrow evening about the same time again so post up whatever you've got - you can always e-mail me a copy in case I get the chance to have a look earlier in the day.

 

Gez

[texanbar]

Okay WS completed.

Tex

[texanbar]

Phew! Completed the WS

[caro]

Glad it's sorted tex and keeping everything crossed for you.

[gezwee]

Afternoon Tex

 

Check your e-mail

 

Gez

[texanbar]

Hi everyone,

 

and a BIG thanks to Gez. Both WS's are now complete and we would appreciate a quick glance over to ensure we have covered the points.

Just going to redact a few bits then they will be on here!

Many thanks

Tex