Creation Consumer Finance claimform - old Fridge loan - struck out - they tried again - **WON+COSTS TWICE**

[intree]

Polite Bump for advice

[hammyhound]

What about this, is this any help. Not too sure if you are using the same annotation for both the defence and the application notice but IMHO can be used for both.

 

1. The Claimant issued proceedings under claim number ........................... on .......................... I enclose a copy of the Order dated ............... confirming that these proceedings were struck out.

 

2. The Claimant has now re-issued proceedings under the present claim number in relation to the same facts which are the same or substantially the same as those relating to the previous proceedings.

 

3. I request that the court strike out these present proceedings as they are an abuse of process.

 

For your N244 I would tick the box "without a hearing" and not mention the fact that you don't really want to attend but that is only my opinion, others might have different opinions. It is up to a judge really whether he wants a hearing even though you have requested not to have one.

 

HH

[intree]

Thanks HH I will amend as advised and send this with the application to strike out

[AndyOrch]

What about this, is this any help. Not too sure if you are using the same annotation for both the defence and the application notice but IMHO can be used for both.

 

1. The Claimant issued proceedings under claim number ........................... on .......................... I enclose a copy of the Order dated ............... confirming that these proceedings were struck out.

 

2. The Claimant has now re-issued proceedings under the present claim number in relation to the same facts which are the same or substantially the same as those relating to the previous proceedings.

 

3. I request that the court strike out these present proceedings as they are an abuse of process. Persuent to CPR Part 38.7

 

For your N244 I would tick the box "without a hearing" and not mention the fact that you don't really want to attend but that is only my opinion, others might have different opinions. It is up to a judge really whether he wants a hearing even though you have requested not to have one.

 

HH

 

 

Regards

Andy

[hammyhound]

Andy, I did put the relevant CPR 38.7 in my case as they did discontinue but left it out of Intree's as the Claimant had their case struck out and did not discontinue. I don't really know if discontinuance is the same as having the claim struck out but glad you are there to guide us all.

 

HH

[AndyOrch]

If it was struck out then you are quite right Hammy retract the 38.7.

 

 

Regards

 

Andy

[intree]

Thank you HH and Andy

 

I have sent in the applications and £40 fee for striking the claim out as advised:

 

I just hope that the Judge will not allow this claim through as it is clear that they are trying to abuse the court process - when they have already been to court with the same facts and the claim struck out due to the unreasonable conduct.

 

I will keep you posted - thanks

[intree]

Hi Just had a court order

 

stating that we must attend our local magistrates court, for the hearing of the application to strike out, in november - I am a bit surprised as i was hoping it would have just been done automaticaly rather than through a hearing - the hearing is for 20 minutes and at 10.am prompt.

 

ANY ADVISE PLEASE -

[caro]

It's not unusual for a hearing. Presumably the judge wants a bit more info before making a decision.

 

Make sure that you are well prepared with your reasons for the application.

Edited October 17, 2010 by caro

[intree]

Hi I have been advised by the court that these idiots have put in a costs claim for attending at the hearing this thursday for over 700 quid, I am not sure what they are doing as they have appointed a solicitor to attend who will be paid £250 quid - are they allowed to do this for a application from me to strike ir claim for abuse of process and what can I claim - for this abuse of process

[pt2537]

The Reality is that the judge can allow the claim if the case is not presented adequatly on the day of the application.

 

We have just secured leave to appeal on a case where res judicata was relied upon but the lay person failed to argue adequatly and got tied up in knots by their counsel.

 

It seems to me from the little ive read, that you are looking at a defence of issue estoppel or Res Judicata as its more commonly referred to.

 

It is a tricky area of law and one that needs a final decision along with evidence being heard etc, under normal circumstances.

 

If they have issued after discontinuance then that is more tricky, but not impossible

 

As for costs, they are entitled to their reasonable costs if you lose, so yes that does seem a fair fee for the hearing

[intree]

Thanks PT

 

How does one defend this - when they failed to provide documents, had warning from the court, were given 3 orders and then struck out, with costs awarded against them - they now have re-issued a new DN A NEW TN and claimed the same as before, when I had submitted my defence and when they had sent in a amended particulars of claim in response to my defence, then failed to respond any further.

 

Can I also claim my costs .................??

[pt2537]

costs? yes, deffo

 

This case may assist http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2001/435.html&query=Lennon+and+v+and+Birmingham+and+City+and+Council&method=boolean

 

but, i strongly advise you to get a solicitor to represent you at the hearing, if you fail with Res, you will have to face the claim again, so a solicitor is worth the expense id suggest plus the costs will be recoverable if you win

[intree]

Thank you PT

 

I am unable to appoint a solicitor at such short notice, I will use the law guide you have issued on the web and also the claim which is a precedent I believe, I have mentioned above in the forum.

 

I am also claiming costs of 600 quid as I have had to do a lot of research and work on this.

 

Any further help really appreciated.

[pt2537]

unable at short notice?

 

Wow, that seems hard to believe, given you can walk in and instruct a fee earner to attend a hearing at 10 minutes notice

[intree]

this is going to be there argument in court apparently - any advice appreciated

 

 

There are a number of points in your email which require response.

 

Firstly, the account has not been struck out by order of the court. It is the claim in those proceedings which has been struck out and we set out, in our letter to you dated 28 July 2009. There was no determination of any of the issues pleaded by either of the parties and for that reason, there would be no abuse of process in taking further proceedings.

 

The representative who attended court on our behalf has reported to us fully of the comments made by District Judge . At the end of the costs hearing you asked the district judge to rule that our client could not bring a claim against you again. She replied that she could not do so and then went on to say that if a second claim was brought on the same facts, this may amount to an abuse of process.

 

We are fully aware of the circumstances in which proceedings may be an abuse of process and we are quite sure that should there be any further proceedings against you then they would not give rise to any such abuse. In any event, the matter does not arise until such time as ther are further court proceedings. The district judge has already told you that she cannot prevent the issue of further proceedings. If and when you are served with the further proceedings, you wish to take issue such as abuse of process then your own adviser will tell you how to do so and whether there is any merit in so doing.

 

At no time in the recent proceedings did you deny going into Land of Leather, did you deny purchasing furniture with the benefit of an agreement with our client or did you deny that there were monies unpaid arising out of that agreement. If you have any proposals to make in relation to the payment of those outstanding monies, then please let us have them for consideration.

 

Your belief that the representative at the costs hearing was from a different solicitors is also incorrect. The representative was from an agency, instructed by us, to attend on our behalf. It is an agency which we use frequently for hearings outside of our locality.

[intree]

this was also sent by them - they presume that by issuing a new default notice on the same claim which was struck out last year - they can continue with their claim - despite the original contract they rely on being terminated and accepted by myself as such - I dont know why they would attend a costs assesment and be told by the DJ to pay me 670 quid for their failures and unreasonable behaviour - not raise a appeal earlier or at that hearing and try again, I just hope it will be the same Judge as she had a few words to say to them last time!!

 

any help appreciated -

[intree]

2nd e-mail sent by them today:

 

Thank you for your email earlier today.

 

 

 

You are again referred to our letter dated 21/01/2010. For the sake of completeness, we repeat that this is not the same claim. Whilst the parties remain the same, these are separate proceedings brought under different particulars of claim and using a different default notice.

 

 

 

The previous claim was struck out on a technicality, the court never having the opportunity to adjudicate properly and in relation to your indebtedness with our client. Your application in relation to estoppel and abuse of process is misguided.

 

 

 

We look forward to hearing from you following the hearing.

[intree]

I would be grateful for a direction on this matter in light of the e-mails above..................THANK NYOU

[pt2537]

Lennon v Birmingham

 

They are talking nonsense

 

your problem appears to be one of advocacy, as the arguments are set out clearly, you need to be skilled in the advocacy and presenting your case, and that is something that that we cant help with

 

i repeat, get counsel to do your hearing, if you win its paid for, if you lose they can sue you without recourse

 

sooo much at stake imho that Counsel is needed

[intree]

Thank you PT

 

I am looking into fee earner legal assistance, I will hear from them later - they have agreed like you that they are at risk of costs being awarded against them and also that Lennon v Birmingham City Council is authority for the claim to be struck out - the fact that the merits of the claim were not considered due to the solicitors negligence in the previous claimi is irrelevant.

 

He has advised me to take all the documents from last year and in particular copy the order striking out the claim, last year and the Order which awarded us costs after a summary assesment hearing last year.

 

He has also advised on the phone what to argue, he will let me know what else I need to know later.......... He has stated that if I keep highlighting the past order and the Judgement Lennon, the judge has no leeway as the higher court binds the decision which he must follow based on the facts to date................

 

I am very grateful to you PT and have sought further advice - you have been a great help to me over the last 2 years.

 

Thank you and all on this site

[intree]

I would be grateful for any further help in this matter, they have responded with a statement based on the above, which they have sent to court, I have also prepared one, to stick to my points in the application.

 

This really is a joke and harrasment from a greedy firm of solicitors, they have added over 1000 costs for this new claim, plus 250 quid for a barrister to attend the hearing.................I hope they will one day pay for their actions .....................!!

 

ALL HELP APPRECIATED

[intree]

They have issued me a witness statement confirming that the claim has been in court, but the merits have not been heard, they also state they will no longer rely on a old DN and issued a new one and will rely on that one - ARE THEY REAL?????

[caro]

Lennon v Birmingham

 

They are talking nonsense

 

your problem appears to be one of advocacy, as the arguments are set out clearly, you need to be skilled in the advocacy and presenting your case, and that is something that that we cant help with

 

i repeat, get counsel to do your hearing, if you win its paid for, if you lose they can sue you without recourse

 

sooo much at stake imho that Counsel is needed

 

I'm pleased you think the arguments are set out clearly PT, as I'm sure that will help intree. Obviously there is a lot at stake as you rightly say, but supposing worst came to the worst, and even with representation the OP got one of those judges who says "You had the goods so cough up", what sort of additional costs would intree expect to incur for the defence counsel?

 

unable at short notice?

 

Wow, that seems hard to believe, given you can walk in and instruct a fee earner to attend a hearing at 10 minutes notice

 

Given the complexities I assume that you wouldn't recommend this course of action and would want assurance that they were competent in this area of the law.

 

 

Thank you PT

 

I am looking into fee earner legal assistance, I will hear from them later - they have agreed like you that they are at risk of costs being awarded against them and also that Lennon v Birmingham City Council is authority for the claim to be struck out - the fact that the merits of the claim were not considered due to the solicitors negligence in the previous claimi is irrelevant.

 

He has advised me to take all the documents from last year and in particular copy the order striking out the claim, last year and the Order which awarded us costs after a summary assesment hearing last year.

 

He has also advised on the phone what to argue, he will let me know what else I need to know later.......... He has stated that if I keep highlighting the past order and the Judgement Lennon, the judge has no leeway as the higher court binds the decision which he must follow based on the facts to date................

 

I am very grateful to you PT and have sought further advice - you have been a great help to me over the last 2 years.

 

Thank you and all on this site

 

Good to know that the experts agree on this.

 

Make sure that you take every bit of paper that you have when you go to court and that you can easily lay your hands on it. Just in case you find that you have to represent yourself it's important to be prepared for every eventuality if you can. There's some good advice here.:- http://www.consumeractiongroup.co.uk/forum/showthread.php?163425-Re-Me-vs-MBNA-court-case-looming-help-please-**DISCONTINUED**&p=2171582&viewfull=1#post2171582

[pt2537]

Caro,

 

In circumstances such as these, it really is a one trick pony, get it wrong and they have their claim reinstated and you pay their costs.

 

So i would always advocate a barrister who specialises in this area of law

 

Mark Monaghan of Angel Chambers is a barrister who has been to the Court of Appeal with these types of arguments, there are many direct access counsel, or counsel out there who are prepared to work on no win no fee (CFA) agreements

 

It is long overdue that a directory be put inplace, especially now since the advertising rules are so relaxed, word of mouth is the best way for people to get access to justice