Claim Stuck Out But is This The End

[Helpmeoutplease]

I have had my county court claim struck out that CL finance were trying to bring against me, I recieved a formal letter yesterday which stated:

 

Before An Officer Of The Court sitting at Northampton County Court Northampton NN1 3QH.

 

Upon non compliance with court order of the 05 January 2009

 

IT IS ORDERED that

 

The claim is struck out.

 

Dated 13 March 2009

 

 

 

My worry is that my defence was based on regular payments were being made and no CCA was produced when requested. once the case was over I sent CL the account in dispute letter and stopped payments.

I'm worried that they may apply to the court to re-instate the claim, does anyone have any experience of this?

Can I adjust my defence if they do?

Can i do anything now to stop them re-applying

[yourbank]

do you mean they have had their case thrown out or that yours had?

[Bill Shidding]

CL finance were trying

 

It on.

 

Considering they should of had your agreement before they issued a claim, and its that particular Co. I very much doubt they will try it again, either by resurrecting this claim or starting afresh.

Make sure you think about applying for your costs, and consider the hidden implications of doing so.

 

Can i do anything now to stop them re-applying

 

You could try a request for Judgment in your favour, if / when you have a costs hearing or by making an application. I have found just asking the DJ at a costs hearing could give you a good idea of how your application might go. If the DJ thinks that the claimants claim was without merit he might give you Judgment. Other than that, I think you have to be reactive, unfortunately.

 

Can I adjust my defence if they do

 

If they start a new claim, you file / serve a new defence. Depending on their POC.

If they attempt to resurrect this one, you should ask the court for permission to amend your defence accordingly if their evidence / POC changes.

 

Relax, take it easy and have a beer / vodka:).

You showed them you know what your doing. They'll probably go off (in a huff) and hassle an easier target now.

 

Bill

[Helpmeoutplease]

thanks for your posts.

 

Yourbank, they had there claim thrown out.

They made the claim after they took over the account from HFC, i kept maiking payments to HFC as thats who I thought i should be paying. The first i knew about CL was when i got a court claim against me.

 

 

Bill Sidding

I hope your right, just got a nasty feeling they will keep trying to get me

[Von Greenbach]

If they attempt to resurrect this one,

They need permission from the court first!!

[Helpmeoutplease]

can i counter claim any attempt they make to re-start the claim

[DocH]

Yes, you can file for the new claim to be struck out as an abuse of process, as they have already had their original claim struck out.

[Helpmeoutplease]

I may need your help DocH if they try to re-start this claim.

[Bill Shidding]

Hi VG;)

 

If they attempt to resurrect this one

 

attempt = By making an application to the court.

 

 

Hi DocH

 

Yes, you can file for the new claim to be struck out as an abuse of process

 

In my particular case (which were very similar circumstances as the OP) the DJ did not consider the issuance of a new claim as an abuse of process, so personally I don't think the OP will get much mileage from claiming an abuse of process in this instance. Additionally, I don't believe there is anything in the CPR to prevent them from issuing a new claim either, bar the following (which don't apply, as yet).

 

There are only 2 Civil Procedure Rules (I know of) that can prevent a claimant from issuing a new claim;

 

Injunction

 

Unpaid costs from previous action, and that is only effective if the Defendant makes an application. This only lasts until the costs are paid.

 

 

Res judicata ONLY applies to cases that have been to trial and adjudicated, so no joy there either.

 

IF they try to continue this claim or start a new one, which I really don't think they will, the best option is to strongly object to the re-instatement, pointing out as many errors on the claimants side as possible.

 

All of this is hypothetical at this time anyway, if I were the OP I'd either claim my costs now or forget about it until/if something new happens. Then there will be something to work on.

 

 

Bill

Edited March 20, 2009 by Bill Shidding

[DocH]

Hi Bill,

 

I don't dispute what you say, but I had CPR 38.7 in mind when I replied to their question of "can i counter claim any attempt they make to re-start the claim", the judge may or may not buy it, it is afterall within their discretion under their case management powers:

 

CPR 38.7

 

A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if-

 

(a) he discontinued the claim after the defendant filed a defence; and

(b) the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.

 

 

If following discontinuance fresh proceedings are commenced either with or without permission of the court the discontinuance is not of itself a defence to the fresh claim. It is suggested that the permission to commence fresh proceedings will not be easily given since in any event the new claim could be struck out as an abuse of the court’s process under CPR 3.4 (see para CPR 3.4©). The court is likely to attach conditions to any permission given under this Rule such as an initial requirement that the costs for which the applicant is liable upon the discontinued proceedings are paid beforehand and that the claimant otherwise makes a payment into court.

[Bill Shidding]

Hi DocH,

 

I totally agree that the case management is dependant on the individual Judge. As Judges are able to have a bit of leeway/discretion, this point is a 100% valid one.

 

Please bear in mind though that the OPs case was not discontinued. This, I think, would be the first thing the claimants advocate brings to the Judges attention, if this CPR was quoted/used.

 

Besides, I'm sure we both know that trying to predict what a Judge will do when/if they have a choice, isn't a good idea. Not least for one's own sanity!

 

Kind regards

Bill

[DocH]

Hi Bill,

 

Yes, it's what makes the whole thing such a lottery.

 

I think you may find that discontinued used in the context of the CPR also covers claims that are struck out, as it is discontinued in that respect, as opposed to a Notice of Discontinuance being issued, but not being an expert I may be wrong.

 

Kind regards

 

DocH

[Bill Shidding]

Hi DocH,

 

I hereby proclaim this thread *Struck out* until such time that the claimant gets their head out of their a$$.

 

By Consent of the parties

 

 

Bill

[DocH]

I endorse said proclamation.

[Helpmeoutplease]

I got a letter from the DCA today which states:

 

 

Dear Mr*******

 

 

RE: CL Finance LTD and Yourself - Balance £****.**

 

 

Northampton - 8XXXXXXX89

 

 

it is with concern that we note you have not made payment of this debt as arranged.

 

 

Further delay cannot be tolerated and you should note that if a remittance is not received at this office BY RETURN OF POST our instructions are to apply to the Court for Judgement to be entered against you. If this course of action is necessary further costs will be incurred which you will be responsible.

These costs will be added to the judgement debt.

 

 

We trust that the above mentioned action will not be necessary but should we no receive payment no further notice will be given.

 

 

If you wish to discuss this matter please telephone 0870 751 3281

 

 

Yours faithfully

 

 

Howard Cohen & Co

 

 

Any thoughts?

[Bill Shidding]

Hi Helpmeoutplease, looks like they are trying to browbeat/worry you into making payments again, as you were before they tried to take you to court.

 

my defence was based on regular payments were being made

 

once the case was over I sent CL the account in dispute letter and stopped payments

 

However, they appear to have "overlooked" the fact that;

no CCA was produced when requested

 

And

 

IT IS ORDERED that

 

The claim is struck out.

 

Dated 13 March 2009

 

So, they are "forgetting" they tried to enforce the alleged debt. They are also "forgetting" that their claim was struck out. So, I find this a bit of wishful thinking;

our instructions are to apply to the Court for Judgement to be entered against you

 

Their "dead" claim needs to go before a Judge, before it could possibly become "live" again. You would get a notification of this beforehand. Of course they would also need an enforceable CCA + NOA, and a very good excuse.

 

I'm sure others will agree that this is a "fishing" trip.

I'm also sure that you already know what your options are.

 

Bill

[rory32]

You may wish to report their letter to the OFT, making a complaint under the Consumer Protection from Unfair Trading Regulations 2008.

[Helpmeoutplease]

do i inform them that I'm making a complaint to the OFT

[rory32]

do i inform them that I'm making a complaint to the OFT

It's always a good idea to inform them that you HAVE made a complaint to the OFT rather than you are going to. It tends to grab their attention a little more and suddenly they generally don't want to deal with you.