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Clynite

Claim struck out - can creditor make new claim? - Well they have issued new claim.

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Hello everyone, Im new to this forum and would appreciate any help, guidance or information on my predicament.

Hfc Bank via Restons solicitors took me to Court from March 2005 - January 2006. A default judgement was granted March 2005 for the sum of £6863 with charges etc total was £11684 plus a charge order on my property.

I successfully got the judgement set aside for me to submit a defence.

Restons were either not turning up or making administative errors throughout this period. I have no legal knowledge but defended the claim on contract law and the banking code. I was suffering with mental health problems when the loan was granted ( they even provided me with sickness cover insurance albeit I was a long term sick patient. I informed the courts that I was unable to enter into contract, undue influence, misrepresentation etc. I obtained medical reports to confirm this. Restons agreed sickness insurance was invalid.

In October 2005 ( Restons didnt turn up ) the Judge dismissed the charge order and set aside the judgement giving the claimant until January to take further action. On 10 January 2006 the Judge struck the claim out. His comments to me where " these people should crawl back under the stone from where they came". I thought that was the end of the matter.

Some months ago I received a letter from Restons - to the effect - that as I had admitted previous liability and as a result of previous objections raised by me with regard to the previous demand for £11684, they now demand a reduced payment of £6863. I ignored this letter.

On 10 July 2009 I receive a claim from Northampton Count Court Bulk Centre claiming £6863.

I have informed Northampton County Court that I will defend this claim in the same manner as the previous one that was struck out.

Can anyone tell me if the "struck out" claim can be renewed in this manner.

Thanks in anticipation. I live in Wales.

Edited by Clynite

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I believe it can (but not 100% sure) but the judge will not look favourably at them if it was struck out once already

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PGH7447

 

 

Getting There Slowly

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Many thanks for your input. I have been thinking the same, but have little knowledge of this process. Only found this forum last night. Appears to provide honest debate!

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you will certainly get all the help you need here, no doubt someone will come along in a minute who can actually answer your question

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Since the claim is for the same amount as before and the earlier proceedings were dealt with by a Court then the doctrine of estoppal known as RES JUDICATA applies and this action should be deemed an abuse of Court process. I'm not familiar with estoppel but somebody should be able to elaborate for you.

 

This form of abuse of process has in recent years been taken to be that described by Sir James Wigram V.-C. in Henderson v Henderson (1843) 3 Hare 100 at 114 where he said:

 

"In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."

 

 

Basically unless the claimant has substantial new evidence which can be proven not to have been available to them at the time (and just failing to obtain paperwork etc does not meet due diligence), then the claimant should be struck out as an abuse of Court process.

 

A simple defence stating res judicata applies and the court number of the previous case should (but check with others first) suffice to see them back under their rock.

Edited by Toulose LeDebt
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Many thanks for that information. It certainly puts things in a new light. I will definately follow your advice! Thanks once again.

Edited by Clynite

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Can anyone else on the forum, confirm or elaborate on the excellent response I received from "Toulose LeDebt " on 21/07/2009. This post advised that the doctrine of estoppel known as RES JUDICATA could apply.

Many thanks:)

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It May Be A Good Move If The Op Agreeds, We Should Move This To The Legal Forum,

 

 

Also You Have Beed Given Excellent Advice Todate


Id quot circumiret, circumveniat.

 

please do not take my word for anything please do your own research All that i make comments on are done in good faith and to the best of my knowledge

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Can anyone else on the forum, confirm or elaborate on the excellent response I received from "Toulose LeDebt " on 21/07/2009.

 

Cannot elaborate but I believe that to be the case.

 

In effect this tawdry little firm are trying for a rerun of the case they lost before.

 

David

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Hello and thankyou to Lillywhite and cashins, for your responses.

I would be more than happy to move the issue to the Legal Forum, if it would benefit the discussion or help inform other members of the situation.

Thanks for your prompt replies.

Peter

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Have moved this to the legal issues forum as a claim has been issued against you.

 

I will also amend the title a bit to reflect claim issued.

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have they issue the same claim as before if so they must have made a mistake.


Id quot circumiret, circumveniat.

 

please do not take my word for anything please do your own research All that i make comments on are done in good faith and to the best of my knowledge

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Below are a couple of posts re the re issuing of claims.

 

I cant remember who posted this one.

"As to your other query, I retired from practice several years ago, so

I have not kept pace with court procedure, but if the CPR have not

changed on this point the position is that discontinuance is not a

determination on the merits and therefore does not preclude a fresh

claim, but if an action is discontinued after service of a defence

then the claimant requires the permission of the court to bring a fresh action."

This by andyorch

 

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.

 

I trust the above is of help

 

Regards

 

Andy

This one by surfaceagentx20

Here's my take on the situation.

 

The poor critters evidently have yet to hear about something called res judicata, which encompasses issue estoppel, cause of action estoppel and merger. I'll explain all this in a minute.

 

In any case, by an order of the court, a claim between the same parties over subject matter which I understand is similar or identical to the subject matter of the recently issued proceedings, was struck out by order of the court. That order was evidently, not appealed and therfore remains the order of the court in relation to the issue.

 

The basis of the doctrine as it applies to issue or cause of action estoppel involves the policy which favours the benefit of finality, the sanctity of decisions of the court and the avoidance of the risk that courts may issue contradictory decisions. It was neatly set out in the speech of Lord Goff in Republic of India v India Steamship Co Limited [1993] where he said:

 

“…the cause of action, having become merged in the judgement, ceases to exist, as it is expressed in the Latin maxim transit in rem judicatem…”

 

Here lies the distinction between the availability of a second action where the Claimant falls on his sword by discontinuing his claim (and where the claimant wishing to bring a second action satsfies certain conditions) and an order for strike out. The former will involve no judicial decision on the merits whereas the latter often will. I'll deal with the situation where it doesn't shortly. Evidently, the Judge who struck out the first claim decided either there was no merit in the claim, or prospect of success or possibly, that owing to contumelious disobedience of one or more orders of the court, the claimant was undeserving of having the claim progress to trial.

 

It will be necessary to be satisfied that the first and second claims represent litigation over the same subject matter and for the purpose it will be necessary to see the Particulars of Claim of both first and second proceedings. Assuming the second claim mirrors the first, the proper thing to do is to submit a Defence pleading all that may be available by way of defence (there may be an issue over the default notice I gather) plus a plea of res judicata and that the cause of action now relied upon merged with the order striking out the claim which was not appealed and remains the decision of the court on the set of facts forming the second claim.

 

Having served the defence I would then be inclined to make an application under CPR 24 for summary judgment on the basis the Claimant has no reasonable prospect of success owing to issue and cause of action estoppel etc.

 

As fpr any contention from the Claimant that the decision to strike out did not involve a decision on the merits, I would maintain the court has the power to strike out the second action as an abuse of process under CPR 3.4 (mentioned in CPR 24) where unmeritorious proceedings are begun such as this second action. The basis underlying the abuse is that if for example, the first case was dismissed for failure to produce documents in obedience to an order of the court (implying the possibility the decision was not based upon the existence of merit in the claim itself) and the Claimant is now in possession of those documents which it would wish to employ in the second claim, so called 'extended' res judicata principles will apply in the sense that with due dilligence, the claimants would not have begun the first proceedings without first having possession of those documents and with due dilligence, the first set of proceedings were sufficiently available for the Claimant to litigate the issues.

Hope this helps


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have they issue the same claim as before if so they must have made a mistake.

 

Yes. Original claim was for £11684.03. This was made up of payment arrears, interest, solicitors costs and court costs,etc, as best I understand. The recent new claim is for £6863.17, this represents the original outstanding balance. Restons solicitors have informed me of the following:

"Our client, in reviewing the account, has revised the claim amount to the sum of £6863.17, having taken into account previous objections raised by you with regard to the previous demand for £11684.03.

Please may we have your proposals for payment of the revised sum of £6863.17 within 7 days, by completion and return of the enclosed financial statement."

I ignored their demand and the Court claim arrived via Northampton County Court as previously explained.

Peter

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One of the site team, supersnoops) has suggested the following might be of use to you.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2302013.html


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ok what are the poc


Id quot circumiret, circumveniat.

 

please do not take my word for anything please do your own research All that i make comments on are done in good faith and to the best of my knowledge

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They will have difficulty getting permission of the court read a dodgy default notice thread


You may receive different advice to your query as people have different experiences and opinions. Please use your own judgement in deciding whose advice to take.

 

If in doubt seek advice from a qualified insured professional. Any advice I have offered you is done so on an informal basis, without prejudice or liability.

 

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"Our client, in reviewing the account, has revised the claim amount to the sum of

 

 

So it clearly is not a different claim but a revision/representation of the earlier. (I'd have a copy of that in the Court bundle).

Edited by Toulose LeDebt

You have the right to food money.

If you don't mind a little investigation, humiliation, and if you cross your fingers rehabilitation..............

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So it clearly is not a different claim but a revision/representation of the earlier.

 

And I cannot see why that could affect the original grounds for the strike out. They messed the court around, didn't show up (again) on the last occassion and even when the judge gave them 2 months to come up with the goods, didn't do it. So they want another try 3 1/2 years later?

 

David

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they will struggle with that, they should ensure that they commence proceedings for the correct amount first time, they are not allowed to faff around and bugger about til they get it right as that is not in the Spirit of the CPR for starters

 

if you have a second claim then i would possibly consider having it struck out by application (N244) as a complete abuse of the process

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So it clearly is not a different claim but a revision/representation of the earlier. (I'd have a copy of that in the Court bundle).

Many thanks to all contributers, If I understand correctly, I will just have to state in the defence section of the court claim "res judicata" applies, previous court case number and a copy of the solictors letter as per quote.

The original court case defence submission was very lenghty and I dont think I could collate all that information again. If I can cite the above defence, that would be a great weight off my mind.

A confirmation letter from Northampton CC in respect of my response, stated that if claimant does not respond within 28 days then the Court can stay their claim and they would then have to apply to the courts to effect any further action. I understand, if the claim continues, it would be transferred to the original County Court, where the original case papers are held.

Thanks

Peter

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That is my understanding, Clynite.:)

 

Thanks for the rep:D


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1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

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Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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Guest janensteve

If the claimant agrees to pay the costs of the previous claim, they have put you in the same position as you were prior to commencing the first claim. All they have to do is correct their paperwork and off they go.

 

CPR 38.7 refers to cases where the claim is discontinued after a defence has been filed.

 

If you contend that you filed a defence, and that the claimant failed to subsequently respond to the court and that you requeted that their claim be struck out because of repeated contempt of court, then that may mean that CPR 38.7 could apply.

 

I have to say that the OP was represented by a Barrister in my case and argued that my costs would be paid and that there was no prejudice because i had effectively been given more time to pay.

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If the claimant agrees to pay the costs of the previous claim, they have put you in the same position as you were prior to commencing the first claim. All they have to do is correct their paperwork and off they go.

 

CPR 38.7 refers to cases where the claim is discontinued after a defence has been filed.

 

If you contend that you filed a defence, and that the claimant failed to subsequently respond to the court and that you requeted that their claim be struck out because of repeated contempt of court, then that may mean that CPR 38.7 could apply.

 

I have to say that the OP was represented by a Barrister in my case and argued that my costs would be paid and that there was no prejudice because i had effectively been given more time to pay.

 

Many thanks for your advice.

 

Hoping to clarify further; The original case was struck out by the Judge, not at my request. I had intended to defend the case but following the behaviour of the claimants solicitors, the Judge saw fit to strike the claim out. I didn't pay any costs etc.

 

In your opinion, would the "res judicata" defence, as has been suggested by other contributers, still apply?

 

Thanks Peter

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Guest janensteve

I always thought that res judicata relates to issues that have been litigated and adjudged upon. There was no adjudication of the claim, just a mere strike out of the claim.

 

Your current defence would perhaps relate to more a case of abuse or unjust harrasment.

 

Was it not the case that the order to set aside judgement included a requirement for you to file a defence, and if so, did you do that ?

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