Hfc/Restons default judgement/co - struck out - now new claim!!

[DonkeyB]

Would love to hear more detail about the hearing. This has been a really tough time for you.

[Clynite]

Thanks CB and DB for looking in and showing support. I will keep you updated as events progress.

Regards clynite

[hammyhound]

Just subbing if I may.

 

Clynite you have really been through the mill with this one. I am sure I will be following suit with my case.

 

HH

[andydd]

Well boo hoo..I follow this right to the end and no outcome, anyone know the result ?

 

Im involved in a similar claim involving strike outs and re-litigation.

 

Andy

[citizenB]

I believe OP lost and quite horribly.

[andydd]

I believe OP lost and quite horribly.

 

That is horrible, I dont understand that at all.. The original claim was definatley struck out..very odd.

 

Ive posted a similar question here > http://www.consumeractiongroup.co.uk/forum/showthread.php?339445-Re-litigation-of-old-claim&p=3731563#post3731563 but mine isnt quite as complex plus I have the benefit that the claimant did appeal and ask case be re-instated, this too was refused.

 

Andy

[citizenB]

Thanks for updating,clynite x

[Clynite]

Big hello to CB,

 

Its been such a relief not spending hours and hours on this subject albeit I did not get the result I had hoped for.

 

But, I have been mindful of the need to 'close' this thread, to inform and help others. When I get the LO recommendations etc, I will do my best to conclude this saga.

 

Hope you are well

 

Kind regards

[texanbar]

Big hugs Clynite. Feel for you, similar case with me: discontinuance and strike out but now natwest have issued 3rd claim against hubby.

 

Best wishes

Tex

[andydd]

Thanks Clynite.

 

It appears to me you did everythjing correctly but through some strange twists and turns youve landed with anhuge bill, the justice system seem so wrong and unfair at times (especially in terms of costs).

 

As you can see Ive posted a link to my similar thread above, where I'm about to post more details.

 

I recently sued my landl;ord for damages for breach of repairing covenant because this too was on the fast track, I risked being liable to a huge bill about the same as yours, (it was over £5000 in the very early stages), I did have some legal advice from a solicitor but I wasnt that happy with it, (one of the main factors being I hadnt informed the landlord of repairs that needed doing, but the solicitor seemed oblivious to the fact that notice is not needed if its the landlords property, not mine, claim related to a driveway).

 

Anyway result was I amended my rather messy original statement of case and they then offered to settle, a smallish amount but like you I was glad it was over, (although my result was happier).

 

Keep us posted and feel free to add to my thread on similar issue.

 

Andy

[dalifnei]

Have just come across this thread and wish I had read it sooner. In Scotland (where I am a practicing solicitor) there are 2 kinds of decrees and I imagine it is the same south of the border. Here when a claim is dismissed - eg for a default (failing to follow procedure) - the claim has not been decided, just dismissed. Therefore it can be raised again as it was struck out for a default. There is no bar to this.

 

However where a matter has been decided (eg after hearing evidence) then res judicata applies - this means that a particular matter has been decided.

 

Res judicata is not quite as simple as it sounds and there is lots more to it.

[andydd]

Interesting. But surely the bar to issuing the claim again is that it is an abuse of process ?

In my case, my landlord started a claim for service charge arrears, didnt pay fee, was given unless order, fee still not paid so struck out.

He then applied for set aside this too was also struck out.

He has now started exact claim again, Im thinking this is abuse of process as the original orders are still in effect and the CORRECT process would of been to appeal the last order, simply re-issuing the claim again is surely an abuse of process ?

When a claim is discontinued its clear that the same claim cant be issued again UNLESS he asks for courts permission, however its unclear what happens if claim is struck out ?

Andy

[AndyOrch]

Res judicata refers to a decision in English law which has been decided once and for all by a judicial tribunal, such that the decision may only be challenged on appeal by another judicial tribunal higher in the court hierarchy. For example, a decision made at first instance by a High Court judge at a hearing may only be challenged by appealing to the Court of Appeal, and then to the House of Lords. Other than this procedure through the court hierarchy, the subject matter of the decision may not be relitigated by the parties at a later date.

The principle prevents the same claim from being raised again between the parties to the litigation (for example, the claimant raising the same claim for recovery or damages or other relief) or calling into question the correctness of the earlier decision (for example, where the defendant argues that a damages award is excessive). The principle applies to matters of fact and law, and mixed questions of fact and law. When a judgment is entered in respect to the facts, the cause of action and legal rights of the parties are extinguished and said to 'merge in the judgment'. The correctness of the decision is irrelevant, other than on appeal. A final decision must be appealed in order to be set aside the judgment or have it varied.

As such, the judgment operates as an estoppel to further litigation and extinguishes the legal rights that gave rise to the litigation in the first place.

Thus, the key features of this form of estoppel are that:

1. it prevents a party from denying in later litigation the correctness of the decision in the previous litigation; and
   
2. the cause of action merges in the judgment such that the cause of action is extinguished.
   

Res judicata should be distinguished from estoppel by record. When a matter is caught by the doctrine, it is the res judicata that estops further litigation, and not the fact that a record was made of the decision.

 

Making out the Defence

The party seeking to rely on it in subsequent litigation must show that the previous decision was:

1. a judicial decision;
   
2. made by a tribunal having jurisdiction over the parties;
   
3. final and conclusive;
   
4. made on the merits of the case; and
   
5. covered the same question as it raises in the later litigation.
   

Furthermore, the decision parties to the later decision must have been parties (or privies) to the earlier decision where the decision was made in personam or show that the decision was made in rem. It is the record of the decision that is conclusive of what was adjudicated during the previous litigation.

There are two types, each with the same effect: issue estoppel and cause of action estoppel. Cause of action estoppel prevents a party asserting the existence of a particular cause of action, as the particular cause of action has previously been determined. Issue estoppel applies where some fundamental issue forms part of the issues determined in earlier proceedings.

A decision for the purposes of res judicata may be a decree, order, judgment or sentence. What matters is that the decision is a judicial decision as opposed to an administrative decision.

The Practical Effect

 

Res judicata is the reason why judicial decisions are different to almost any other type or kind of decision. A judicial decision is final and conclusive of the rights between the parties to litigation – it marks the termination of disputes of the litigation, subject to an appeal. Consequently litigants are not exposed to a multiplicity of proceedings on the same facts.

There are limited exceptions, such as in running down cases, the application to revenue authorities and divorce proceedings, particularly in cases involving misconduct.

 

Usage: The previous decision was res judicata in the instant case and thus there was no case to answer by the defendant.

 

Regards

 

Andy

[AndyOrch]

Strike out is the deletion of written material from a statement of case so that it cannot be relied on in proceedings by any party. Strike out applications are a powerful tool used by parties and the court for the disposal of cases. Strike out subverts litigation and saves costs.

The court has the power to strike out a statement of case (or part of a case):

• Under its case management powers (CPR 3.4) and under its inherent jurisdiction; or
  
• Pursuant to an application by a party; or
  
• Of its own motion (CPR 3.3 )
  

The power to strike out can be used if a statement of case (or part of one):

• Discloses no reasonable grounds for bringing or defending the claim (PD 3A paragraph 1.4 and PD 3A paragraph 1.6).
  
• 
  
• Is an abuse of the Court’s process, that is, "using that process for a purpose or in a way significantly different from its ordinary and proper use" (CPR 3.4(2)(b)).
  
• Is otherwise likely to obstruct the just disposal of the proceedings, that is, if the claim is vexatious, scurrilous or obviously ill founded (CPR 3.4(2)(b), PD 3A paragraph 1.5).
  
• 
  
• There has been a failure to comply with a rule, practice direction or court order. The failure must be one to render a fair trial impossible.
  

Andy

[sillygirl1]

All you do is cross refer it to the previous case in a very short defence

 

On xxx date xxx person, being the same person issued the same claim (put the claim details here, including court). This case was discontinued and struck out, therefore this is a clear abuse of court processes. The claimaint's vexatious and litigatious claim has no merit (having been previously dealt with by the courts) and needs to be marked as such.

 

That is all it should take, you don't need to go into legalese on this one.

[andydd]

Thanks Andy, although your posts did kinda just copy and paste the official definition of res judicata which I am already aware of but not 100% sure of its application in the real world ! For example does res juicata apply to discontinued claims, struck out claims, struck out claims due to negligence (i,.e didnt pay fee or didnt turn up), or only claims that have gone the whole hog and been heard and ruled upon by a judge ?

 

Silly Girl..

 

Well..thats what Ive done in my defence, so hopefully the judge will throw it out, it will hopefully be the same judge so she should be aware of it, (she remembered me and the landlord last time !), Ive prepared a proper Summary Judgement application just in case I need to actually apply, this goes into more detail.

 

Andy

[AndyOrch]

Well thats the official interpretation of Res Judicata Andy saves me typing the whole thing out.Your problem is defining whether a strike out is a judgment or deemed.

Res judicata will apply to anything thats been a judged unless its an appeal after judgment.

 

If you take a look at the last definition/application of a Strike Out " There has been a failure to comply with a rule, practice direction or court order. The failure must be one to render a fair trial impossible" or any of the other 3 points a decision as been made by the DJ.That to me states its been a judged.The only way I see to clarify this grey area is when making application to SO any claim or statement of case, that you must request Judgment in your favor and the DJ confirms same in the final Order issued.End of you, then have judgment and the claim as been a judged.

 

Regards

 

Andy

[andydd]

Jumped back into this as my Summary Judgement application is coming up.

 

A question I want to ask, following andyorch's coments above above final judgement, in my scenario, I started a claim which I won, (Final judgement say defendant must pay me £xx), the re-litigation part is the defendants counterclaim against me, no mention of this on final judgement/order sheet as it had already been struck out (for non payment of fees).

 

Defendant appealed counterclaim strike out this too was struck out.

 

Not 100% sure if Res Judicata applies.

 

Andy

[Clynite]

Hello all

 

I have at last received the Legal Ombudsman recommendation re my complaint against my Solicitor. I quote the following: " I intend to recommend to the Ombudsman that the firm's service has been reasonable and a remedy is not required".

 

The LO have not recognised any of the failings that I submitted to them. That Im afraid, is life! Time to move on and conclude this thread.

 

I am most greatful for all the help and support I have experienced since joining this forum. I would like to thank everyone who has contributed, in particular citizenB and foolishgirl, who have devoted an enormous amount of time and effort to help me:-) Their committment has been inspirational.

 

The LO have stated that I am able to disagree with their recommendation, and have an Ombudsman look at my reasons for disagreement. It would then be looked at again and a further decision made, that would be final. I dont see much point going down this route as it would only delay the inevitable.

 

One interesting point made in the LO's report, re the 'strike out issue / res judicata ',

 

Quote: " The appeal was dismissed because the Judge felt there was no abuse of process and so the case should be heard at trial. The Judge said if the claim was struck out, this would allow 'me' to retain the money that he had borrowed from the bank without repaying it."

 

The overiding factor was not the res judicata argument, but the fact that I would be allowed to get one over on the bank.

 

To summarise; case lost and not much support from LO. But, a wealth of inspiration from the forum and its members.

 

Thank you all clynite

[citizenB]

Oh no, I am so sorry to hear this. A very unfair decision IMHO.

 

[foolishgirl]

Hi Clynite

 

Firstly, thanks to CB for pointing me to your post as I am not able to look in on CAG as regularly as I did some time ago.

 

Sincere commiserations on the LO's decision. You seem to have had a raw deal on this one from the very beginning. Sadly, 'justice' does not always seem so & a good deal of common sense & fairness would seem to be more appropriate to apply to cases like yours. However IMO you are extremely sensible to leave the worry & stress behind you now & get on with life.

 

Your post seems to honestly & succinctly sum up the moral in this sad story & I do hope that others reading your thread will digest & learn - solicitors are not infallible & be sure you know exactly what you are getting into before you sign a no win, no fee deal.

 

EDIT

 

 

 

Good luck & best wishes, Cynite ......

 

FG

Edited May 1, 2012 by alanfromderby

[Clynite]

I dont understand why FG's response has been edited. Can someone please explain why this has happened.

 

Thanks clynite

[Clynite]

Do I need to start a new thread, or continue with this one?

Just received notification from my ex solicitor on this case. He is asking me to set up direct debit for repayments re counsel fees. Also asked if I`d agree to a charge order on my property. Need some help in closing this matter once and for all.

[citizenB]

Do I need to start a new thread, or continue with this one?

Just received notification from my ex solicitor on this case. He is asking me to set up direct debit for repayments re counsel fees. Also asked if I`d agree to a charge order on my property. Need some help in closing this matter once and for all.

 

I see no reason why you cant continue with this thread, Clynite.. I will try and find some help for you