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

[Toulose LeDebt]

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 July 21, 2009 by Toulose LeDebt

[Toulose LeDebt]

"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 July 26, 2009 by Toulose LeDebt

[Toulose LeDebt]

In my opinion the barrister pulled a bit of a fast one in your instance janeandsteve.

 

Had the claimant discontinued voluntarily then (obviously) no right of appeal exists against their own discontinuance.

With the claim being struck out for whatever reason then a judicial decision has been made ergo a right of appeal exists subject to amongst other criteria a very finite time limit.

 

The barrister has presented the case to the court as a new case yet strictly speaking it is actually an appeal against the original decision to strike out the old case and as such this appeal would presumably have been well out of time (and this assumes the case was perfect in every other respect so that no other grounds for refusal existed).

 

I would have argued against the barristers claim as being an out of time appeal, I'm sure this would have been heard far less sympathetically by the Judge than their offer to pay costs. Sorry:(.

[Toulose LeDebt]

TL,

 

In my case, the claimant had discontinued their claim after defence was filed. I did not apply to strike out the first claim.

 

That is my understanding. Now who struck the claim out, the claimant, the Judge or youself?

 

And did the claimant and yourself receive a notice from the Court along the lines of

 

1) It is ordered that the claim be struck out.

 

2) Either party may apply to have this order set aside, varied or stayed, but such an application must be made within 7 days of receipt of the order by the party so applying.

 

 

This would be standard procedure and IMO the barrister has abused the court process by sneaking in an appeal against strikeout out of time.

[Toulose LeDebt]

sorry guys have I got my wires crossed her....

 

So janeandsteve Your claim was not struck out but was discontinued. In that case ignore eveything I said relating to the barrister as they were quite entitled to make the application.

 

Clynite. Your case was struck out so in my opinion things are rather different. To me it's all down to the notice and the fact it was a Judge who made the decision.

 

I'd be inclined to file the following as a holding defence

 

 

 

The defendant avers that the cause of action in this claim is identical to the cause of action in an identical case brought by the claimant against the defendant in ****** County Court under case number XXXXXXX

 

The defendant avers that case number XXXXXXX was ultimately struck out as an abuse of process by the presiding Judge on **/**/****.

 

The defendant states that the claimant has admitted in writing that this is a re-presentation of the same claim made previously albeit with a revised amount claimed against the defendant.

 

The defendant avers that this claim is subject to Res Judicata.

 

The defendant avers that any attempt by the claimant to have this case heard by this Court is in law nothing more than an attempt at lodging an out of time appeal against the original decision of the Court under case number XXXXXX. All parties were served with a notice of the Courts judgment in that matter and given due leave and period in which to apply for this judgment to be varied, stayed or set aside and the claimant failed to make any such representation within the time period specified by the Court.

 

 

The defendant avers that for the reasons set out within this defence that this claim represents an abuse of the Court process.

 

 

 

And a draft application that the claim be struck out and a smallish wasted costs order be granted?

[Toulose LeDebt]

Good luck with this and please do keep us informed.

Might I suggest you revisit SurfaceAgents excellent piece on the topic on page 1 of this thread before putting pen to paper? It would be churlish not to enter anything which is available for you to plead as part of any defence, so if you approach the claimants POC and work through their claim against you pleading any available defence you might have to any points raised.