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

[Clynite]

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 July 26, 2009 by Clynite

[Clynite]

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!

[Clynite]

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

Edited July 26, 2009 by Clynite

[Clynite]

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:)

[Clynite]

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

[Clynite]

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

[Clynite]

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

[Clynite]

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

[Clynite]

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 ?

 

My apologies, I think I may have confused the issue. I will attempt to clarify.

I have just checked original court documents and am able to provide the following info:

On 24 June 2005, I was instructed to serve on the claimant a draft of defence I would propose relying upon in the event of the judgement herin being set aside. This had to served by 6 July 2005. I complied with this instruction. Case adjourned to 10 August 2005

On 10 August 2005, Not a lot happened at court as I recall. Claimants solicitors (representative) were instructed to serve a response to my draft defence by 24 September 2005. Interim charging order to continue in the meantime, my costs of todays hearing to be re-served to the next hearing or final order. Case adjourned to 5 October 2005.

Prior to the next hearing. Restons solictors wrote to the court 29 September 2005, stating that they had been instructed not to continue with the application for a charging order and would be obliged if the application could be dismissed.

On 5 October 2005, Solicitors failed to turn up. The charging order was dismissed, the original default judgement dated March 2005 be set aside, all further proceedings upon the claimants claim be stayed with liberty to both parties to apply providing that if no application is made by the claimant before 6 January 2006 the claim be struck out.

On 10 January 2006, court ordered that, as per order dated 5 October 2005 the Claim be struck out.

Hope this helps, sorry for any confusion.

Peter

[Clynite]

"Toulouse LeDebt"

Many thanks for your explanation and suggested defense. I appreciate your effort and support. I will keep you and the forum informed of progress and outcome. Thank heaven for this forum!

Peter

[Clynite]

Thanks TLDebt,

Just found SurfaceAgents Piece, will read and digest and act accordingly!

Regards

Peter

[Clynite]

janensteve

 

Many thanks for your support, Il keep you posted on progress.

[Clynite]

Hello everyone,

I dont have an official update to this thread, but would appreciate advice on present situation.

On 13 July 2009, I received confirmation from Northampton County Court of receipt of my defence in relation to this case. The Court also stated that, the claimant/solicitor must contact the court within 28 days of receipt of my defence in order to proceed with their claim. After that date the claim would be stayed.

I have not heard from the Court or claimant/solicitor.

Given the time that has elapsed, is it wise to assume the claim has been stayed, and therefore not active, or is it still possible it may proceed?

Thanks in anticipation

Peter

[Clynite]

Thanks for your advice Supasnooper,

as always, greatful for the help.

Peter

[Clynite]

Just received correspondence from HFC Bank, in the form of an annual statement of my account. They state that: HFC bank is required to send you this Annual Loan Statement consistent with the legislation under the Concumer Credit Act 2006.For information your account is currently being collected by Restons Solicitors. Period covered 1st Oct 2008 - 9 Sept 2009. Balance £7355.84

Can anyone tell me if this is standard procedure. This account relates to the original claim that was struck out in my favour, as expressed throughout this thread. Date of original agreement was 18 July 2003. It was originally provided with PPI, but this statement states that it wasn't.

Should I ignore/act on this correspondence.

Thanks Peter

[Clynite]

Hello everyone.

I have received today 8/10/09, the following from Northampton County Court:

1. Notice of transfer of proceedings ( a defence to this claim has been filed ).

2.An allocation questionnaire N150. Must be completed by 24/10/2009.

 

I believed the claim had been stayed as, Restons/HFC had not proceeded with original, by the time scale set by the court. I assume the defence mentioned above, is mine, that was in anticipation of the claim progressing.

 

The allocation questionnaire is full of Court terms that I am not familiar with ie Settlement, location of trial, pre action protocols,Case management, Track etc.

 

Could this request be a mistake, or have I to complete this form and return it to my local Court as requested?

 

Thanks Peter

[Clynite]

Hello TLD

Since your last correspondence, an update:

Restons failed to proceed within the 28 days so case was stayed. I had hoped this was the end of the matter. But, received 8/10/09 Allocation Quiestionannaire (AO)for the case to proceed at my local County Court. I rang Northampton CC to clarify. They informed me that the stay had been lifted by the claimant and had been transferred to local CC. I have received no correspondence from Restons/HFC in relation to this matter.

The AO implies that I have to demonstrate that I have tried to resolve this prior to Court etc. I am at a loss, because of the nature of this case. The form cites Settlement, Location of trial, Pre-action protocols, Case management, Experts, TrackTrial or final hearing, Proposed directions, Cost, Fees and Other information.

Would you confirm that I can use your suggested defence cited on 31/7/2009 verbatim and if so, at what stage. I would be grateful for any help or advice.

Citizens Advice or National Debt Helpline have been unable to offer any help or guidance, only to advise me to seek specialist help - outside of their domain. I have attempted to obtain a solicitors help, but am not entitled to legal aid? I am unemployed and not in receipt of any state benefits because my Job Seekers allowance ran out in June 2009 following the six month entitlement. Because of the equity in my home I am not entitled to any legal help albeit I have no source of income. Further, because my wife works part time and her earnings take us just above the threshold for any help. We are struggling to say the least. I dont mention these facts for sympathy, I just want to highlight the fact that this forum and contributors are a real lifeline for people like myself. I have to return AO by 24/10/09

Many thanks for your support and time,

Peter

[Clynite]

Thanks Craftygirl42,

I will follow your advice.

Peter

[Clynite]

Hello GhostDebt,

I have read previous threads related to theAO/N150 and have found the AQ /N150 a little confusing because, I am not disputing Restons/ HFC claim. As far as I am concerned the case has already been dealt with and was Struck Out 10/01/2006. Restons are implying this is a new claim.I want to inform the Court that the impending proceedings are an abuse of Court process as, the matter has already been dealt with. But it appears that the track is determined by the amount being claimed. That being the case, I will be forced to follow the fast track. I do not have the funds to pay the Court Fees and hope my circumstances will offer exemption. That being said, I intend to complete the N150 in the following manner - please correct me if I am wrong.

Settlement

I cant settle before hearing as Restons are hell bent on pursuing this previously struck out case. So, I intend to answer 'NO' and possibly cite the aforementioned reasons in the 'Reason' box.

Location of Trial

I intend to answer 'Yes' - because previous case heard at this court.

Pre-action Protocols

I intend to answer 'No' Reason - Restons actions prevent this

Case Management

This is where I am confused- amount of claim in dispute.

I dont believe there is an amount to dispute as case has already been dealt with. But, Restons state £6863.17 as of 18/01/2008, HFC say £7355.84 as of 01/10/2008. In any case, this means I should follow the Fast Track.

I intend inserting N/A in amount box, Applications 'No' and Witnesses me the defendant.

Experts

I intend marking all boxes 'No'.

Track

I am inclined to choose 'Small claims track'. Reasons being, the case is straight forward and is an abuse of Court Process by the Claimant, and can be resolved very quickly.

Trail or Final Hearing

Time estimate - '30 minutes'

Days when unable to attend Court - 'No'

Proposed Directions

Im unsure what I can attach, but for now I think answer 'No'.

Costs

I intend inserting N/A.

Fee

I intend to select'No'

Other Information

Have you attached documents to this questionnaire? - 'Yes'

Have you sent these documents to the other party?-'Yes'

When did they receive them? - 'N/K'

Do you intend to make any applications in the immediate future? - 'Yes' possibly a 'Strike Out' application. Hopefully someone can advise.

In the additional information box, I thought I could cite the previous case details and my belief that this is an abuse of Court Process and hopefully this would assist the Judge with the management of this claim. Could I request that the case be considered for a 'Strike Out' in this section or will I have to apply via a N244 form. Or would it be necessary. Is it possible the Judge could reolve this issue at this assessment stage, given the facts of the previous case?

Sorry for the long post, but its the only way I can express my intentions. Would anyone able to offer direction or remedial help, please advise. In anticipation, many thanks Peter.

[Clynite]

Do you have all the paperwork from the original trial and also the final order from the court where the case was struck out ?

 

Apart from the figures involved, what difference is there between the two POCs.

 

Will this be heard in the same court as previously ?

 

I will see if I can attract some attention from the site team for you.

 

Yes to the first two questions, the POC's are essentially the same. This new claim is the same as the original one that was Struck Out. The case will be heard in the same Court.

 

Hope this helps Peter

Edited October 11, 2009 by Clynite

[Clynite]

Hello and thanks citizenB,

Yes, the AQ needs to be filed by 24/10/2009.

Dont know if Restons have had permission to reinstate claim, but spoke to Northampton CC, who informed me that they had applied to have the stay lifted and that the case was now transferred to my local CC. thats the only information I could obtain.

Was the claim struck out under CPR 3.4? - I dont really know or understand enough to give a definitive answer. The original Judge, stated on the N24 that, 'All further proceedings upon the Claimants claim be stayed with liberty to both parties to apply provided that if no application is made by the Claimant before 6 January 2006 the claim be struck out.' That was dated 5 October 2005. On the 10 January 2006 I received a new N24 from the court stating the following:'As per order dated 5 October 2005 the Claim be struck out.'

Quote:

"I would be making an application to strike this claim out on the basis that Restons have been struck out previously and are bringing a claim on the same basis, without the permission of the Court. In fact, I'd include in that application a request for an Extended Civil Restraint order, to prevent Reston's bringing more claims after this one. (CPR PD 3.1) "

At what stage do I make these applications, and how please? Do they accompany the AQ or are they submitted later?

Thanks Peter

[Clynite]

Hello citizenB, many thanks for your/site team continued support.

The case has been allocated to my local Court, as was the original claim.

I am slowly digesting your advice and hope that we can meet the deadline for the AQ and any other additional information you feel necessary for me to supply the Court. I've tried uploading copies of the original judgements, but failed. I thought it might be better for you to see the actual documents. Instead, I have quoted verbatim the main 'IT IS ORDERED THAT' details in case it sheds more light on things:

 

First Judgement N24

 

1.The Claimants application for a charging order is dismissed and the charge created by the interim charging order dated ***** is discharged and the entry of the charge at H M Land Registry under title number ***** be vacated.

 

2. The default judgement dated 16 March 2005 be set aside.

 

3. All further proceedings upon the Claimants claim be stayed with liberty to both parties to apply provided that if no application is made by the Claimant before 6 January 2006 the claim be struck out.

 

Dated 5 October 2005

 

Second Judgement N24

 

1.As per order dated 5 October 2005 the Claim be struck out.

 

Dated 10 January 2006

 

There were other previous Judgements that led to the last two, But the above ones are the important ones. If you require any further info please let me know.

 

I'l check back tomorrow to follow up on any further developments.

 

Regards Peter

[Clynite]

Hello citizenB,

Just thought a little more detail may help your assessment of the facts. Im a bit jumbled to say the least, but it could be important.

The original judgement was entered in my absence ie I was away from the matrimonial home and never received the original Court papers. Restons then forged ahead and harassesd my wife and family. They obtained a charge order on my home, for an alleged unsecured loan - this is what this whole affair relates too. When I eventually got to discuss the case in court, the case was well and truly underway. I convinced the Judge that I should have the opportunity to defend myself and offer evidence in mitigation of Restons claims etc. As things progressed, I quickly gathered that the judge was none to happy with the way Restons were behaving, and at a particular point in the proceedings, he agreed to let me serve a defence.I had to submit my defence by July 2005.This was completed as required by the courts instructions. My defence was to be served on Restons. Also, the claimant/Restons shall within 14 days file and serve a response thereto, if so desired.The next hearing was in August 2005.

During August's hearing, Restons/claimant were ordered to file and serve a response to my defence by September 2005, next hearing was as described in previous post, on 5 Oct 2005. It was this hearing that Restons failed to turn up at or react to my defence, and the Judge made his Judgement/ Order for set aside/stay and the following stike out. I gather the Judge gave Restons every opportnity to appear and continue with their claim, but they declined.

All that said, It is why I asked the original question that started this thread. Can they make a new claim after original has been struck out?

Thanks for hanging in there with me, catch up with you tomorrow.

Thanks Peter

[Clynite]

Many thanks for your input Andy. It appears an excellent piece. I hope everyone will read it and help me decide best course of action.

Many thanks for your help.

Peter

[Clynite]

Hello citizenB, many thanks for update and new advice / info.

 

quote 'Hi Peter, thanks for the extra information. I think the main question here is.. have they applied to the court to bring this new claim if it is based on the same facts as previously. IMHO, the facts have not changed in anyway.'

 

In answer to the above quote; Restons are pursuing exaclty the same claim that was previously struck out. Even the balance is exaclty the same as previous case, albeit less costs. Nothing has changed other than them writing to me requesting settlement of the balance to the account, citing 'I previously admitted liability via a solicitor'. This was one of my defence points in the previous case, whereby I relieved solicitor of their responsibilities to me and continued to defend myself. The Court and Restons were informed and my actions were accepted by the Court. I just believed Restons were trying to unerve me with this ploy. I ignored their letter. Some time later Restons applied to Northampton CC to raise the claim again. This is where it all began.

 

regards Peter