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

[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:(.

[Guest janensteve]

For Res Judicata to be binding, several factors must be met:

• identity in the thing at suit; Credit Agreement
  
• identity of the cause at suit; Default & Termination
  
• identity of the parties to the action; Creditor and Debtor
  
• identity in the designation of the parties involved; Creditor and Debtor
  
• whether the judgment was final; moot point
  
• whether the parties were given full and fair opportunity to be heard on the issue. i'd say so
  

[Guest janensteve]

TL,

 

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

[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.

[Guest janensteve]

TL

 

"the claimant discontinues its entire claim."

 

Form N279.

[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

[Guest janensteve]

ok, so we have a set aside, a defence, an unless order, a strike out.

 

Thats good enough for me

[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?

[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

[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.

[Clynite]

Thanks TLDebt,

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

Regards

Peter

[Guest janensteve]

good luck clynite.

[sillygirl1]

This is an excellent thread, I am following with great interest and cutting and pasting chunks to use in a letter to Cap1 who insist I still owe them money after being taken to court, they discontinued after I showed up and filed a further defence.... however their harrassment still contiues. I think I have them by the short and curlies and soon the alleged debt will be statute barred so they will be even more stuffed.

[Guest janensteve]

sillygirl1

 

they discontinued their claim, they can, with the premission of teh court under CPR 38.7 apply for leave to issue a new claim, see post 2nd bite of apple.

[sillygirl1]

Yes, but they only have 7 days to issue a new claim, and as the claim is based on substantially the same facts it seems to have little chance of succeeding, especially when cross referenced with the old claim.

 

I've been in deep discussion with Croydon County Court on the matter in the last few weeks, if a second claim is issued then a 'cease and desist' order may be added to the defence

 

'the defendant also requests that the Judge instruct the claimants to 'cease and desist' any further legal procedures against the defendant'

 

You can also add

 

'The defendant also requests taht the Judge instruct the claimants (and any agents they have employed) to remove ALL details of this alleged debt from the defendants credit record(s), including but not exclusive toExperian, Equifax and Call Credit files.'

[Guest janensteve]

if their claim becomes statute barred, a ceased and desist order is entirely appropriate, they will after all be harrasing you for a debt that is then statute barred. So it is important for you to have them by the short and curlys for contempt.

 

Until the matter is statute barred, you may want to consider the case of:-

 

Allen v London Borough of Lambeth [2008] EWCA Civ 966 (19 June 2008)

 

This case reocrds a defendant who became annoyed at the claim against him simply being restarted every time it was struck out. There seemed to be no finality even though the case against him was clearly fatally flawed as presented five times to the county court.

 

However the decision by the CA was that where a claim is brought repeatedly it has the potential to amount to harassment. The threat of that if the same flawed claim is restarted may bring the finality you require.

Edited August 1, 2009 by janensteve
ommission

[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

[supasnooper]

Yes, you would be correct to presume the case has been stayed.

 

For the case to proceed, Restons need to cough up the necessary court fees.

 

As an alternative, you could apply for the case to be struck out.

[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

[cashins]

They are correct when they say they are now required to send an annual statement for a loan.

 

David

[babegem]

following this with anticipation as something similar is happening to me, howeve no second claim yet. I am trying to get that stopped from occurring as the original was stuck out but just received an annual statement as above. The statement added court costs and interest to my struck out and disputed account.

[cashins]

The statement added court costs and interest to my struck out and disputed account.

 

Dispute that with them immediately - they lost and therefore have no cost order!!!!!

 

David

[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