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

[Clynite]

Hello Andy

 

I used your Document 'Striking out a statement of case', together with my AQ which was left at the Court Monday 19/10/2009. I dont know if I have acted correctly, but hope you can advise or offer expalnation on the following information:

I spoke to a court official Monday, explaining the case, as has been explained on this forum. I went through your document with her. Unfortunately, she had never seen or heard of its content. Nevertheless, she accepted what it said. I elaborated that the applicant/court official, should where possible, act on the information supplied and avert a court trial in respect of the claim if at all possible, I requested that the claim be Struck out before the AQ is acted upon. She suggested that I submit the AQ together with a statement of our conversation in respect of the 'abuse of court process' claim, made by me. She also informed me that a Judge would look at the information I had supplied (Tues), and they would get back to me when a decision had been made. Therefore, I left the AQ together with a statement of the facts surrounding this claim, also a defence based on Res Judicata in relation to the 'abuse of the court process'. I have not heard back from the court as yet.

But, interestingly, I have received a letter from Restons today 24/10/2009. They state the following:

 

Without Prejudice

We write to inform you that we have today filed our AQ at the Court and have indicated to the Court that you would like a stay of proceedings in order that attempts may be made to try and resolve this matter amicably.

( This is news to me!, I have made no such comments or direction)

We have considered the previous proceedings Claim no XXXXXX which, as you say, were discontinued on the basis of your Defence, in particular with regard to to the issue you had raised concerning Payment Protection Insurance. The amount claimed was a default balance of XXXX together with a collection charge XXXX The current proceedings are in respect of a revised defalut balance of XXXX and the claim for the collection charge has been abandon. In other words our client has considered the PPI position and has removed all charges associated with PPI from the claim.

On that basis we consider that our clients claim, as revised, is justified.

we would invite you to contact this office within the course of next 14 days to discuss terms of settlement.

 

What on earth is this all about? I dont accept their position, Can you enliten me or advise accordingly?

Regards Peter

[sillygirl1]

What it is about is them trying to further abuse the court process.

 

Their claim is substantially the same, ie it is based on the same original agreement and whether or not it includes PPI (which you will have paid in with your payments to them whether or not they removed PPI) so it is still an abuse of process.

 

Give their letter to the court and state that you have not contacted them and asked for a stay of proceedings, and ask them for STRICT PROOF of where they were informed you wanted a stay of proceedings, this should be in writing of course - a telephone call will not be accepted.

 

Get faxing and emailing them and throwing the paperwork back at them...

[Clynite]

Thanks for that sillygirl1, I'l get something together this weekend, to post to Restons as per your advice and get a copy of their letter to the Court on Monday.

Thanks Peter

[Clynite]

Quote:

I think he should fax - do not write - to Restons to tell them that he intends to apply to the local court to strike this latest application out and stay the claim, plus apply for a civil restraint order, because of their behaviour.

 

Mark that without prejudice, save as to costs. (Most important) Give them 3 days to seek instructions from their client and invite them to confirm, by fax/email back - don't wait for post - that they will withdraw their application to reinstate on a permanent basis.

 

If they don't, we'll have to pull an application for all that together, but I think threats of turning Restons costs on themselves should be enough to turn them off continuing. If it doesn't, then the game is on.

 

It will take these 3 days for the flaming Court to receive the transfer of files, etc, as well, but there's nothing we can do in that timeframe, so time to stick the boot in to Reston's.

 

I've just written some letters using the advice above and from sillygirl1.

So to date, Ive submitted the AQ, statement of fact, written to Restons and sent a copy of Restons letter to my local Court with an explanation.

Hope Ive done everything correctly, will keep everyone posted.

Many thanks for all the help

Peter

[Clynite]

Help please.

I am in a bit of a muddle and panic. I have followed the advice given to date by all, as best I could. Developments today have muddled me. I received the following from my local CC dated 27 October 2009:

"Notice of Directions Hearing N24 to the Defendant.

It is taking place next Wednesday 4 Nov - 30 mins has been allowed for the Directions Hearing and I should attend.

Please note: This case may be released to another Judge, possibly at a different Court."

Can anyone explain what this means? Do I have to provide any details or documents? Is there anything I should or shouldn't say? Will Restons be there? Shall I inform the Court of the letter I have sent to Restons etc. Panicking a bit as I dont fully understand and dont want to mess up now Ive come so far.

Thanks Peter

[citizenB]

Hi Peter,

 

Dont panic. A directions hearing is pretty standard procedure.

 

This is a post from supasnooper from another thread

 

It will be a hearing where the Judge will specify to both parties what documents must be submitted, and to who, and when by.

 

It is done to make sure that the full facts are available to everyone so there are no delays in the progression of the case.

 

I would advise that you attend this hearing, as the Judge will ask you what documentation you require disclosing from the claimant for your defence.

 

 

Some more information I found

 

A directions hearing is one in which the Court will set directions for

how your case will proceed. So, for example, it will say when the

parties should give disclosure of documents; when witness statements

will be prepared; whether any expert witnesses are needed. They may

also give you a rough idea of when the final hearing will take place.

That sort of thing.

It is unusual for anything to be decided in relation to the case itself

(i.e. who will win/lose).

the aim is to give directions to ensure that the case is ready for trial. Depending on when the proceedings were issued, the directions might relate to exchange of witness statements, documents and expert reports or to setting a date for trial and ascertaining what dates there are to avoid.

Just in case, you should be ready to answer questions about your case.. so make sure you are comfortable with your presentation and the contents.

 

I would say take a copy of your defence and witness statement with you, just to be on the safe side.. perhaps also a rough draft of a skeleton argument so you have something to refer to if you are asked questions.

I will bring this to the attention of others to put your mind at rest. [/font]

 

I wonder if it might be a good idea to take that letter that Restons sent to the court saying YOU had asked for a stay.. Others I am sure will confirm what, if any thing you need to take.

Edited October 28, 2009 by citizenB
removed annoying font commands

[Clynite]

Thanks for your reply citizenB,

I will follow your advice and the quoted help also. But am unsure about this quote:

"I would advise that you attend this hearing, as the Judge will ask you what documentation you require disclosing from the claimant for your defence."

As Im claiming, 'Res Judicata' applies and the claim is an abuse of the Court process, is it neccesary to request documentation from the claimant, and if so what? Because, if im correct, the case has been dealt with previously and therefore Im only attempting to get the Court to accept that. Anything of relevance will be appreciated.

Thank you and the other team members for their assistance and all contributers.

Thanks Peter:)

[supasnooper]

I think CitizenB has quoted my entire sentence and not edited out the last few words.

 

I would advise you do attend, just in case you need to take a Judge through "Res Judicate".........oh, not forgetting to ask the Judge for your costs.

[citizenB]

sorry supasnooper

[Clynite]

Thanks for that supersnooper,

Im greatful for clarity, will use your advice when I draw up case notes over the weekend.

Thanks again Peter

[Clynite]

Hello everyone, this is an update and request for further help please.

I was at Court today for the Directions Hearing. The proceedings were a little intimidating and I cant remember everything verbatim but, essentially, the Judge asked me if I thought the current proceedings were based on the same as the previous case that was struck out. I explained that they were albeit for the claim that the balance was a revised one based on the omission of the PPI payments.

 

I further explained that Restons were deliberately misleading the Court as I had received numerous such demands since the 'strike out' in Jan 2006 (all showing the same outstanding balance, some revised some not) That they manipulate the figures to justify their demands. Further that I have been subject to this unjust harassment since the 'strike out' nearly 4 years ago. He then asked me if I owed this money - I replied 'No'. He then asked me what my defence was in relation to the case - I got a little confused, and began citing the grounds I used initially for the first claim. He then informed me that the original case had not progressed to a hearing utilising my defence. I think he realised I was struggling and turned to Restons representative. He asked him to justify his claim.

 

As best I understood, he basically said that the original trial had never proceeded to finality with my defence and that the revised amount would enable his client to reach finality and recoup their monies. Thats the jist of it any way.

 

He then returned to me to elaborate on my defence. Being a little intimidated I lost my way a little and cited the Res Judicata statement I had provided the Court. He acknowledged this and confirmed he knew what argument I was attempting to make, but I think he wanted me to elaborate and justify in more detail. He then turned to Restons and asked him why he shouldnt treat this claim as an abuse of the court process under CPR 3.4. Restons made some garbled attempt to justify their stance, when the judge opened some book and read from CPR 3.4 and cited some of its content. I was in overload at this point, so possibly missed some information.

 

I asked if I could interject and mentioned the letter Restons had sent me - indicative of their lies etc he confirmed that he had read all my paperwork submitted to the court prior to this hearing and was aware of its content. Further, I told the judge that restons had failed to answer my letter ( sent as advised on this thread previously ).he acknowledged my comments. Now for the bit that I need help with. The judge said to me ' I would like you to submit an amended defence and I suggest you make an application for a strike out order as an abuse of court process.'and that Restons file a statement in response within the next 14 days. The Judge said that I would receive official confirmation of his direction in the next few days. So, I can elaborate further if I need to. Can anyone help and say how they think it went based on my explanation.

 

Incase it helps here is a copy of the defence the Judge has read to date: This was kindly suggested by TLD earlier in the thread.

 

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.

 

Am I right in thinking, the judge requires more detail on the Res Judicata argument and if so what can I add?

Hoping for some salvation after a daunting 15 mins in court.

Regards

Edited November 4, 2009 by citizenB
stuck a couple of paragraphs in for easier reading :)

[citizenB]

Woohoo, well done clynite.

 

IMHO, It looks as though you had a fair judge and he is giving you an opportunity to forward a more structured version. Basically making sure all the i's are dotted and the t's crossed.

 

I will try and round up some people with more knowledge than myself and can help you put your case together.

 

Firstly we need to get your amended defence together and I am wondering if you need to complete an N244 for the application to strike out. I will ask for you. I am not certain just how much time you have .. did the Judge say that you had 14 days to submit your amended defence and then Restons to file a statement in response.. or this all has to be done within 14 days ?? I think it more likely the first.

 

The judge said to me ' I would like you to submit an amended defence and I suggest you make an application for a strike out order as an abuse of court process.'and that Restons file a statement in response within the next 14 days.

[Clynite]

Hello and thanks for your prompt reply citizenB,

 

As I understood?, the Judges directions had to be completed within 14 days. I'l know for sure when his written order arrives. Unfortunately, I was a little overwhelmed by the events and not able to totally take everything in. Im a bag of nerves in situations like this. But I have accurately conveyed the activities of todays hearing as I understood. As soon as the court order arrives, I will update the thread accordingly. the Judge definately asked me to ammend my defence and submit application for a 'strike out'.

Regards

[cashins]

As I understood?, the Judges directions had to be completed within 14 days. I'l know for sure when his written order arrives. Unfortunately, I was a little overwhelmed by the events and not able to totally take everything in. Im a bag of nerves in situations like this. But I have accurately conveyed the activities of todays hearing as I understood. As soon as the court order arrives, I will update the thread accordingly. the Judge definately asked me to ammend my defence and submit application for a 'strike out'.

Regards

 

Well done.

 

From what you say you seem to have got the main points accross and it would seem the the judge didn't think to much of Restons position or their efforts to defend it.

 

He has also specifically asked for an application to 'strike out' which hopefully gives some clue to how he'e thinking.

 

David

[supasnooper]

I'm with CitizenB here.

 

I'm of the opinion that the Judge has intimated to Restons they 'd best think again before continuing the claim.

I say this as the Judge has requested\suggested you make an application for a strike out order as an abuse of court process.

 

So, Well done on your day in court....it will have given Restons a big headache and a warning shot fired at them by the Judge as to their procedural behaviour.

[citizenB]

Peter, I have been looking for res judicata on the forums and come up with this defence on another thread.

 

Point 2 in particular appears to be of some interest I would think. At the same time, I am trying to track down the person that helped speedloan.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2530933.html

 

 

 

I, xxxx, am a Litigant in Person & make application for a strike out of this application for reinstatement of this claim for the following reasons:

 

1. The claimant, xxxx, issued a summons in the xxxx County Court on xxxx. The defendant issued his defence & completed his AQ on xxx. The claimant was ordered to submit a fee by 23 July 2009 if he wished to continue with the claim. The claimant failed to comply & the court permitted him a further 7 days in which to comply. The claimant was notified of this on 24 July 2009. Again the claimant failed to comply & the case was ‘struck out’ on xxxx. That order was evidently, not appealed within the time limits set by the court and therefore remains the order of the court in relation to the issue.

 

2. 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 as that described by Sir James Wigram V.-C. in Henderson v Henderson (1843) 3 Hare 100 at 114: "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."

 

3. I sent a request under CPR31.14 to the claimant on xxxx for information necessary for me to formulate a defence. This included copies of the default notice & proof of mailing plus statements of account to enable me to assess the accuracy of the claim. To date I have not received this information.

 

4. It is necessary under S87 of Consumer Credit Act 1974 to serve a default notice before terminating an account & commencing legal action. I have not received a default notice & therefore put the claimant to strict proof of mailing of such. He has failed to supply me with this evidence.

 

5. Furthermore failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Defendant a counter claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119). The claimant has not provided a detailed statement of account & it is therefore impossible to ascertain the accuracy of the default notice.

 

6. The claimant has been given the opportunity to assess the validity of my defence & has been offered two opportunities to progress with the claim. He did not take those opportunities & he has not fulfilled my CPR31.14 request. I therefore request that court considers the full implications of CPR3.9 & an abuse of process under CPR3.4. The claimant has no reasonable prospect of success & I request that the court denies the claimant permission to reinstate this claim.

 

 

7. Alternatively, if the court grants the claimant’s application for reinstatement of claim, I request the court to issue directions for the appropriate information to be provided by the claimant to enable me to compile a defence. Without production of the requested documents the case cannot be dealt with justly and fairly, and would severely prejudice my rights to a fair trial as laid out under Article 6 of the Convention rights contained within the Human Rights Act 1998. (draft directions attached)

 

[DonkeyB]

Sounds to me like the judge is suggesting you put it on a N244 so it's formally asking for a strike out. Remember to go for costs as well.

[citizenB]

To download a copy of the N244, click on the blue link.

[spamheed]

Nice to see a Judge showing a little respect for the legal process, rather than the usual stories where they simply go along with the antics of the DCAs

 

and (hopefully) one more for the little people

[foolishgirl]

Hi Clynite

 

CB has drawn my attention to your current situation, however I haven't followed your whole case so forgive me if the following comments do not fully apply.

 

As far as I can make out, you seem to have presented a credible case to the DJ for Restons not reinstating. You now have to push this home with an application for a strike out accompanied with an amended defence based on the original one & pointing out the similarities with the case that Restons are now putting forward. i.e. this is the same POC that restons has just put a funny hat on.

 

I don't think he is asking for you to explain res judicata - that is a well know legal principle of which he would be fully aware. I think he was fully appreciative of the point you were making in that respect & giving both you & Restons the heads up that this princile applies in your case as long as you can make an acceptable argument that the 2 claims they have submitted are basically the same.

 

IMO the application should be done on a N244 but before you do so, wait for the docs. to arrive from court as it will tell you exactly what the DJ has ordered. You may have to pay a fee for the applic. (ask the court clerk) but you will get that back from the claimant. (Don't forget to submit an application for costs at the same time as you apply for the strike out)

 

Speedloan has a similar case going with Restons that you may like to look at:

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/197168-speedloan-claimform-claim-discontinued.html

[Clynite]

First and foremost, thanks to everyone, who has offered advice and support especially CB. I have read recent posts and have an idea where everyone is coming from. I am still awaiting Court docs, so I can confirm with you the details etc.

I have realised, reading original Court directions from original 'struck out' claim, that Restons have been here before. Prior to the final SO, Restons were ordered to Aug 2005 ) file and serve a response to my draft defence by *, interim charge order continue etc.

Days before the next hearing (Sept 2005 ), the Court and myself received a letter from Restons stating " We are instructed not to continue with the application for a charging order and would be obliged if the application could be dismissed."

Days later at the penultimate hearing, no defence had been provided by Restons and the DJ made his judgement in their absence ( Oct 2005 ) ie Charging order dismissed, original DN be set aside, 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 **Jan 2006 the claim be struck out. Then, I received Court order confiming SO in Jan 2006. Basically, they were offered 3 months leave of appeal, if Im correct.

If Im correct, my defence should consist of elements that this is the same claim / amount, same agreement, and the additional info that CB has provided.

I have a DN direct from Claimant dated Dec 2007 showing the same default balance that Restons are now claiming. The difference being, that Restons have implied to the court, this balance is after the Claimant has abandon their PPI caharges. Clearly Restons are misleading the court. I informed the DJ about this. The balance now claimed by Restons has always been the so called balance! I explained to the DJ that all the elevated figures quoted by Restons are, a combination of balance plus thier extortionate costs and court fees, and nothing to do with PPi payments etc. Restons have not responded to my request for strict proof of their claim that I requiested a stay of proceedings and my intentions in this current claim. They have received my letter, I confirmed via the post office tracking system. When I get my ammended defence together, will I have to submit a copy to Restons aswell as the Court?

PS at the recent directions hearing, I asked the Judge for my costs. He looked at me and said " dont worry about that now, they will be decided at next hearing".

Thanks to everyone:)

Edited November 8, 2009 by Clynite

[citizenB]

Thanks for looking in FG and explaining the res judicata part more clearly.

 

Peter, so what we are now waiting on is the order from the court, yes ? Perhaps you can put together a draft so you can be ready to leap into action once it arrives through the letter box:)

 

It seems to me as though everything is falling into place now.

[Clynite]

Hello CB,

Yes you are correct, we are awaiting the court docs. I have read the information you have provided and others. As suggested, I have drawn up a draft defence as set out below. My apologies in advance, if its not up to scratch, I am not very good at this type of thing. I would welcome any critism or editorial suggestions anyone may have. Here it is:

 

"I, xxxx, am a Litigant in Person and make application for a strike out of this application for reinstatement of this claim for the following reasons:

 

1. The claimant, xxxx, issued a summons in the xxxx County Court on xxxx. The defendant issued his defence on xxx. The claimant was ordered to file and serve a response to the defendants defence by/on xxxx if they wished to continue with the claim. The claimant failed to comply and the court permitted the Claimant a further three months in which to comply. The claimant was notified of this on xxxx. Again the Claimant failed to comply and the case was ‘struck out’ on xxxx. That order was evidently, not appealed within the time limits set by the court and therefore remains the order of the court in relation to the issue.

 

2. Since the cause of action in this claim is identical to their previous claim and the earlier proceedings were dealt with by a Court then the doctrine of estoppel known as res judicata applies and this action should be deemed an abuse of Court process as that described by Sir James Wigram V.-C. in Henderson v Henderson (1843) 3 Hare 100 at 114: "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."

3. 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

4. The Claimant has implied ( letter supplied to the Court ) that I have requested a stay of proceedings in order to resolve the matter amicably. I refute this, and have put the Claimant to strict proof of this claim. They have failed to supply me with this evidence.

 

5. The Claimant has admitted in writing that this is a re-presentation of the same claim made previously.

6. The claimant was given the opportunity to assess the validity of my previous defence and was offered two opportunities to progress with the previous claim. They did not take those opportunities. The Claimant is being vexatious and anachronistic in the issuing of this application and I therefore request that the Court strikes out this order as an abuse of process under CPR3.4. The claimant has no reasonable prospect of success and I request that the court denies the claimant permission to reinstate this claim.

Regards Peter

Edited November 10, 2009 by Clynite

[foolishgirl]

Excellently put together Clynite. FWIW comments below:

 

5. The Claimant has admitted in writing that this is a representation of the same claim made previously. ( albeit with a revised amount claimed against the defendant ) I would leave this last clause out, Clynite - it may give an uneducated DJ an excuse to reinstate. If the facts are the same save for the sum there is no legitimate reason to reinstate.

 

6. The claimant was given the opportunity to assess the validity of my previous defence & was offered two opportunities to progress with the previous claim. He did not take those opportunities. The claimant is being vexatious & anachronistic in the issuing of this application & I therefore request that the court strikes out this order as an abuse of process under CPR3.4. The claimant has no reasonable prospect of success & I request that the court denies the claimant permission to reinstate this claim.

 

[citizenB]

Briliant, FG.

 

Peter, all I have to offer is where you have made reference to the claimant as "HE".. you should change that to either they or the Claimant

Well done.