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Guest janensteve

Appeal to CPR 38.7

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Guest janensteve

I my lovely judge denied permission to bring a second claim by a creditor under CPR 38.7

 

this has now been appealed by the claimant in particular

 

  • The Defendant raised issue with the fact that a letter confirming termination that he had received from the Claimant had upon it an incorrect date and referred to section 98 of the Consumer Credit Act 1974. Section 98 of the Consumer Credit Act 1974 provides as follows:

"Duty to give notice of termination (non-default cases)

(1) The creditor or owner is not entitled to terminate a regulated agreement except by or after giving the debtor or hirer not less than seven days' notice of the termination.

 

(2) Subsection (1) applies only where—

(a) a period for the duration of the agreement is specified in the agreement, and

(b) that period has not ended when the creditor or owner does an act mentioned in

subsection (I),

but so applies notwithstanding that, under the agreement, any party is entitled to terminate it before the end of the period so specified.

 

(3) A notice under subsection (1) is ineffective if not in the prescribed form.

 

(4) Subsection (1) does not prevent a creditor from treating the right to draw on any credit as restricted or deferred and taking such steps as may be necessary to make the restriction or deferment effective.

 

(5) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

 

(6) Subsection (1) does not apply to the termination of a regulated agreement by reason of any breach by the debtor or hirer of the agreement. "

 

  • The District Judge sought to assess whether termination was valid. The District Judge used a blue book for reference from which she read and applied s.98(3). The District Judge did not state that she had read or considered s.98(6). The District Judge then stated that (paraphrased):

a) S.98 was the applicable section with regard to terminating agreements;

b) If a termination notice was not in the prescribed form then it would was ineffective;

c) That the loan agreement and the details of the loan were not in the termination notice

and therefore the termination was not in the prescribed form;

d) Therefore the Claimant would not be able to rely on this to demonstrate that the agreement had been terminated;

e) Therefore the application was dismissed; and

The District Judge noted that she was not content to grant permission when she was expecting a notice of discontinuance to be filed in due course.

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Guest Old_andrew2018

Hope the appeal goes well

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Guest janensteve

i would really appreciate some technical input on this, like should i apply to strike out the 2nd claim which has already commenced.

 

I understand that an appeal does not stay a judgement.

 

If i strike out, will i then be able to rely upon estoppel ?

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Guest janensteve

ok you caggers,

 

just got back from a whole day at the court of appeal in respect of a consumer credit agreement defaulted with a Defective Dn and then subesquently defeaulted on an allegedly defective DN.

 

I won, the creditor lost, but here's a salutary warning. The creditors costs of the appeal alone was £3,250. This particular appeal was where the claimaint had issued a claim, entered judgement in default, obtained interim charging order, but was batted back at the final charging order application wherein the application was struck out and the judgement set aside. Phew, one would have thought... a defence was then filed and the claimant discontinued their claim. end of......... i hear you say.....

 

But no, a new DN was served (Previous one was dodgy), a new TN was served and without notice a new claim issued based on substantially the same facts.

 

UP pops yours truly and shouts "Foul" CPR 38.7 applies, where is your permission !

 

application for permission made by the claimant, hearing takes place and the DJ denies permission for leave to issue a new claim. end of........ one would assume, especially as 2nd claim costs were £300 approx, but oh no, they wanted to appeal the judgement of the DJ and so an appeal was actioned by the claimant, all of a sudden, the appeal costs had leapt to £3,500 approx.

 

anyway funsters, the bit you need to be aware of is this.....

 

1)It is submitted that the issue of fresh proceedings is an abuse of process as the Claimant, following discontinuance AFTER a defence had been filed, had issued its 2nd claim prior to obtaining permission pursuant to CPR 38.7 which states that

 

A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if –

 

a)he discontinued the claim after the defendant filed a defence; and

 

b)the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.”

 

 

I refer Counsel for the Claimant and the Court to the “White Book – Civil Procedure Volume 1 (Sweet & Maxwell) and in particular the effect of rule 38.7

 

“As a matter of common sense, where a claimant who has brought and then abandoned a claim ought not as a general rule to be allowed to start another claim arising out of the same facts.

 

A Claimant, who wishes to do so, is first required to seek permission. [The claimant sought permission after he started his claim in breach of the rule] The court is likely to give permission for example where the Claimant was misled or tricked by the defendant [The Claimant sought to withdraw its previous claim to manufacture a further document i.e a second default notice. It is submitted, that the 2nd Default notice requires a live account in order to be of effect such account having been terminated previously by the claimant, IT is surely not the intention of parliament that a creditor can issue default notices and termination notices ad infinitum], where important new evidence has come to light [No new evidence has come to light other than a 2nd Default Notice which on the face of it again appears to be defective manufactured by the Claimant which perpetuates the fiction that the agreement had not been previously terminated. The Defendant avers that new evidence that might be relevant could be new evidence from a third party that was not available at the time] or where there has been a retrospective change in the law. (e.g. House of Lords case overriding a Court of Appeal decision which had led the claimant to discontinue). [The Defendant is not aware of any retrospective changes that are applicable to this case] All these examples are of course, exceptional cases and assume that the limitation period has still not expired.

 

Under the former practice of former RSC 0.21 r.3 where leave to discontinue was required, the court would often impose terms as a condition of granting leave including a term that no new action be brought. Such an order is no longer required as r38.7 puts the onus on the claimant to seek permission before making another claim against the same defendant arising out of the same facts.

 

The rule is silent as to how the claimant seeks permission. Therefore the general rules in Pt 23 apply. The application should be on notice with evidence.

 

Permission for another claim is not required if the claimant discontinues the first claim before the defendant filed a defence

 

It is clear that the intention of rule CPR 38.7 was that permission be granted where there were exceptional circumstances beyond the control of the claimant which prevented the Claimant from bringing forth its whole claim in the original claim such as a retrospective change in the law etc. Counsel for the Claimant mis-directed himself to limit his submissions to CPR 3.4, which of course relates to the striking out of a statement of case. It is also noted that CPR rule 24.2 provides:

 

"The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if -

(a) it considers that -

(i) that claimant has no real prospect of succeeding on the claim or issue; or

(ii) that defendant has no real prospect of successfully defending the claim or issue; and

(b) there is no other reason why the case or issue should be disposed of at a trial."

 

The hearing was not in respect of an application to strike out a claim, it was in respect of an application for permission to make another claim which was a case management decision which requires a higher threshold to appeal against because the judge at first instance was entitled to exercise discretion.. Accordingly, In so far as a strike out action is concerned it is clear that:-

 

(i)where A has brought an action against B, a later action against B or C may be struck out where the second action is an abuse of process.

(ii)A later action against B is much more likely to be held to be an abuse of process than a later action against C.

(iii)The burden of establishing abuse of process is on B or C or as the case may be.

(iv)It is wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive.

(v)The question in every case is whether, applying a broad merits based approach, A's conduct is in all the circumstances an abuse of process.

 

Proposition ii) above seems to me to be of importance because it is one thing to say that A should bring all his claims against B in one action, whereas it is quite another thing to say that he should bring all his claims against B and C (let alone against B, C, D, E, F and G) in one action. There may be many entirely legitimate reasons for a claimant deciding to bring an action against B first and, only later (and if necessary) against others.

 

Those reasons include, for example, the cost of proceeding against more than one defendant, especially where B is apparently solvent and the case against B seems stronger than against others. More defendants mean more lawyers, more time and more expense. This is especially so in large commercial disputes. It by no means follows that either the public interest in efficiency and economy in litigation or the interests of the parties, including in particular the interests of C, D and E, is or are best served by one action against them all.

 

It is not the case that just because there has been no previous adjudication that a subsequent claim is therefore no abusive, all the circumstances of the case are relevant. And it is clear that a later action against B is much more likely to be held to be an abuse of process than a later action against C who perhaps is new to the proceedings. Counsel for the Claimant cited the case of Dexter, which of course relates to an original claim between A & B and then a subsequent claim against A & B & C & D in respect of alleged fraud and facts which came to light thereafter. The defendant is not aware of any allegation of fraud by the Claimant or facts that subsequently came to light after its previous claim had been discontinued. Of course it would clearly be an abuse of process and possibly contemptuous for a claimant to discontinue a claim with a view to re-engineering its case by creating additional self serving evidence which contradicts previous evidence.

 

As I say, this is an application for permission under CPR 38.7, and the effect of rule CPR 38.7 has been discussed previously in this skeleton argument. There is little case authority / precedent for such specific applications perhaps because it is rare that a Litigant re-issues a fresh claim based on the same or similar facts or perhaps more likely, litigants have taken a pragmatic commercial decision about the merits of pursuing a claim which is bound to fail or be subsequently discontinued. It is suggested that Discontinuance was in effect more or less a capitulation on the claimant’s part that the previous claim would be unsuccessful.

 

As it has been alleged that this second claim has some similar defects, DJ was entitled to consider how she could give effect to dealing with the case justly by ensuring that the parties save expense and also dealing with the case which is proportionate not only to the amount of money involved but also to the financial position of the defendant who did not have similar financial resources of a creditor bank. The matter, which first resulted in, a defective default notice from XYZ had dragged on due to substantive errors in documentation on the part of the claimant and again in advancing the claimant’s claim by the claimant’s legal representatives.

 

DJ was correct to exercise her duty to identify the issues at an early stage and to decide promptly which issues if any needed full investigation and trial and accordingly which issues could be disposed of summarily and whether the likely benefits of taking a particular step justified the cost of taking it and to bring the matter to a conclusion expeditiously and fairly having due regards to the substantive errors and conduct on the part of the Claimant and his legal advisers as well as taking into account the need to allot resources to other cases.

 

I hope that this helps you guys

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Very interesting indeed. Many thanks for posting that.


I really do appreciate all those 'thank you' emails - I'm glad I've been able to help. Apologies if I haven't acknowledged all of them.

You can also ding my gong if you prefer. :)

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Well done janensteve.

 

Very interesting indeed. Many thanks for posting that.

 

ditto


IMO

:-):rant:

 

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I'll let you know how my cases go using the information in your post... thanks :)

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Oh and has this case been reported?

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