Northern Rock Discontinued but now having a go again!

[eddie303]

Hi Folks,

 

Over the last year thanks to the great help from you guys Northern Rock Discontinued, due to the fact that they sent two DNs on the same date with different amounts. Here is the thread:

http://www.consumeractiongroup.co.uk/forum/showthread.php?210199-Northern-Rock-v-Me-help-please

 

However this week I've received an Application Notice from the local court, Northern Rock are seeking permission to open a new case against me! The date of the hearing is next Thursday 19th August. Here is what I received:

 

http://i766.photobucket.com/albums/xx307/1783952/new_app_Aug_2010-2.jpg

http://i766.photobucket.com/albums/xx307/1783952/new_app_Aug_2010-3.jpg

http://i766.photobucket.com/albums/xx307/1783952/new_app_Aug_2010-4.jpg

 

Can anyone advise what I should do at this hearing?

 

thanks muchly!

[Guest]

see this thread for eg http://www.consumeractiongroup.co.uk/forum/showthread.php?235502-Appeal-to-CPR-38-7

[eddie303]

Thanks Ford. Lots of info in that thread that I can use. So I guess my central argument is going to be that

 

A) they should not be given permission to open a 2nd claim unless something very different has come to light. Them manufacturing a DN to try and correct things is not something exceptional that should give them the right to a 2nd claim.

B) In any case there is no contract anymore that they can issue a new DN against as they terminated the contract by taking me to court the first time.

 

I know I'd need to flesh it out a bit more but can anyone confirm those are the main things I should concentrate on? Anything else I should point out?

[Guest]

imo,

as you say, maybe, in the main, go with that thread? its a shame there doesn't seem to be a citation for it!

anyway, further, as per the linked thread - '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...'

(the requirement to serve a compliant dn, in the first place, is not 'beyond the control' of the cr! ie, it is for them, and no one else, to serve a compliant dn in the first place!)

wait for further opinions?

Edited August 15, 2010 by Ford
typo

[Docman]

eddie,

 

Obviously you need to attend the hearing on Thursday. I suggest that you use the argument/judgment outlined on the linked thread from janesteve. It looks like this case was a decision of the Court of Appeal but without the names of the parties it will be difficult to check. Pity because quoting it would end their little game.

[vjohn82]

I kept these by when in litigation with a well know Indian based DCA ;-)

 

VJ

 

----

 

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."

 

In any case, by an order of the court, a claim between the same parties over subject matter which I understand is similar or identical to the subject matter of the recently issued proceedings, was struck out by order of the court. That order was evidently, not appealed and therfore remains the order of the court in relation to the issue.

 

The basis of the doctrine as it applies to issue or cause of action estoppel involves the policy which favours the benefit of finality, the sanctity of decisions of the court and the avoidance of the risk that courts may issue contradictory decisions. It was neatly set out in the speech of Lord Goff in Republic of India v India Steamship Co Limited [1993] where he said:

 

“…the cause of action, having become merged in the judgement, ceases to exist, as it is expressed in the Latin maxim transit in rem judicatem…”

 

Here lies the distinction between the availability of a second action where the Claimant falls on his sword by discontinuing his claim (and where the claimant wishing to bring a second action satsfies certain conditions) and an order for strike out. The former will involve no judicial decision on the merits whereas the latter often will. I'll deal with the situation where it doesn't shortly. Evidently, the Judge who struck out the first claim decided either there was no merit in the claim, or prospect of success or possibly, that owing to contumelious disobedience of one or more orders of the court, the claimant was undeserving of having the claim progress to trial.

 

It will be necessary to be satisfied that the first and second claims represent litigation over the same subject matter and for the purpose it will be necessary to see the Particulars of Claim of both first and second proceedings. Assuming the second claim mirrors the first, the proper thing to do is to submit a Defence pleading all that may be available by way of defence (there may be an issue over the default notice I gather) plus a plea of res judicata and that 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.

 

Having served the defence I would then be inclined to make an application under CPR 24 for summary judgment on the basis the Claimant has no reasonable prospect of success owing to issue and cause of action estoppel etc.

 

As for any contention from the Claimant that the decision to strike out did not involve a decision on the merits, I would maintain the court has the power to strike out the second action as an abuse of process under CPR 3.4 (mentioned in CPR 24) where unmeritorious proceedings are begun such as this second action. The basis underlying the abuse is that if for example, the first case was dismissed for failure to produce documents in obedience to an order of the court (implying the possibility the decision was not based upon the existence of merit in the claim itself) and the Claimant is now in possession of those documents which it would wish to employ in the second claim, so called 'extended' res judicata principles will apply in the sense that with due dilligence, the claimants would not have begun the first proceedings without first having possession of those documents and with due dilligence, the first set of proceedings were sufficiently available for the Claimant to litigate the issues.

[eddie303]

Thanks for the advice everyone, very much appreciated.

 

I have one little problem, in the thread about the Appeal case, janensteve appears to quote from The White Book – Civil Procedure Volume 1 (Sweet & Maxwell) with this text about CPR 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 court is likely to give permission for example where the Claimant was misled or tricked by the defendant, where important new evidence has come to light 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). All these examples are of course, exceptional cases and assume that the limitation period has still not expired."

 

Problem it doesn't say in his post what page, etc this is from. I would love to quote this tomorrow but what if I'm asked where in The White Book I got that from?

 

Does anyone have The White Book and could tell me page number, etc of the above text?

[eddie303]

Or is there anywhere online I can access The White Book perhaps?

[Bill Shidding]

Hi eddie, I doubt it will be online, mainly because Volume 1 costs £366.20 (from here-)

 

http://www.sweetandmaxwell.co.uk/whitebook/order-today.htm#cpvoat

 

Possibly partially available on gooogle books or from a library.

 

I recently asked a court clerk if the green & white books were available for public viewing at court. Just got a blank look & "no" for an answer.

 

Bill.

[eddie303]

ok, so I guess I'm not going to be able to get access before my hearing today at 2:30PM.

 

If anyone reading this has access to the White Book or is familiar with it and knows roughly where in Volume 1 (even a Chapter or whatever would do) it deals with CPR 38.7 please do post. Thanks