Can you be taken to court twice for same debt

[superg]

Hello All

 

I have a old egg credit card and egg tried to take me to court and get ccj but they backed out and I got a letter from Mr carter saying so.

Now aktiv-kapital have it and are pestering me for payment I am sure that the same debt cant be taken to court twice has any one any ideasits just over 600

Thanks in advance

[cymruambyth]

I think they need the court's permission. Why did they back out?

[postggj]

Discontinuance and subsequent proceedings

 

38.7

 

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.

[superg]

Hello Thanks for your reply

it was an old egg Unenforceable agreement Think thats why

 

Thanks

[liquidauctions]

postggj has given the best answer

[MARTIN3030]

postggj has given the best answer

 

I thought it was the ONLY answer ?

[liquidauctions]

I thought it was the ONLY answer ?

 

Depends how technical you want to be about it

[vjohn82]

Did you file a defence to the original action superg?

[superg]

yes defence was filed Thing is i am hoping that I can do a dro soon just need a little time to get it sorted out thanks for your reply

[vjohn82]

Well if you have filed a defence they do indeed need permission. The only bar to restarting a claim without permission is against defendants who originally submitted a defence.

 

You might find this useful:

 

 

White Book – Civil Procedure Volume 1 (Sweet & Maxwell) - 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.

[MAGDA]

It's clear that cpr 38.7 should mean that a claimant wishing to bring proceeding for the same claim would need to apply to the court, as they have already had one attempt at litigation and discontinued their claim, for example. In superg's case though, the claim was discontinued and then, it seems, assigned to Aktiv. Is section 38.7 still relevant in this particular scenario? As it is actually a new claimant in effect, are they entitled to issue proceedings without application to the court? Just wondered if anyone could clarify this as cpr 38.7 says: "A claimant who discontinues a claim...." It doesn't seem to clarify what happens if the debt is subsequently sold on to a 'new' creditor who wasn't directly responsible for the discontinuance.

[Jamesx81x]

The original creditor has sold on the debt as they know they have absolutely no chance of getting a penny from you therefore they have cut their losses and obtained what money they can from the sale of the debt.

 

This just shows the intelligence of a Debt Collection Agency to purchase a debt without obtaining a copy of the agreement from the creditor.

 

If the creditor had the agreement in the first place it would be unlikely that they would discontinue as they did, the fact that they did not have it means they cannot enforce the agreement against you so neither can the DCA.

 

Issue them a CCA request and await their response.

[MAGDA]

The trouble with that is that the original claim being discontinued isn't necessarily because the claimant doesn't have an enforceable agreement - it can be to do with other issues, which they may have decided, at the end of the day, were not worth risking in court, even though they originally intiated the proceedings. They then sell the debt back to the OC (sometimes the Deed of Assignment gives them an automatic right to do that) and the OC then decides they are going to give it another go in court, thinking that if the original issues concerned the DN, for example, they will issue a fresh one and recommence proceedings, although this of course has its own set of issues, if, for example the account was terminated. Legally, i'm just wondering where we stand as far as cpr 38.7 is concerned if the organisation re-issuing the proceedings isn't actually the claimant who previously issued the claim, although it would of course relate to the same debt (account).

Edited May 23, 2011 by MAGDA

[iconoclash]

Hi - this is very similar to the question I have just posted up about new owners enforcing old court orders - I have no answer either and am finding it a tricky area to research further - but - do note that many of these orders state "with liberty to restore" - which I presume to mean that they are getting prior permission to enforce in the future - but also think it should only apply to the party which brought the claim and submitted the evidence and paid the fees - ???

[Jamesx81x]

I would say that CPR 38.7 applies to the same creditor although something that needs clarifying as it is confusing as to who it applies to.

 

my last post was on the assumption that it was down to the agreement they discontinued, although as said could be other deciding issues.

 

The fact that they did not follow it through suggests something is not right and how it should be.

 

Have you tried SAR them?

[eggy12]

Interesting topic.. Carter acted for Egg against myself and cag. I went through the usuals and after we both did not turn up at court twice Carter then pulled out and withdrew all.

 

It was strange as they had what looked like a rock solid claim.

 

Upon my latest Carter saga the second court threatening letter stated "we have the permission from the owner of the debt this time" ! Typical DCA tactics gone wrong on them i believe.

 

So yes if this then gets sold on can i be taken back to court by someone else ? I myself did NOT file a defense !

 

vjohn82 in post 10 has hopefully answered this.

Edited May 23, 2011 by eggy12
addd extra

[Jamesx81x]

CPR 38.7 only applies if you filed a defence

[MAGDA]

Hi - this is very similar to the question I have just posted up about new owners enforcing old court orders - I have no answer either and am finding it a tricky area to research further - but - do note that many of these orders state "with liberty to restore" - which I presume to mean that they are getting prior permission to enforce in the future - but also think it should only apply to the party which brought the claim and submitted the evidence and paid the fees - ???

 

Yes, I would think it would only apply to that particular claim, if the same creditor wanted to reinstate proceedings. If they sell the debt on again, or pass it back to the OC, as you say, I don't think the permission to restore would apply.

 

I would say that CPR 38.7 applies to the same creditor although something that needs clarifying as it is confusing as to who it applies to.

 

my last post was on the assumption that it was down to the agreement they discontinued, although as said could be other deciding issues.

 

The fact that they did not follow it through suggests something is not right and how it should be.

 

Have you tried SAR them?

 

I do agree with all that you are saying about something usually not being right and what you were saying about the agreement perhaps not being enforceable, I know that is something we see a lot on here. If it's for some other reason though, I think they are more likely to make a second attempt at proceedings, such as in the case of a DN. I am really enquiring about this as one of my own accounts, ex First National (GE Money) was assigned to Link, who issued a claim then discontinued. They then claimed to have sold the debt back to the OC. This was a few years ago now, and no real problems. GE has recently issued a claim though against someone in a very similar situation to me and threatened others, so just interested really to know what happens in this scenario as far as being entitled to issue a new claim for the same account is concerned. It is confusing as cpr 38.7 seems to imply it concerns the same creditor reissuing proceedings, not a new one.

 

Be nice to know for sure.

 

Magda

[Ell-enn]

Does Carter ever turn up in court? - he likes to get CCJ's by default via Northampton Bulk Centre - easy money for him ....

[Jamesx81x]

Im actually in the same situation with second proceedings about to be issued against me but it is from the same creditor. If the courts give them permission then it is a total flaw in the CCA.

 

The old discontiuance after defective default notice story, then make out the agreement wasnt terminated due to the default notice been defective and issue a new notice.

 

My agreement has now been terminated twice . Really do not understand how that can be and beleive it suits creditors and solicitors to interpret the act in that way.

 

Superg i really would SAR them to see what comes up. it may or may not help you but worth a try

[Jasper1965]

Nemo Dat Quod Non Habet!

 

The debt purchaser has to be assigned the rights of the debt seller before they have the ability to raise an action. The debt seller by virtue of CPR 38.7 does not have the right to bring proceedings again other than with prior permission from the Court.

The debt purchaser has purchased a debt and been assigned the rights of the debt seller, those rights include the right to raise litigation but ONLY if prior permission is sought from and granted by the Court.

 

Nemo dat quod nom habet is generally interpreted quite vaguely eg "one cannot give better title than one has" but in it's closest translation reads "one cannot give what one does not have" ie the vendor cannot give the purchaser any right which exceeds the rights of the vendor.