Trying again after dismissed

[charlieismydarling]

I wonder if anyone can help.

 

Creditor (don't believe I owe them money as it was assigned to them after my vehicle stolen and my GAP insurance didn't cover but BCT didn't bother telling me until after) are trying to claim again after first time struck out and then dismissed because they couldn't give the court the documents they asked for. Now claiming again with the exact same documents. I have submitted a defence saying this shouldn't be allowed but they have judgement in 2010 saying that res judicata doesn't apply due to no adjudication at first hearing.

I am sure I have read something in CPR saying that I can ask the court to dismiss if the likelihood of the claim should fail due to these documents not being available and should have been available at the first hearings.

 

Any help greatly appreciated.

[rebel11]

Hi charlie

 

Welcome to CAG

 

The guys will be happy to advise as soon as they are available.

 

Thread moved to correct forum.

[charlieismydarling]

Can anyone help...court date now 11th April

[numbers666]

A party to civil proceedings or his privies may be estopped from re litigating findings made by the court in the civil proceedings between himself or his privies, and another party or his privies. This is known as estoppel by record or per rem judicatam. This must be pleaded to take effect however. Thus, in the case of Conquer v Boot (1928) P sued a builder D for damages for breach. Due to defective workmanship. P was therefore estopped from bringing further actions for the consequences of the defective workmanship as P had failed to particulars them in the original action.

 

A cause of action in estoppel or an issue estoppel may arise only if certain requirements are satisfied. Firstly the parties must be the same or privies of those that were in the original proceedings. Secondly, the parties in the latter proceedings must be litigating in the same capacity as they were in the same proceedings. Thirdly, the cause of action that is been litigated in the latter proceedings must have been litigated in the original proceedings, and finally the court which determined the relevant issue in the original proceedings must have been a court of competent jurisdiction, and must have given a final judgement upon the merits.

 

Parties should also be mindful of the rule in Henderson v Henderson which states that a party may be estopped from bringing a cause of action in latter proceedings if it through the exercising of reasonable diligence he might have proceeded with against the same party in a previous case. However the rule is by no means automatic and will depend on all the relevant circumstances of the case.

 

"... when 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 ... The plea of res judicata applies, except in special cases ... 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". (emphasis supplied)

[charlieismydarling]

Thank you. The judge in the earlier hearing had said the claimant could reissue.....I only got a copy of that order about three weeks ago when claimant served papers to me. It was all around the deed of assignment....they had served me with a notice of assignment but the judge in 2009 said they had to provide a copy of the original deed of assignment but didn't even after judgen ordered hence dismissal I think. Thing is they still haven't provided copy but just the notice of asignment and now think this might be enough for them if they are going ahead with it again?

[charlieismydarling]

Also looks like judge says hadn't made a final judgement by the looks of it but dismissed the claimants case for reversing a previous struck out? Might be why they are trying again but still don't know why they are using exactly the same argument and evidence that the first judge didn't accept i.e original copy of assignment?

 

Any help appreciated. Thinking of ringing their person and offering some form of payment plan even though I don't believe I owe it in the first place!!

[numbers666]

Also looks like judge says hadn't made a final judgement by the looks of it but dismissed the claimants case for reversing a previous struck out? Might be why they are trying again but still don't know why they are using exactly the same argument and evidence that the first judge didn't accept i.e original copy of assignment?

 

Any help appreciated. Thinking of ringing their person and offering some form of payment plan even though I don't believe I owe it in the first place!!

 

I would suggest estoppel is the defence as no changes to the original claim have been entered. The claimant was struck out previously on exactly the same principles and although the claimant has been granted leave to reissue proceeding no material evidence has been introduced.

 

Also in the time 3 years between the two actions no evidence has been offered in support of the claimant and therefore you request the claim struck out. You believe you have permitted the claimant sufficient time to produce the documents and they have failed to do so despite previous directions. You do not see why the claimant should be granted such under CPR.

 

If the alleged debt arising from this claim is over 6 years prior to the date on the recent claim, then an absolute defence is sb. The dismissal of the previous claim does not restart the sb clock.

 

N

[charlieismydarling]

Should also mention even after the dismissal in Jan 2010 I received a without prejudice letter in November 2011 wanting payment with added interest from first hearing....they even had the court case number on the letter asking for payment even though they obviously new the case was struck out.......is that legal?

[charlieismydarling]

Any further advice......should I put in an estoppel claim now or wait until the day? Do I have to inform the court that I will be relying on this before I go? Any help appreciated

[charlieismydarling]

Can anyone advise please? Should I contact their legal person and arrange payments as can't afford a CCJ against my name....?

[charlieismydarling]

I am in court on Wednesday.......do I use the argument of estoppel with the judge then in a skeleton brief on the day? any help please!

[charlieismydarling]

The case was dismissed today. After all that the judge actually said I didn't owe nothing because the insurance company offered the original credit company an amount and they accepted it by bankingbthe cheque as full settlement of the HP agreement. He also said it was unfortunate I hadn't made a counter claim as I had in the first case but certainly the 500 I have paid them should not have been paid. Anyway.....its over and thanks to this judge. Thank you for everyone who helped me and gave me the confidence to defend this.

[charlieismydarling]

I should now sue and put them through the same cr*p!!!!!

[asokn]

Costs?

[charlieismydarling]

Judge just siad he was dismissing and they should feel lucky no counter claim was submitted....he advised their solicitor they could appeal but to think about that very carefully and no mention of costs?

[asokn]

Oh, never mind; the important thing is that you won

[charlieismydarling]

Thank you