RBS taking me to court - *Struck Out* ** New claim issued by RBS **

[tedney]

The court then confirmed by letter earlier this year that case against me was "discontinued" and case against Mrs was "struck out".

 

 

They then issued a new default notice in April 2013. The basis of the case is the same and I have enough evidence to show they were in contempt of the initial order of the court to submit a WS by 12th June 2012.

 

But are the particulars of all the claims the same? Maybe if different amounts/ reasons Nastywest may/can argue that new case is different, even if it is for same account? A further defence could be that Nastywest are confusing matters by issuing multiple claims too?

 

Hopefully someone with more knowledge can help here.

[AndyOrch]

Res Judicata only applies to claims that have been adjudged...not discontinued or struck out (subject to the reasons)

 

Andy

[42man]

Just my thoughts, but how can they reissue a 'new' default notice, this is purely fiction ? And you no longer have any agreement with them ? You might be interested in reading this - http://www.consumeractiongroup.co.uk/forum/showthread.php?170345-A-Tale-of-a-Dodgy-DN

[dpac123]

Hi Andy, how does this case relate to mine if at all: https://civillitigationbrief.wordpress.com/2014/01/03/second-action-struck-out-as-an-abuse-of-process-report-of-first-instance-decision/

 

 

On the face of it, there seems to be an abuse of process if a case has been struck out, regardless of whether it went to a full trial or not.

 

 

D

[AndyOrch]

Yes it would assist Dpac...but as the link states it was for other reasons not Res Judicata...sanctions imposed because of the Solicitors actions for none complience and taking a laxidaisy approach to the court and CPR

[dpac123]

So given that the same thing happened the first time around i.e. the claimant decided not to submit a witness statement and the case was struck out as a result, this could be relevant? Should we revise our witness statement, submit an application to strike out or both? Do we need to submit the revised WS 7 days before the trial date?

[AndyOrch]

You can refer to the case in question,,,have a copy to hand...as for submitting witness statements...have you been advised in directions to submit one...what date is the next hearing?

[dpac123]

You can refer to the case in question,,,have a copy to hand...as for submitting witness statements...have you been advised in directions to submit one...what date is the next hearing?

 

witness statements were submitted June 2014, trial is on 16th Jan so wondering about revised WS or application to strike out.

[AndyOrch]

A supplemental witness statement ? You need the claimants consent officially or you could just wing it and get it in front of the judge...I personally would just introduce it as evidence on the day......prepare a fresh skeleton argument (3 copies) hand it the claimants council before you go in...in case they object....you would struggle to get an application in time now.

 

Andy

[dpac123]

A supplemental witness statement ? You need the claimants consent officially or you could just wing it and get it in front of the judge...I personally would just introduce it as evidence on the day......prepare a fresh skeleton argument (3 copies) hand it the claimants council before you go in...in case they object....you would struggle to get an application in time now.

 

Andy

 

back in November the court allowed an applicatiob 5 days before. the trial got rebooked so worth a try again?

[AndyOrch]

By all means give it go then...you will have to attach a draft order.

 

Andy

[dpac123]

just checked with the court and they have said if we get an application in tomorrow it should be looked at on Monday. they also said we could send a revised witness statement as part of the application. should we start with cpr 38.7 and ask for it to be struck out on the basis that it has been heard before and struck out due to non-compliance?

[AndyOrch]

CPR 38.7 is discontinuance and subsequent proceedings...I thought it was struck out?

[dpac123]

case was struck out - we didn't receive a strike out order from the court but have a subsequent letter from the court showing case for Mrs P was struck out and case for Mr P was discontinued. this was a joint case with Mrs P as leading name and NatWest failed to file WS in response to court ditections. about 4 weeks after the WS deadline NatWest filed discontinuance for Mr P only. what CPR would be relevant?

[AndyOrch]

So you have a mixture of discontinuance and sanctions CPR 38 for Discontinuance and CPR 3 for Strike out and sanctions.

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part03/pd_part03a

[dpac123]

I'm putting together our application notice so that the judge can read it on Monday morning. Thanks Andy for the strike out/discontinuance info - very useful - they failed to comply with an order to provide their WS and we mentioned this failure to the court as a supplementary to the N170 filed in July 2012 and asked for a strike out. Then magically out of nowhere came a notice of discontinuance dated July 2012 and we have a letter from the court confirming strike out AND discontinuance.

 

 

A further abuse of process was that they then subsequently reinstated the same claim through Northampton against Mrs P only and then 2 weeks later, another identical claim through a different solicitor - same subject, 2 different claims - surely this is an abuse of process? If we didn't have CAG friends helping us, we could have ended up with two CCJs for the same debt!

 

 

Next thing to mention is that the current claim includes loan + overdraft. They original issued DNs for both and in Claimants recent WS, they say that Claimant is entitled to apply an unpaid item fee each time a payment is missed as per Section 6.3 of the Private Banking Terms and Conditions.

 

 

Isn't there a specific termination procedure for overdrafts, whether authorised or unauthorised?

 

 

Further in their WS, they say:

 

 

"the current account had insufficient funds to meet direct debit requests and as such, the current account became overdrawn. The Claimants contacted the Defendants advising them of this and requesting them to amend the position immediately. As this was not done, pursuant to section 6.5.2 the Terms and Conditions, the Claimant was entitled to immediately terminate the overdraft".

 

 

So they are saying that the account was terminated in 2009 and they issued a default notice in May 2009. There was no termination notice and then another default notice in April 2013 for the same "overdraft" - surely if the account has been terminated by their own admission, a subsequent default notice has to be non-compliant to say the least!

 

 

The final point possibly to include in the application notice is that they issued a "notice given in compliance with CCA 1974 because you are behind with sums payable under loan agreement" and then a failure to comply letter demanding payment 5 days from the date of the letter. They conveniently omit in their WS that they also issued a DN 4 weeks after the first letter and a few weeks before the failure to comply letter and this DN is defective.

 

 

All of this and we still have the ICO investigating false data reporting and the FOS investigating harassment.

 

 

Would appreciate some thoughts on the above and what to be asking the DJ to do e.g. strike it out before trial, hear it at trial and apply strike out, apply for costs, etc?

[AndyOrch]

The official procedure to terminate an overdraft is by issuing The Demand/Termination Notice (Notice served under Sections 76(1) and 98(1) of the CCA1974

 

 

With regards to all the other points they are for a WS or Defence and trial not an application dpac

 

Application and draft order example here in post #121

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?428900-Just-had-a-baby-..-Now-faced-with-Northampton-Claim-by-Lowell-Vanqius-**-Claim-struck-out-**/page7

 

Regards

 

Andy

[dpac123]

Thanks Andy, could you help with what to write in section 10 (evidence set out in the box below?)

[AndyOrch]

In the example provided section 10 deals with imposing sanctions subject to CPR r.3.4(2)© and CPR r.1.1(2)(f) failure to comply with directions...I have provided the correct CPR PDS in your case above...so refer to them and draft it similar to the example.

 

Have a go yourself...as this will help you understand what and why you are requesting it......I will of course check it for you.

 

Andy

[dpac123]

hi Andy, only got your update yesterday morning after the n244 was due so I had to take a stab without your input. i referenced cpr 3 and 38.7 and asked for a strike out. judge has looked at it and said he will deal with it first thing at the trial.

 

i was hoping NatWest were going to pull out because if the law/cpr is black and white, this case has already been struck out for non-compliance.

 

so it looks like the trial is going ahead on Friday - how should we prepare?

[AndyOrch]

Have you prepared a bundle...skeleton argument...you need to have all your arguments and evidence to hand for trial......just in case the application is dismissed...hopefully it wont be.

 

Andy

[dpac123]

no bundle yet - is this copied of the documents we need to back up our case?

hopefully the application will be dismissed - what reasons would it not be if they have regurgitated a struck out case?

[AndyOrch]

Yes a full paginated file in order and indexed...I would also carry copies of the previous claims and court orders.I would also prepare a costs order covering everything connected to the claimant even from previous claims.

 

" hopefully the application will be dismissed"

 

Is that a typo dpac ?

[dpac123]

i meant hopefully the case will be struck out!

[dpac123]

my main worry is a charging order and losing my house - i have kids aged 16 down to 4.