Abuse of process - Henderson v Henderson 1843 cited

[andydd]

Some interesting points (as you can see from my earlier posts, I'm in the exact opposite posiition, I'm at a Summary Judgment/Strike Out application hearing on Monday.)

 

In my case, the original claim was struck out (the course someone should follow is a set aside application, in my case, the claimant did that, but this too was struck out, his leaves only an appeal left which he didnt folow).

 

The troble with re-ligating is gthat it renders the strike out worthless and surely this is not what the courts intended, it is intetrested to note that in cases of discontinuance, there is options under CPR 38.7 to ask permission to 'have another go', there appears to be no such provisions for judged/struck out cases so one must assume that there really is a bar to further action (except under esceptional circumstances and even then its not clear whether someone should just start another case or seek the courts permission first (prob a wise move).

 

I really cant see that the OP here has any chance of success so thought should be taken of how to get out of this with the minumum of cost.

 

Andy

[assisted blonde]

HMMH I cant see negligence in this and only a very vague link to breach of contract (and I mean very) I agree all there would appear to be is an unhappy OP

[caledfwlch]

Reading the OP's posts, it half sounds like he believes that he failed the course as the Crane Operator was not performing his job properly?

 

In which case, I suspect, if the Operator was an employee of the Trainer, then there could be a cause of action.

 

But for some reason, he appears to be attempting to sue the Trainer, because whichever educational board runs/oversee's NVQ's in this particular industry will not allow you to do an NVQ without passing a particular course, via this trainer which the OP did not pass. And appears to be basing a claim on the Human Right to "Education" in which case, I should think it is WELL outside the jurisdiction of a normal, county court & the CCJ process?

[andydd]

..and I doubt it would get past the re-litigation/strike out procedure anyway.

 

Andy

[hmmh1978]

andydd, it is up to the court to decide what to do with the case and if the strike out was due to improperly pleaded proceedings, then why should the claimant be prejudiced by this and suffer no access to justice because they are not experts in law for example. The court has the power under CPR r. 3.4(6) to introduce finality to the strike out. Also, a strike out cannot be compared to discontinuance as that is the claimant conceding whilst a strike out is not the will of the claimant. Apologies if I sound like I am mooting.

 

assistedblonde, I would like to paraphrase what I stated with some bits in bold to show the many qualifiers as I believe the point of my paragraph was missed:

 

I think the OP should go seek professional guidance with all their documentation as I am not even sure there is a cause of action as mentioned but if there is a cause of action, it will probably lie on contract, hence my questions above, and maybe the tort of negligence. However right now, I am (sic) can't really see either except an unhappy student unfortunately.

So I am not sure why you replied to me in that context but I think there was a gap between what I said and what was interpreted.

 

FYI, I am sure you know, the tort of negligence protects interests in physical and mental health, reputation, property interests, economic relationships and public rights so I would not discount the fact that there is no tort.

 

I would not be confident to advise the OP based on their ramblings above as there is no documentation or coherence in their posts to back up their story either way hence go see a lawyer, it might be the best money they ever spent.

 

It is an interesting from a theoretical point of view though which is why maybe it has peaked a lot of people's interest including mine but my understanding is that the crane operator was employed by the trainer for the purposes of the test but I might be mistaken as I got lost a few times in the OP's posts.

[andydd]

hmmmh1978. Good points but there is of course the other sides point of view which may be why should he suffer the hassle of being vexxed again for the same course of action.

 

Also not really sure that CPR 3.4 (6) adds finality, it allows comments that the claim is without merit to be added and also a civil restraint.

 

I think discontinuance does have some relevance because there is a scenario where a claimant instead of discontinuing a claim can simply not pay a fee for example and just watch the claim be struck out (I bought this up in my SJ claim as I suspect this may be the case).

 

Anyway Monday evening Ill be a lot more sure as my hearing will be concluded, although I believe I have a stronger case than the defendant here, as there have been two strike outs and also I have proof that the claim would eventually fail due to technicalities in issuing demands for payment.

 

Andy

[hmmh1978]

Hey andydd, I hope that my point of view above was not taken as a personal attack on the merits of your case. Not at all, and if it was seen as thus, I humbly apologise for not clarifying myself better. I was only talking about the OP's case and his particular set of circumstances and as you rightly mentioned, there are other sides points of view. The judge will decide based on the facts of the case, whether a case should be struck out or not, and if yes, whether the appeal should go through or a new claim entertained. No two cases are the same hence why a court may allow it in one instance and not in the other.

 

I am sure we can debate these points to and fro however it would be so much better in a pub.

[andydd]

Nope not at all. Its interested to discuss points, especially as I am involved in a SJ/SO case, (although there is little I can change at this late date even if I wanted to), have you any experience of a SJ/SO hearing ?, I'm under the impression that no oral evidence will be given, (although I believe my written Statement of Case and evidence are strong enough), I also note that the respondant in my case hasnt filled any response (as per CPR 24.5) which cant be good for him !

 

Andy

[hmmh1978]

You will have to present the written evidence hence the CPR 32.6 rule, no oral evidence.

 

It is a matter of individual taste of the Master or DJ but the general rule is as follows.

 

As the applicant you will open the case which will consist of:

 

- introducing yourself and the advocate/solicitor for the respondent (common courtesy but as a LiP, you may be forgiven for this oversight).

- show what documentary evidence is before the court and refer to your skeleton argument if you have done one.

- You will mention points in your witness statement and authorities in favour of your case.

- You will deal with the respondent's arguments as well as points that the court may want clarification on.

 

Then the respondent's representatives will:

 

- then reply and base their case on their skeleton argument if present.

- they will also draw attention to their witness statement, weaknesses in your case and your authorities.

 

You are normally allowed a right to reply so make notes.

 

However, as mentioned, the judge can vary or miss out any step they want and actually change the order of the steps as well as interrupt and ask you a lot of questions to aid their clarification.

 

Because you are a LiP, it should be rather informal but don't take it for granted that you will get an easy ride.

 

Good luck.

[andydd]

Thanks.

 

Well, there has been no response at all from the respondent so Im not sure how they can bring up any argument in court now, its too late.

 

Think Ive got all bases covered which are :-

 

1. Claim is identical to previous claim about a year ago, same amount. (Ive quoted CPR 24 and CPR 3.4)

2. There is no real evidence, just a claim form stating I owe £x

3. In previous claim, a Peremptory 'unless' order was given, pay fee.

4. He didnt pay fee, claim struck out.

5. He applied for set aside, moaning he was busy, struck out by diff. judge for lack of evidence CPR 3.9

6. No appeal was made.

7. Judgment in my favour (for main claim, no mention of his counterclaim, but why would there be as it was struck out).

8. Now identical claim made

8. Ive pointed out all the above plus CPR 38.7 and res judicata - henderson v henderson, etc

 

also

 

9. His service charge demands are all invalid (wrong font size !), so nothing is actually owing, so another reason why claim will fail.

 

So hopefully thats enough to see it in my favour, weve both been before the judge before and Ive been mostly succesfull (in ground rent & service charge issues).

 

Andy

[assisted blonde]

hmmh, yes I may misread what you were saying, (having a really assisted blonde day) get what you are saying now and i agree that the OP needs to take legal advice, there are a number of these courses aome running for a day for experienced operators and others for 4 days for newbies, but they all say you have to pass to get a red card and you cant get a blue one until you have a red, its a bit like a driving test you cannot take a practical test until you have passed the theory, and people do fail.

 

But I do like the idea of a pub debate

[pop_gun]

Reading the OP's posts, it half sounds like he believes that he failed the course as the Crane Operator was not performing his job properly?

 

In which case, I suspect, if the Operator was an employee of the Trainer, then there could be a cause of action.

 

But for some reason, he appears to be attempting to sue the Trainer, because whichever educational board runs/oversee's NVQ's in this particular industry will not allow you to do an NVQ without passing a particular course, via this trainer which the OP did not pass. And appears to be basing a claim on the Human Right to "Education" in which case, I should think it is WELL outside the jurisdiction of a normal, county court & the CCJ process?

 

I would like to begin by thanking hmmh1978 for his earlier thought provoking post.

 

Caled, the crane operator was not just failing to do his job properly, he was refusing to do his job as well. The assessor who failed me said I had given a wrong hand signal and that the objects being moved were placed incorrectly. Lets look at both these reasons for failing me. there is a set standard of hand signals. If I didn't signal from this set, the crane operator would do nothing until he recognised a signal to do something. Therefore there is no such thing as a incorrect hand signal. It stands to reason if the crane operator was ignoring my signals or deliberately moving objects incorrectly they would be placed incorrectly.

 

The crane operator couldn't behave in this manner without the assistance of his colleagues (the assessor and the instructor).

 

To further illustrate my point, I'am partly employed as a traffic marshall (I direct traffic on and off a construction site). Anyone with a hole in their a*** could do it. There is a site rule which states all traffic leaving the site must turn left. But turning right is more convenient. I direct traffic left but it passes me on my right. Am I responsible for the vehicle turning right?

 

 

 

Assistedblonde, there are slinger\signaller course that guarantees a pass as long as the company putting the student through the course requests it. This is how I got my traffic marshall license.

 

A stay of proceedings or a discontinuance are my best bet unless I can find someone to do my PoC. No solicitor will take the claim as they deem it small fry and too complicated to plead.

Edited May 11, 2012 by pop_gun

[andydd]

Hi all.

 

I know Ive hijacked this thread a bit.

 

Ive just returned from my Summary Judgment/Strike Out hearing.

 

I won and it went pretty much as I expected, (Solictor screwed up and hadnt filed any evidence). Judge wouldnt allow a stay so gave judgment in my favour.

 

Point she raised were, original claim struck out, they asked for set aside..this too struck out..they shoulkd of appealed if they didnt like decision, instead they waited n started new claim..this was an abuse of process. I did quote Henderson v Henderson but didnt even get that far.

 

Bit dissapointed with my costs..only £200..and Judge was under impression that Litigant in Person rate is still £9.25. she was wrong ..its been increased to £18 !!

 

Andy

[renegadeimp]

You should have told her its been raised and showed the proof andy.

 

Congrats though. Just shows persistence and well thought out research goes a very long way

[hmmh1978]

Congrats andydd however I didn’t expect any other result.

 

If the judge was not aware of the LiP rates, it stands to reason that they were also weak in other areas of law and the developments in it.

 

@ pop_gun, apologies however I cannot give you a recommendation either way as your case needs someone to actually go through the documentation. Most solicitors will draw up the particulars of claim for you if you accept the hourly rate outside of the claim as this is small claim and thus fixed costs.

[andydd]

You should have told her its been raised and showed the proof andy.

 

Congrats though. Just shows persistence and well thought out research goes a very long way

 

Didnt have the proof with me..I assumed being a Judge she'd keep upto date with current law and CPR developments, didnt actually affect my costs as she decided that a solicitor would charge £300 and I could have 2/3's of that (she knew about the 2/3's rule but not new LiP !)...plus some court fees.

 

Cant compalin though, went according to plan, their claim struck out and £280 for me to spend

 

Ive written a letter to her/the court pointing out the new rules (57th CPR Amendment) so maybe that will help future LiP's

 

Andy

[pop_gun]

There's a bit more to the story, the original claim was struck out but there was another claim attached to the original claim. The original claim was the lead claim. The judge despite the second claim not having a defence. The second defendant did a acknowledgement of service, but never defended the claim. Can a DJ strike out a claim which hasn't been defended?

 

On the court order for the original claim it only states the original claim struck out, not the second. Has the DJ erred and can I still enter judgement on the second claim?

[Ganymede]

There's a bit more to the story, the original claim was struck out but there was another claim attached to the original claim. The original claim was the lead claim. The judge despite the second claim not having a defence. The second defendant did a acknowledgement of service, but never defended the claim. Can a DJ strike out a claim which hasn't been defended?

 

On the court order for the original claim it only states the original claim struck out, not the second. Has the DJ erred and can I still enter judgement on the second claim?

 

 

What does the actual strike out Order say again?

 

If it just says something like "the Claimant's claim be struck out" and both Defendants are named in the top right box then it is probably struck out against both.

[pop_gun]

What does the actual strike out Order say again?

 

If it just says something like "the Claimant's claim be struck out" and both Defendants are named in the top right box then it is probably struck out against both.

 

No mention of the second defendant on the court order. I made the second claim through MCOL.

 

Sorry to go over this, but I was wondering if there was a court case involving responisibility for a person's own actions over that of someone directing them to do something. In other words when are we legally held accountable for our actions.

 

P.S can I have the claim transfered to the high court via a appeal?

[Ganymede]

Ah ok so you made two separate claims with two separate claim numbers?

 

Based on what you have said so far you had no chance of an appeal.

[hmmh1978]

I still don't understand the part about the two defendants and two claims so Ganymede is a smarter person than I am.

 

The point about the appeal is that at the end of the hearing once the judge has given the judgement, you have to ask for permission to appeal. Regardless of their answer, you should also get form N460 which should list the reasons for refusing or allowing the appeal. You will need that to lodge it with your appeal bundle. If you did not do that, and it has been past 21 days since the judgment with no application for an extension, then you may be too late for an appeal.

 

HMMH

[Ganymede]

I think what pop_gun is saying is that he issued one claim and then later separately issued against a different Defendant but for a similar/same claim. Hence two separate claims with two separate claim numbers for essentially the same claim.

[pop_gun]

The defendant allows other companies to perform it's slinger/signaller course. when the first defendant stitch me up, I took the course with the second defendant. The second defendant found out I had taken the course with the first defendant as all students have to be registered on the first defendants servers. Because I had passed the theory test my details were still active and the second defendant couldn't register me as a new student. They phoned up the first defendant. The defendant employs the same people to conduct the test ANYWHERE in england. So when the second defendant phoned the first defendant they spoke to the people directly responsible for failing me. The second defendant refused to train any of the students until the last day of training. I was the only student to fail the test. There is more to this but I think you get the general idea.

The second defendant hasn't defended the claim because it believes the two students who passed would act as witnesses against them.

[pop_gun]

Court's power to make order of it's own initiative.

 

3.3 (4)

 

The court may make an order of it's own initiative without hearing the parties or giving them an opportunity to make representations.

 

Judging by this the Judge can throw out any claim he or she likes regardless of whether the claim has been defended or not.

 

What stops a Judge from abusing his\her initiative?

[andydd]

Yes. Courts may use 3.4 to strike out of their own inititiave....I was hoping they would do this in my case, but they didnt so I had to make an summary judgment/cpr 3.4 strike out application.

 

As for what stops a judge from abusing it ?. Why would they ? In any event you are always fee to make a set aside application.

 

Andy