Everlasting Boilers Claimform - ***Claim Struck Out ***Now a 3rd and 4th Claim

[AndyOrch]

No worries.... just give me a nudge nearer the defence due date (2/3 days before)

 

 

Andy

[leerob695]

No worries.... just give me a nudge nearer the defence due date (2/3 days before)

 

 

Andy

 

Hi Andy Appreciate the Help

My computer has gone Kaput and stopped working soi now have limited access to a real PC so to speak

Im back at work on Tuesday so I dont suppose there is and chance of some help with the Defence again so i can send it off and put my mind at rest ?

 

Really appreciate the help so far

[AndyOrch]

Tomorrow Lee.

 

 

Andy

[AndyOrch]

Defence

 

1. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

2. The Claimant has not complied with paragraph 3 of the PAPDC (Pre Action Protocol) Failed to serve a letter of claim pre claim pursuant to PAPDC changes of the 1st October 2017.It is respectfully requested that the court take this into consideration pursuant to 7.1 PAPDC.

 

3. The claimants claim is denied having previously issued the same claim twice already on the same named defendants, 26th Sept 2014 which they Discontinued on 31-10-2014 and on 28th April 2017 which was struck out by District Judge xxxxxxx on 3-Nov 2017 in the xxxxxxxxx county court, claim number xxxxxxxxx

 

3 . The claim was Struck Out on 3-Nov 2017 by the aforesaid District Judge. Therefore the claimant is precluded from reissuing the same claim pursuant to res judicata and therefore is barred from re-suing the same parties on the same cause of action.

 

4.For the court to allow a third claim which having been adjudged and struck out would amount to an abuse of process on the basis of issue estoppel and/or cause of action estoppel.The claimant is aware and has been provided with a further copy of judgment dated 3-Nov 2017 but has disregarded it and issued a further claim irrespective.

 

5. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.It is respectfully requested that the court dismiss this claim and award an adverse costs order in the defendants favour.

[leerob695]

Many Thanks Andy

 

Just a case of playing the waiting game again now i guess

[AndyOrch]

Ideally it shouldn't get to allocation stage if the court act appropriately

[leerob695]

Received this in the post today

looks like its gone to allocation stage for some reason

Mentions If i believe that this track is not the appropiate track for the claim i must complete box c1 on the 180 Form and explain why

Im presuming that i just need put the defence in the box again ?

Any idea why as to where is says i have filed a defence it is crossed out?

 

What Now?

[AndyOrch]

Did you not already do this before on the previous claims ? Standard practice...the claimant has informed the court they wish to proceed to allocation.

No you dont put your defence on the form.

 

The reason they have not included a copy of your defence is because your the defendant and already have a copy.......that is for the claimant on their copy.

 

No to mediation

 

yes to small claims track.

 

1 witness yourself (or 2 if its a joint claim)

 

State your local county court

 

The rest is self explanatory tick boxes which you have already done for your previous 2 claims...run 3 copies ...court claimants/ sol....file

 

 

Use the following to complete on your pC .....print 3 copies.

 

https://www.consumeractiongroup.co.uk/forum/showthread.php?406099-LEGAL-N180-Directions-Questionnaire-(Small-Claims-Track)-**Correct-at-Sept-2016**

 

 

Andy

[leerob695]

My apologies Andy

I was under the misunderstanding after reading your reply "It shouldnt get to the Allocation Stage" that it wouldnt go to this part

I presume the allocation stage is after i have filled in the N180 form in

thanks Again

[AndyOrch]

Correct....I only implied it shouldn't...but then again this claimant isn't the norm....given that they spent more on litigation than the value of the boiler up to now:-)

[leerob695]

Thanks

 

Ive filled it in and have copied both the strike out notice and the discontinue one and added that to it as well

fingers crossed

[AndyOrch]

No dont attach anything...they go with your witness statement

[leerob695]

Afternoon all

After being transferred to Grimsby county court

I today have received a "Notice of preliminary Hearing" on the 8th of may

10 mins have been allowed for the hearing

No mention of any evidence to put together like last time

Should I take the notice of discontinuance from the first case and the strike out judgment from the second case with me?

 

Feels like going around in circles again now

 

Thanks in advance

[AndyOrch]

It will be a case management conference...obviously the court are curious also....take all your files...previous claims ...NoD and strike out notices

[leerob695]

Right thats me all set for tommorow

Ive got NOD strike out notice and the 2 previous claim forms and the letter that says that it was agreed to waiver the arrears at the last court case (Which it wasnt it was just struck out)

Anything else i need like all my previous evidence?

is there anything i need to say in relation to not allowing it to be took to court a third time or will the judge be annoyed if i bring it up?

just want this putting to bed finally

[BankFodder]

Hope you don't mind me cropping up with a little bit of advice about your file.

 

Judges hate to be confronted by litigants who have to take time to find things in their file. The typical scenario is "Hang on a minute it's here somewhere… No, maybe it's there… I'll find it in a minute… Blah blah". Especially with a 10 minute hearing, you just can't afford to look so disorganised and to take up the valuable time of the court and to give the appearance that you are a rank amateur (which you are of course!).

 

Have all your papers set out in a ring binder. In a logical order which you understand. The best thing is to have them in chronological order. Have lots of dividers with little tabs on. Have the whole thing indexed. This means that you do a spreadsheet and you identify every document you have. In the leftmost margin you put numbers one, two, three, and then each document is numbered as well. Write the number of the document at the bottom or the top right-hand corner so it is easily visible. So your index sheet would be several columns –

 

Number, date, description of document.

Description of document simply needs to be letter from X to Y, N OD, claim form, blah blah. Nice short descriptions.

 

Your index sheet should be seller taped onto the front of the ring binder and also a copy in the first page.

 

If you need a document then you should be able to find it easily by looking down your index sheet, identifying the document, seeing what number it is and then going immediately to that number document in the file. If you take the document out of the file then make sure you replace it at exactly the same place.

 

It is essential when dealing with documents in a court, that you have a file that you understand and that you can access any part of it quickly and easily without missing a beat. This is the way to do it.

 

If you haven't arranged your file like this then I suggest that you spend some time today doing that. You will be very pleased that you did.

 

So the way you prepare the file is that you assemble all the documents in chronological order. When they are in order – then you number each one. When they are all numbered, you then enter them into your spreadsheet. You then clip them all into your ring binder. If later on you need to introduce any more documents, then put them in the correct position in the file and call them 3a, 3b, 10a, 10b, etc.

 

If you do this, not only will you impress the judge, but you will feel more relaxed and more confident that you can deal with things which come up during the hearing. You should always use this system whether it is a pre-trial hearing or at the trial

[BankFodder]

... and to add - take everything.

People who don't take a document and then have to tell the court that they don't have that one because they didn't think they would need it, make themselves look really stupid.

[leerob695]

Many Thanks for the Advice

 

Ive done that and im just hoping that the judge sees the discontinuance and then the strike out and finally puts it to bed

[AndyOrch]

Good luck today leerob

 

Regards

 

Andy

[leerob695]

Just been in judge says it isn't abuse of process or come under res judicata

Because they have written all arrears off previous to the strike out case last time

And now have sent me a formal default notice

so the claim is different!

He has given them 14 days to file an amended POC

And I need to get another defence put together

Any help appreciated

[AndyOrch]

What has writing the arrears off got to do with it...its the same claim ?

 

Why has he requested the claimant to submit an amended particulars of claim...so it does not look like the same particulars ?

 

The amount claimed will still be the same.

 

Oh and you cant issue a default notice after litigation..the agreement has ended.

 

Andy

[leerob695]

I've no idea but he said because they have written the arrears off and now sent a default notice for 3 missed payments it makes it a new claim and he is allowing it

The amount claimed has been different on all 3 claims

Says it's a new claim even though it is the same boiler and the same ref they use on all

3 cases

 

I'm at a loss now

I will post up what he has given to both parties when I get home

[AndyOrch]

Please do

[leerob695]

This is what was given to me at the end of the session

To me it is still the same claim like the others as it uses the same ref number for them and mentions the same conditional sale agreement

[AndyOrch]

It is the same claim......only one Everlasting Boiler claim and only one boiler involved...nothing has changed.

 

But the DJ has ordered they change the wording of the particulars...not sure how they can do that as the issues remain the same.

 

You simply revert back to a mix of your previous 2 defences......in theory they will either discontinue or it will be struck out...again...nothing has changed.