Hfo CCJ/CO now sold to LInk

[DonkeyB]

Thanks for looking in PT – your favourite new friends.

 

This WS from the claimant has arrived today, PT. Should Riolto be asking for an adjournment? How should his response to their response be brought to court? Should he be asking that their WS be disallowed?

[pt2537]

Thanks for looking in PT – your favourite new friends.

 

This WS from the claimant has arrived today, PT. Should Riolto be asking for an adjournment? How should his response to their response be brought to court? Should he be asking that their WS be disallowed?

whens the trial?

[riolto10]

whens the trial?

hearing tomorrow at 2pm

[pt2537]

hearing tomorrow at 2pm

is it a fast track trial? or Small claims?

 

Was leave granted for further witness evidence? it seems to me that this is tantamount to hi jacking, and frankly the Court should not allow it. However, in reality, if they have Counsel presenting their arguments id fear that they will get it into their evidence and the trial may go ahead, it depends on the judge.

[DonkeyB]

Think it’s fast track. £15k +.

[riolto10]

is it a fast track trial? or Small claims?

 

Was leave granted for further witness evidence? it seems to me that this is tantamount to hi jacking, and frankly the Court should not allow it. However, in reality, if they have Counsel presenting their arguments id fear that they will get it into their evidence and the trial may go ahead, it depends on the judge.

 

application for summary judgement re my defence no leave granted I had to have my w/s in seven days before hearing they did not send me copy of their w/s I had tto request it this is their second witness statement

[DonkeyB]

I don’t think any counsel would want to present that evidence!

[volvodriver]

Would it not be OK for the OP to accept the late fling and then rebut it with a carefully worded sheet of A4 which he can read out.

 

If the Claimant then has no standing the judge should dismiss. If he does not then there is a cast iron win at appeal.

 

Vdr

[riolto10]

Think it’s fast track. £15k +.

no track decided that was down for a hearing in May

 

Would it not be OK for the OP to accept the late fling and then rebut it with a carefully worded sheet of A4 which he can read out.

 

If the Claimant then has no standing the judge should dismiss. If he does not then there is a cast iron win at appeal.

 

Vdr

 

need to get it down first any ideas to start it of and then refine it thanks

[pt2537]

Think it’s fast track. £15k +.

oh

 

Its summary judgment??

 

Then the playing field changes,

 

Summary judgment is fairly easy to defeat.

 

You dont need to show that you will win, only that you MAY win at trial to defeat SJ applications

 

What arguments do you have to overcome their SJ application?

[DonkeyB]

I’ll give it to you refined! The main points are above, and the original WS needs some clarifications.

[pt2537]

if your defence lacks merit then the appropriate order would be leave to amend, not summary judgment

[DonkeyB]

http://i1142.photobucket.com/albums/n604/riolto/scan0006.jpg

 

recieved witness statement from court could someone look at hfo s statement and help me with mine or comment on it

http://i1142.photobucket.com/albums/n604/riolto/scan0007.jpg

http://i1142.photobucket.com/albums/n604/riolto/scan0008.jpg

http://i1142.photobucket.com/albums/n604/riolto/scan0009.jpg

http://i1142.photobucket.com/albums/n604/riolto/scan0010.jpg

 

http://i1142.photobucket.com/albums/n604/riolto/scan0013.jpg

 

Links to their WS, PT.

[riolto10]

I’ll give it to you refined! The main points are above, and the original WS needs some clarifications.

thanks donkey not only dealing with this but coming down with the flu banging head and all

[DonkeyB]

Sorry, I’d forgotten is was an SJ. Phew.

[pt2537]

Ok

 

There are sooo many triable issues in this case,

 

But i dont know what to suggest to be honest, it seems to me that they have a prospect of success, and there is a risk of costs against

 

There is so much preparation work here to do if i am honest.

 

This is what Blackstones says on Summary Judgment

 

 

34.10 Rule 24.2 of the CPR 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 compelling reason why the case or issue should be disposed of at a trial.

 

Chapter 34 Summary Judgment

 

An application for summary judgment is decided applying the test of whether the respondent

has a case with a real prospect of success, which is considered having regard to the overriding

objective of dealing with the case justly. This has been said to be consistent with the need for a

fair trial under art. 6(1) of the European Convention on Human Rights (Three Rivers District

Council v Bank of England (No. 3) [2001] UKHL 16, [2003] 2 AC 1). Whether there is a real prospect

of success is the same test as that applied in applications to set aside default judgments (see

20.11 and E. D. and F. Man Liquid Products Ltd v Patel [2003] EWCA Civ 472, [2003] CPLR 384).

In Swain v Hillman [2001] 1 All ER 91 Lord Woolf MR said that the words ‘no real prospect of

succeeding’ did not need any amplification as they spoke for themselves. The word ‘real’

directed the court to the need to see whether there was a realistic, as opposed to a fanciful,

prospect of success. The phrase does not mean ‘real and substantial’ prospect of success. Nor

does it mean that summary judgment will only be granted if the claim or defence is ‘bound to

be dismissed at trial’.

A claim may be fanciful where it is entirely without substance, or where it is clear beyond

question that the statement of case is contradicted by all the documents or other material on

which it is based (Three Rivers District Council v Bank of England (No. 3)). The judge should have

regard to the witness statements and also to the question of whether the case is capable of

being supplemented by evidence at trial (Royal Brompton Hospital NHS Trust v Hammond [2001]

BLR 297). The question of whether there is a real prospect of success is not approached by

applying the usual balance of probabilities standard of proof (Royal Brompton Hospital NHS Trust

v Hammond). Applying a test of whether the claim is arguable will give grounds for appeal

(Sinclair v Chief Constable of West Yorkshire (2000) LTL 12/12/2000).

In E. D. and F. Man Liquid Products Ltd v Patel Potter LJ at [6] regarded the terms ‘real prospect’

and ‘realistic prospect’ as interchangeable. Lord Woolf MR in Swain v Hillman said that

summary judgment applications have to be kept within their proper role. They are not meant

to dispense with the need for a trial where there are issues which should be considered at trial.

Further, summary judgment hearings should not be mini-trials. They are simply summary

hearings to dispose of cases where there is no real prospect of success. Without allowing the

application to become a mini-trial, there are occasions when the court has to consider fairly

voluminous evidence in order to understand the facts that are in issue (Miles v ITV Networks Ltd

[2003] EWHC 3134 (Ch), LTL 9/12/2003).

 

Burden of proof

 

An important issue on many applications for summary judgment is whether the burden 34.11

of proof is on the applicant to show the respondent’s case has no real prospect of success, or

whether the burden of proof rests with the respondent to establish a case with a real prospect

of success. In E. D. and F. Man Liquid Products Ltd v Patel [2003] EWCA Civ 472, [2003] CPLR 384,

Potter LJ said at [9] that the burden of proof is on the applicant to show the respondent’s case

has no real prospect of success. Strictly this is no more than an obiter dictum, because the

learned judge was dealing with an application to set aside a default judgment, and was

contrasting his view of the burden of proof on the two types of application. Whether Potter

LJ’s view is correct is open to question.

Under the old rules the incidence of the burden of proof was perfectly clear, because RSC,

ord. 14, r. 3(1), said in terms: ‘Unless . . . the defendant satisfies the court with respect to the

claim, or part of the claim, to which the application relates that there is an issue or question in

dispute which ought to be tried . . . the court may give such judgment for the plaintiff ’.

The present rule, CPR, r. 24.2, is not explicit on the burden of proof, saying: ‘The court may

give summary judgment against a [defendant] . . . if (a) it considers that (ii) that defendant

has no real prospect of successfully defending the claim or issue’ (and similarly if the

application is against the claimant). Lord Woolf ’s Final Report says, at p. 123, regarding

applications for summary judgment:

 

 

The test for making an order would be that the court considered that a party had no realistic prospect of

succeeding at trial on the whole case or on a particular issue. A party seeking to resist such an order

would have to show more than a merely arguable case; it would have to be one which he had a real

prospect of winning.

The wording of PD 24, paras 4.1 and 4.2, when first issued, made it clear that the burden of

proof was on the respondent, providing:

4.1 Where a claimant applies for judgment on his claim, the court will give that judgment if:

(1) the claimant has shown a case which, if unanswered, would entitled him to that judgment, and

(2) the defendant has not shown any reason why the claim should be dealt with at trial.

4.2 Where a defendant applies for judgment in his favour on the claimant’s claim, the court will give

that judgment if either:

(1) the claimant has failed to show a case which, if unanswered, would entitle him to judgment, or

(2) the defendant has shown that the claim would be bound to be dismissed at trial.

Thus, under the old para. 4.1(1), a claimant applying for summary judgment had to adduce

evidence establishing his claim (but not disproving any purported defence), as is clear from

the phrase ‘which, if unanswered’.

In Swain v Hillman [2001] 1 All ER 91 Lord Woolf MR commented on the revocation of the

original paras 4.1 and 4.2 of PD 24 as follows:

The reason for that deletion is obvious. It was perceived that there was a conflict between paras 4.1 and

4.2 and the provisions of Part 24. The PD was laying down a different standard which indicated that the

approach required was one of certainty. The judge could only exercise his power under Part 24 if he was

certain or, to read the actual language of the PD, he thought that a claim ‘would be bound to be

dismissed at trial’. If that was thought to be the effect of the PD, that would be putting the matter

incorrectly because that did not give effect to the word ‘real’ to which I have already referred.

Paragraphs 4.1 and 4.2 were deleted because they imposed, or were perceived to impose, too

high a standard of proof on an application for summary judgment. It was not because they

imposed the wrong burden of proof. The true burden of proof, it is suggested, is still on the

respondent to show a case with a real prospect of success.

 

 

 

Complex claims

 

34.12 Complex claims, cases relying on complex inferences of fact, and cases with issues involving

mixed questions of law and fact where the law is complex are likely to be inappropriate for

summary judgment (Three Rivers District Council v Bank of England (No. 3) [2001] UKHL 16, [2003]

2 AC 1; Arkin v Borchard Lines Ltd (No. 2) (2001) LTL 21/6/2001). The high standard of proof

required at trial in fraud claims means that it will be difficult to succeed on a summary

judgment application in such a case (Allied Dunbar Assurance plc v Ireland [2001] EWCA Civ 1129,

LTL 12/6/2001).

If an application for summary judgment involves prolonged serious argument, the court

should, as a rule, dismiss it without hearing the argument, unless it harbours doubt about the

soundness of the statement of case and is satisfied that granting summary judgment would

avoid the need for a trial or would substantially reduce the burden of the trial (Three Rivers

District Council v Bank of England (No. 3); Partco Group Ltd v Wragg [2002] EWCA Civ 594, [2002]

2 Lloyd’s Rep 343, at [28]; Equitable Life Assurance Society v Ernst and Young [2003] EWCA Civ 1114,

[2003] 2 BCLC 603). Summary judgment is also inappropriate in cases in areas of developing

jurisprudence, which should only be decided on the basis of actual findings of fact (Farah v

British Airways plc (1999) The Times, 26 January 2000; Barrett v Enfield London Borough Council [2001]

2 AC 550).

 

Defence on the merits

 

34.13 On an application for summary judgment by a claimant, the defendant may seek to show a

defence with a real prospect of success by setting up one or more of the following:

Chapter 34 Summary Judgment

(a) a substantive defence, e.g., volenti non fit injuria, frustration or illegality;

(b) a point of law destroying the claimant’s cause of action;

© a denial of the facts supporting the claimant’s cause of action;

(d) further facts answering the claimant’s cause of action, e.g., an exclusion clause, or that the

defendant was an agent rather than a principal.

An example under the old rules was Mercer v Craven Grain Storage Ltd [1994] CLC 328. The

claimant was a farmer who deposited a quantity of grain with the defendant storage company.

Later, the claimant requested redelivery, but the defendant was only able to deliver a small

fraction of the grain. The defendant alleged that the claimant had entered into an agreement

with a marketing company, and that the missing grain had been withdrawn from the store

with the authority of the marketing company. By a bare majority it was held that this defence

raised triable legal and factual issues, and leave to defend was given. With the change in the

test, this case would now perhaps result in a conditional order being made.

 

Points of law and construction

 

Although summary judgment applications should not be allowed to turn into mini-trials, 34.14

where the case turns on an issue of construction of a term in a contract the court will usually

determine the point and give judgment accordingly (Wootton v Telecommunications UK Ltd

(2000) LTL 4/5/2000).

Where a clear-cut issue of law is raised by way of defence in an application for summary

judgment, the court should decide it immediately. This is so even if the question is, at first

blush, of some complexity and therefore will take some time to argue fully (see Lord Greene

MR in Cow v Casey [1949] 1 KB 474). Not deciding a case once full argument has been

addressed to the court on the issue will result in the case going to trial, where the argument

will be rehearsed again, with consequent delay and unnecessary expense. Likewise, where the

point at issue is one of the construction of contractual documents, the court will decide the

point on the summary judgment application, provided it is relatively straightforward (Coastal

(Bermuda) Ltd v Esso Petroleum Co. Ltd [1984] 1 Lloyd’s Rep 11). In GMAC Commercial Credit Ltd v

Dearden (2002) LTL 31/5/2002 summary judgment was given to the claimant against four of

the defendants, with a conditional order against the fifth defendant. The claim was to enforce

personal guarantees given by directors to secure borrowing by their company. It was held that

defences of economic duress had no real prospect of success, the claimant having acted in

good faith and its conduct not going beyond what was normal and legitimate in commercial

arrangements.

However, it is quite a different matter, per Lord Donaldson of Lymington MR in R. G. Carter

Ltd v Clarke [1990] 1 WLR 578:

if the issue of law is not decisive of all the issues between the parties or, if decisive of part of the

[claimant’s] claim or of some of those issues, is of such a character as would not justify its being

determined as a preliminary point, because little or no savings in costs would ensue. It is an a fortiori

case if the answer to the question of law is any way dependent upon undecided issues of fact.

Summary judgment should also be refused where the point requires protracted argument

(Home and Overseas Insurance Co. Ltd v Mentor Insurance Co. (UK) Ltd [1990] 1 WLR 153). Summary

judgment was refused in System Control plc v Munro Corporate plc [1990] BCLC 659, in which it

was held that whether the claimants had irrevocably elected to treat a contract as discharged,

or whether they could enforce it, was an issue which should be decided at trial. In I-Way Ltd v

World Online Telecom Ltd [2002] EWCA Civ 413, LTL 8/3/2002, the claimant sued to recover the

benefits it alleged were due to it under an oral variation of a written contract. The defendant

resisted the claim relying on a clause of the written contract that there was to be no addition

or amendment to the contract unless it was in writing and signed by both parties. An

application by the defendant for summary judgment against the claimant was dismissed,

because there was no direct authority on the issue whether the parties could prevent oral

variations of a contract by use of such a clause, and an important point of principle such as

the one in issue needed to be tried rather than determined by summary judgment.

 

Disputes of fact

 

34.15 Where there are issues of fact, which, if decided in the respondent’s favour, would result in

judgment for the respondent, it is inappropriate to enter summary judgment, even if there is

substantial evidence in support of the applicant’s case (Munn v North West Water Ltd (2000) LTL

18/7/2000). Primarily the court will consider the written evidence adduced by the parties, and

if it discloses a dispute with a real prospect of success, the summary judgment application will

be dismissed. However, the court is not always obliged to accept written evidence at face

value, and may disregard evidence which is incredible (see 32.13).

In Public Trustee v Williams (2000) LTL 10/2/2000 the claimant sought to recover for a deceased’s

estate the sum of £74,000 which was received by one of the defendants and used by her to buy

a house. The evidence of the recipient filed in response to an application for summary

judgment was at its best unclear and at its worst confusing as to where she thought the

money had come from. However, there was no clear evidence that the money had come from

the estate, and it was held it was not a suitable case for summary judgment. In Bates v Microstar

Ltd (2000) LTL 4/7/2000 summary judgment had been granted based on a purported contract

written on hotel notepaper. There were two other documents purporting to be the contract

between the parties, and a number of the terms in the hotel notepaper document were

arguably too vague. The judgment was set aside on appeal. In Mehdi v Bates (2001) LTL 3/12/2001

the contractual documentation was unclear on the issue of whether the contract had

been entered into by the defendant personally or by the defendant’s company. It was held

that the judge had not been justified in entering summary judgment against the claimant on

the basis that it was unlikely that a businessman would have entered into this contract

personally.

Claims involving allegations of fraudulent or deceitful misconduct which are not admitted

and which are not capable of being substantiated by inference from the documentary or

written evidence are inappropriate for summary judgment (Esprit Telecoms UK Ltd v Fashion

Gossip Ltd (2000) LTL 27/7/2000).

Cases involving disputes over whether employers are vicariously liable for the tortious acts

of employees who might not be acting in the course of their employment are fact-sensitive

and inappropriate for summary judgment (Cercato-Gouveia v Kiprianou [2001] EWCA Civ 1887,

LTL 30/11/2001).

Where the applicant has the burden of proving a disputed issue, such as the reasonableness

of an exclusion clause under the Unfair Contract Terms Act 1977, it will be difficult for

the applicant to establish that the respondent has no real prospect of success (see, for example,

Lalji v Post Office Ltd [2003] EWCA Civ 1873, LTL19/12/2003).

In a proprietary estoppel claim, where the context and meaning of the words used needs to be

investigated, summary judgment is inappropriate (Century (UK) Ltd SA v Clibbery [2003] EWCA

Civ 1374, LTL 17/7/2003). Where there is no arguable evidence on an essential element of the

claim (or defence), or where a claimant will be unable to establish any loss flowing from a

breach not actionable per se, summary judgment should be entered (Morshead Mansions Ltd v

Langford [2003] EWHC 2023 (QB), LTL 29/8/2003). In Shamil Bank of Bahrain EC v Beximco

Pharmaceuticals Ltd [2003] EWHC 2118 (Comm), [2003] 2 All ER (Comm) 849, a defence to a claim by

the bank for repayment of moneys lent was that there was an oral agreement suspending

payment until a further agreement had been reached. This was dismissed as fanciful, as it

made no commercial sense for a bank to enter such an arrangement, because if the parties

failed to reach a further agreement the defendants would be released from liability (different

issues were raised on the appeal, [2004] EWCA Civ 19, [2004] 1 WLR 1784).

 

[DonkeyB]

Surely simply the provable facts that they claim to have subsequently assigned when not having a CC Licence and the impossible NoA give grounds that there are triable issues and therefore the SJ should fail?

 

We can prove both these points tomorrow with companies house and OFT docs, and their own evidence.

[pt2537]

It turns on the Defence also,

 

If the defence was a load of twaddle and hog wash, then the court would be right to grant summary judgment, even if the Defendant has a Defence in his mind, if he doesnt show it on the papers he faces defeat

[DonkeyB]

So an unbreakable response/additional WS is required for tomorrow?

 

Is it possible to turn it on them and request strike out of the claim without an application via an N244?

[pt2537]

Now that depends on how good an advocate the OP is and how much he knows about making an application off the cuff at the hearing.

 

Its all very well us sitting here saying this is wrong thats is right, but we have to remember its not us stood in court there tomorrow,

 

So i dont know really, i hope the Blackstones quote assists, its really the best i can do

Is it possible to turn it on them and request strike out of the claim without an application via an N244?

[riolto10]

now we need to deal with them tomorrow any ideas pm me please

[DonkeyB]

Thanks pt, I think I get your drift. Working on it.

[pt2537]

This may assist

 

from a claim which we defended and which they claimed ireland were the owners and claimant

 

3.3 The Claimant company did not hold a Consumer Credit Licence with the Office of Fair Trading until 26th March 2008 as required by the Consumer Credit Act 1974 to take part in licensable activities. Any activities carried out prior to this date such as debt collection would give rise to a criminal offence pursuant to s39 Consumer Credit Act 1974.

 

[DonkeyB]

Thanks mate. Also relying on future assignment not being allowed.

[pt2537]

Thanks mate. Also relying on future assignment not being allowed.

 

 

ID have a good look at the blackstones text though mate, because that tells you how to defeat a SJ App