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numbers666

Case dismissed, SC track, Solicitors now having 2nd go...

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If a claim was dismissed, can the solicitors have a 2nd bite ?

 

POC are identical ?

 

Can you advise on CPR or any case law applicable.

 

Old utilities bill circa 2010, value 1500.00

 

Final reading provided, final supposed bill paid.

 

Came out of blue. Defended grounds back billing rules, produced final bill in court that was paid.

 

 

 

Claimant wanted to not go before judge in meeting before hearing, I insisted we did.

 

Judge dismissed case.

 

Any help appreciated...

 

C

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This abbreviated account is not very helpful. You refer to back billing rules so are you talking about a utilities company? Which company are you talking about? Which solicitors are you talking about? Please will you give us all the details


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Generally no.

 

Ive had 2nd try attempts thrown out, there is some recemt good case law about this, lemme find my defence.

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Here ya go

 

10. Where the issues raised in an earlier claim are identical to the issues raised in a later claim, there is an absolute bar on the later proceedings unless fraud or collusion is alleged (Arnold v National Westminster Bank plc [1991] 2 AC 93). Where an issue decided in a previous claim between the parties is central to a second claim between the same parties, the whole second claim will be struck out (Kennecott Utah Copper Corporation v Minet Ltd [2002] EWHC 1622 (Comm), [2003] PNLR 18). Issue estoppel applies where an order is made, and it does not matter whether the order was made by consent or after argument (Lennon v Birmingham City Council [2001] EWCA Civ 435, LTL 27/3/2001).

 

11. The White Book comments that consent should be only be given to re-litigate a previously discontinued claim if:-

The Defendant has misled or tricked the claimant

Important new evidence has come to light

There has been a retrospective change in the law

None of the above points apply to this claim.

 

12. The White Book also states “As a matter of common sense, where a claimant who has brought and then abandoned a claim ought not as a general rule to be allowed to start another claim arising out of the same facts.”

 

13. In Westbrook Dolphin Square Ltd v Friends Provident Life Assurance Ltd. 2011 EWHC 2303 (6) it was held that it was an abuse of process for the claimant to attempt to re-litigate a previously discontinued claim. The court ruled: (1) The principles identified by the maxims nemo debet bis vexari pro una et eadem causa (no one should be vexed twice in respect of one and the same cause) and interest reipublicae ut sit finis litium (it is in the public interest that there be an end to litigation) should inform the court’s approach to CPR 38.7. It followed that there was an analogy between the principles to be applied to an application under CPR 38.7 and those applied by the courts under CPR 3.4(2)(b) with respect to Henderson v Henderson, re: abuse of process.

 

14. Since the claim is for the same amount as before then the doctrine of estoppal known as res judicata applies and this action should be deemed an abuse of Court process as that described by Sir James Wigram V.-C. in Henderson v Henderson (1843) 3 Hare 100 at 114: "In trying this question I believe I state the rule of the Court correctly when I say that, where 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, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but 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."

 

The Dolphin Square one is quite new and important.

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CPR 38 just says that claimant needs to get permission but the new Dolphin Square case says that even then its unlikley permission will be given unless there are special circumstances/changes, etc it shouldn't just be used as a second attempt.

 

IF permission under CPR 38 wasnt even sought that is a further abuse.

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Thank you for the knowledge.

 

This is an npower issue.

 

I moved in 2010, giving final reads and duly paid the final bill produced. Bank statements confirm this. I also have a final statement zero balance.

 

Moving on to jul-15 and a claim form relating to a bill same old address, dated April 2012 addressed to occupier.

 

I defefended all, mediation failed. No paperwork at this time provided by Wilkinson chapman.

 

On the day of hearing, in pre court discussion, I produced my final bill, statement showing payment and closed account.

I also had my old ctax bill, closed as moved,refunded and my new ones relating to current address.

 

I also referred them to bvack billing as it went back nigh two years. Solicitor wanted to withdraw prior to hearing, I insisted on joining before judge.

 

Put my case to judge, solicitor admitted something was wrong.

 

Judge dismissed as no case. Costs to be awarded, got my fee and a small time value back value 250.00.

 

In new claim occupier has been changed to my name and current address.

 

I will write to Wilkinson's this weekend quoting prior action and outcome, and throw in the above.

 

I'll post up the outcome.

 

Cheers

 

Chris

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