Managing Agent leasehold Property 4th Court Claim same issue.

[DonkeyB]

To what stage did the previous case get? Did you enter a defence? File AQs? Get the track assigned or a hearing? Need to know a bit more. There are instances where they could relitigate.

 

The set aside should be simple, as you were provably in hospital, and it sounds as though you have some kind of valid defence.

[DonkeyB]

Well, that’s a better scenario. They should have applied to the court to for permission to re-litigate if the case was brought on essentially the same facts.

 

You need a copy of the claim form to establish if this is the case.

[DonkeyB]

I would suggest you first try to get hold of a copy of the second claim form. You need your facts first – you can't claim the particulars were the same if you don't know.

[DonkeyB]

Bit busy, but will look over – should be straightforward. Looks like a straightforward abuse of process.

[DonkeyB]

Get yerself an N244...

[DonkeyB]

Use that sneaky old trick – tell the truth. Good luck.

[DonkeyB]

Well done. Did he give you four weeks to enter a defence? That’s good if so.

[DonkeyB]

I would suggest you need three elements.

 

1. A clear, concise rebuttal of their claim as your actual defence.

 

2. A witness statement to support your defence, which tels your side of the story and adds all the context.

 

3. For the day of any hearing, a clear skeleton argument that outlines the legal points.

 

You also need to define clearly the basis and reasoning for your counterclaim, and prepare the wording of your claim, as well as your supporting law/caselaw etc.

 

Plenty to do!

[DonkeyB]

You need two main elements – your defence is your answer to their pleaded case. You must refute every point, with the correct legal argument and references.

 

Your witness statement is your version of events as they happened, your chance to put flesh on the bone and say how these events have impacted on you.

 

A skeleton argument is simply a summary document for the judge that can, mostly, be presented on the day or the day before the hearing.

[DonkeyB]

Suggest you disable that link – personal info blatant!

[DonkeyB]

I’m not sure that Point 1 above is valid. If they withdrew the claim before judgment, I don’t think there is any abuse of process in restarting a new claim. I’m assuming they withdrew, rather than discontinued? There’s a difference.

 

Have a look at this case.

 

http://www.boyesturner.com/news-article.html?id=1646

[DonkeyB]

I think your arguments are sound, but it’s worth getting these issues sorted. If you get the nuances wrong, it proves wriggle room.

 

I am wondering if, as you defended, a proper notice of discontinuation is required? It may be worth asking the court to clarify the basis on which the case stopped –*is there any chance it was simply stayed?

 

I’m a bit vague on the differences between withdrawing and discontinuance (yes, I know, Catholics withdraw...) – hopefully someone else knows more about it? Otherwise I’ll try and do some research later.

[DonkeyB]

Fast track isn't all bad. The level if disclosure required is that much greater, which is more likely to scare them than you.

[DonkeyB]

In small claims, the judge will decide on the balance of probabilities.

 

How much extra info could you get out of the claimant by using CPR18, for example, to ask extra questions? If the answer is ‘lots’, then fast track may be useful.

 

For example, you could ask: Do you acknowledge that without LL you have no power to instigate legal action? They are OBLIGED to answer such requests in seven days with a statement of truth. Crippling.

 

As long as you are sure of your case, fast track could help rip him to shreds, and YOU would win costs hopefully.

 

It’s a risk, of course, but it depends on how sure you are of your case. Pro bono legal help may also be a consideration if the statute is so clear.

[DonkeyB]

There is a fee to pay for a counterclaim, I believe – did you pay one? If not, call the court to check exactly what the order means.

[DonkeyB]

You win, and go for costs. Also make sure that your counterclaim stays alive - sometimes they get forgotten, but keep in touch with the court.

[DonkeyB]

Yes, a letter to the court would be good. Hopefully they should strike out of their own volition, but a letter on file pointing at the counterclaim would save a lot of bother down the line.

 

And yes, andydd, cases like yours were exactly what I had in mind!

[DonkeyB]

Brilliant – having that on the court file will be very useful.

[DonkeyB]

Looks like they have not issued default judgment on your counterclaim. Not my strongest area this, so perhaps call the court and ask why the counterclaim has been ignored.

[DonkeyB]

Good! Keep us informed. Hopefully someone with a better knowledge of how the court handles counterclaims in such cases can help further. I imaging the courts don’t get a lot of situations like this, so it will be interesting to monitor the mechanics of it.

 

Also, I imagine the order allowed seven days for the claimant to apply to set aside the order?

[DonkeyB]

Good news. Wonder if they’ll even turn up?

 

Bearing in mind you are fighting a company, check its status with Companies House website.

[DonkeyB]

I think it shows contempt of court. Add it as evidence to your counterclaim, evidence of their deliberately misleading and vexatious behaviour in the affair.

[DonkeyB]

I think you should be considering enforcement action against them in advance of your counterclaim hearing. It will give you a heads-up as to whether they are going to dissolve themselves or play ball.

 

They will also learn very sharply how serious you are about this.

 

I have a feeling they are going to start claiming soon that they have received no paperwork re their case – there’s some clear bluff in their approach. I can smell it.

[DonkeyB]

As I said - I can smell their tactics!

[DonkeyB]

The important question, is what can I do about it??

 

Do they have an office as such? If so, High Court Enforcement Officer – will cost a few quid, but it goes on their bill.