Pudsters14 vs MBNA

[Cornucopia]

Ok I get what you are saying... i think... I entered my defence and the judge ordered a directions hearing. Then she ordered a list of things that needed to be done prior to a new date for full hearing which is early march. This is the last part of that list. She wanted 1. Claimant to file a fully particularised POC. They have done this. 2. An amended defence from me... I have done this.... And then she wanted witness statements and copies of all the docs we intend to rely upon.... it's this bit i'm stuck with.... I have typed up a witness statement as per one I found on here. But I don't know what documents I'm disclosing or how to set it out etc.... Pudst x x xx

 

I have PM'd you, I am happy to show you my witness statement so you can see how simple it really needs to be. I am sure it is just a case of cutting and shuffling what you have already.

 

As I said, just include everything in your bundle, in sub-sections, clearly marked and perhaps a section for case law if you so wish. It needn't be complicated and you're doing really well, so panic not!!

 

Have you not done the disclosure documents list yet? Have you not been asked to do it?

[pudsters14]

I havent done it yet.. and I haven't been asked to do one... but I suppose I could do one...

[banker_rhymes_with]

Hello Corn!

 

Not arguing with you at all here, so don't take anything I say below as a pop at you...

 

Regarding default notices, it is possible for the claimant to realise that they have screwed up, terminate the current case, re-issue a new default notice and start all over again. They can do it, but as I said, it is very risky and full of pitfalls. My barrister told me to make little of it so that nobody was particularly alerted to it. It holds a lot more strength than the s.78 argument!

 

I think they can try!

 

But it would be an abuse of process at the very least. If they have clearly Terminated the alleged Agreement before the Claim (Letter saying so, or demanding a sum that was otherwise not due before Termination), then they are up a creek without a paddle. They can re-issue as many Default Notices as they like after that, but they'll be as invalid as the last one...there's no live Agreement that can be Defaulted.

 

If the original Claim is demanding the full balance, and that balance includes a future sum that they are seeking to have repaid early, then that's clearly Termination too. Stopping proceedings to correct their mistake is, by then, beyond fixing.

 

PT2537 posted some useful bumf on Abuse of Process, i.e. stopping and re-starting to try and correct an error (assuming the error can even be corrected):

 

Here’s what a leading QC had to say on bringing a claim after discontinuance:

 

 

Re-litigation amounting to an abuse of process

 

There have been several cases dealing with whether a claim which is inconsistent with an earlier claim or evidence given by the claimant in earlier proceedings (such as an affidavit used in an application to discharge a freezing injunction) should be struck out as an abuse of process. Further, a party to litigation is required to bring forward his whole case, and is generally not permitted to bring later proceedings raising matters that could have been resolved in the earlier proceedings (the rule in Henderson v Henderson (1843) 3 Hare 100). It is clear from cases such as Bradford and Bingley Building Society v Seddon [1999] 1 WLR 1482 that there are two main elements:

 

(a) that the second claim is one that could have been brought in the first claim, or is inconflict with an earlier claim or evidence; and

 

(b) an additional element, such as a collateral attack on the earlier decision, or dishonesty, election, or unjust harassment.

 

Thus, in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 a claim against the police was struck out as it was held to be no more than a collateral attack upon the decision of another court of competent jurisdiction.

 

Issue estoppel 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). Issue estoppel also arises to prevent a party reopening a liability issue after a judgment for damages to be decided by the court on the assessment of damages (Item Software (UK) Ltd v Fassihi (2003) LTL 28/1/2003). There is no issue estoppel if there is no definitive decision on the issue in the first claim (Tannu v Moosajee [2003]

EWCA Civ 815, LTL 20/6/2003).

 

Where the parties in the two claims are not the same, issue estoppel does not apply (Sweetman

v Nathan [2003] EWCA Civ 1115, The Times, 1 September 2003), and further, the factual findings in the first claim are not admissible evidence in the second claim (Hollington v F. Hewthorn and Co. Ltd [1943] KB 587). A person claiming title to goods or land is treated as being privy to the interests of those through whom title is claimed, and so will be bound by the decision in proceedings in which any predecessor in title was a party, but only if judgment in those proceedings was given before the presently claimed title was acquired. A person who purchased title before judgment is not regarded as a privy (Powell v Wiltshire [2004] EWCA Civ 534, [2005] QB 117).

 

Issue which should have been raised in earlier proceedings It is an abuse of process to raise in a second claim an issue which should have been raised against someone who was a party to earlier proceedings (Henderson v Henderson (1843) 3 Hare 100; Talbot v Berkshire County Council [1994] QB 290). Where it is alleged that an issue was or should have been raised in earlier proceedings, it is first necessary to consider whether issue estoppel applies, which can only be

negatived by fraud or collusion It is only if there is no such estoppel that it is appropriate to consider whether raising the issue now would be an abuse of process under the principle in Henderson v Henderson (see Coflexip SA v Stolt Offshore MS Ltd [2004] EWCA Civ 213,

[2004] FSR 34; Kennecott Utah Copper Corporation v Minet Ltd [2003] EWCA Civ 905, [2004] 1 All ER

(Comm) 60; Bim Kemi AB v Blackburn Chemicals Ltd [2004] EWCA Civ 1490, The Times, 22 November

2004). In Johnson v Gore Wood and Co. [2002] 2 AC 1 the House of Lords held that when considering whether a second claim is an abuse of process a broad, merits-based judgment has to be made, taking into account all the public and private interests involved, and all the facts.

 

I'm supposed to be doing Accounts, so I'd better get the heck out of here and get back to work!

 

Cheers,

BRW

[Cornucopia]

BRW, I know you're not having a pop! I am merely imparting the words of my eminent barrister!

 

You're right though, they can try and probably won't have a hope in hell, but it doesn't mean they won't!!!

 

Also, as a side issue, and I normally wouldn't divulge such personal information but Pudsters and I have just discovered that we are actually Facebook friends without even knowing it! What are the chances of that??!! Goes to show that we never know who's paths we are crossing on the sites.....a cautionary tale indeed!!

 

I can help her a bit more personally now!!

[pudsters14]

Thanx so much for all your help guys,.... was really going into panic mode big time.... Corn is giving me some much needed guidance on my witness statement etc.... am just glad will be able to get it sorted. Pudst x xx x

[42man]

Pudsters, some other links here which might help you... -

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/151709-help-10.html#post1891351

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/148840-enforcable-agreement-mbna-help-6.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/95027-cabot-county-court-claim-16.html

[AnimalMagic]

 

PT2537 posted some useful bumf on Abuse of Process, i.e. stopping and re-starting to try and correct an error (assuming the error can even be corrected):

 

I'm struggling to understand the language in that quote, but in the case where the claimant fails to submit an allocation questionaire, does that mean the case is done and dusted and they cannot start again? (that's the quote entitled 'Re-litigation amounting to an abuse of process')

[steven4064]

Pudst

 

the witness statement seems OK. You can carry on tinkering with it but provided it has all the case law and statutes and they can be referred to in court, I think it's OK

[pudsters14]

Hiya all....................quick update for you.... I submitted my witness statement and docs. They still haven't sent anything in at all. Just waiting now... Pudst x x x x

[pompeyfaith]

Any update on this case

 

Regards

 

Pompeyfaith

[MAGDA]

Any news Pudsters???

[A+]

bump for news?

[AnimalMagic]

Maybe Pudsters been bumped off?

[A+]

let's hope not

[MAGDA]

Wouldn't surprise me, Link has probably hired a hit man

[underdog13]

Or perhaps she's busy celebrating her defeat of Link:D Certainly hope so.

[pudsters14]

Hiya all

 

hahahahaha i've not been bumped off but certainly feel in the wars. I've hardly been on here because I had a major operation at the end of Feb so have been laid up a lot. But now I'm baaaaaaack! hahahaha

 

Right UPDATE TIME!

 

Right As you know I submitted my witness statement and docs with lots of help from lovely Corn (thanx so much!!!!)

 

Link had never come back with anything at all but due to my operation I had to write to the judge to get the date for the hearing moved as I wasn't well enough to go. When I wrote I also mentioned that Link hadn't complied with the order from the directions hearing...

 

The judge then ordered that they file their docs and an application for relisting and the case was stayed. They had a certain time to do that in otherwise it would be struck out.

 

That date was 2 weeks ago... I got confirmation on Friday that the claim has definately been struck out! They did not comply in any way shape or form with either of the orders....Wahay!!!!!

 

Am so pleased and its such a weight off my mind as I am recovering from major surgery at the moment...

 

Thanx so much for everyones help... I will mention some names but please please please dont think i dont value your contribution or input if i havent mentioned you as my grey matter is jellyfied atm and i can bearly remember what i had for tea last nite! LOL

 

Thanx so much Steven, Corn, Magda, Banker Rhymes with, Martin, S.AgentX20... erm thinking thinking... infact everyone whos submitted any kind of message on this thread.. thanks...thanks... thanks it means the world...

 

Onto my other consumer issues now....

 

Oh and can I claim costs? Had to ask!

 

Thanx again!!!!!!!!!!!!!

 

Pudst

x x x x x x x x x x

[A+]

FanTASTIC news!! WELL DONE!

[pudsters14]

Oh and thanx 42man/pompeyfaith

 

the names are coming back to me now! LOL

 

Pudst x

Edited March 27, 2009 by pudsters14
Coz im daft!!!! :)

[pudsters14]

Thanx A+.... I'm so chuffed...

 

Pudst

x x x x

[underdog13]

Congratulations, Pudster:D So pleased for you.

[A+]

you should be, and they deserve it. All they had to do was follow the law like all citizens are expected to, and they would be the ones laughing at US. Unfortunately the law is a bit beyond them so i enjoy every ounce of laughter i can get these days!

[AnimalMagic]

Congratulations

 

You should claim costs, I think the term is 'wasted costs order'... I'm sure others have done this successfully...

[supasnooper]

Hi puds,

 

Congratulations and well done.

 

Hope the op recovery goes well.

 

Get that wasted costs order in.

 

Have a look at the pdf's that Surfaceagentx20 has attached at the bottom of the post on a letter for wasted costs -

 

arrow global receivables/cope's solicitors

[atwozee]

Hi Pudst – so pleased for you – glad its over – well done.