Sheesh would you believe this - I couldnt - speechless

[hammyhound]

Went with a friend to court today.

 

He is in a similar position to me in that claimant discontinued proceedings after he filed a defence.

 

They then re-issued a dn and tn saying the same as mine "we couldn't locate so here we go" They then re-issued. He prepared a very good statement regarding discontinuance and the fact that the account had already been terminated as they said so in their previous reply to defence. They still terminated even if they cant find the documents.

 

Helped him along the way and his application notice for a strike out due to discontinue and the Harrison case ie second bite of cherry etc. They have also made an application to strike out his defence as they say "material facts are different"

 

Turns up at the court today, other side sent a solicitor.

 

Went into court, I sat next to time just for support. Judge says here is an application from both sides, claimant wants default judgment defendant wants claimant's claim struck out, having looked at the papers the claimant's application succeeds and the defendant's application is dismissed.

 

Why you ask because the amount is nearly £30,000 and the judge says there is nowhere on earth would he ever strike out a defendant's application on a claimant's claim for that amount of money - incredible. So if it was £1000 my friend might have succeeded.

 

I think an appeal is in order.

 

Shocking tactics - just because the amount is high doesn't necessarily mean that all the rules have been followed and as far as I can see they didn't follow the rules to the letter.

 

HH

[42man]

That is dreadful....I would certainly appeal and get the tapes transcribed from court first.

[Docman]

hammy

 

did your friend have any other grounds to defend other than a defective DN eg unenforceable agreement?

[hammyhound]

Illegible agreement more of a scanned copy really, they couldn't produce the original DN and TN and so therefore discontinued and then re-issued. I thought his witness statement was fab. Explaining that they swore a statement of truth that the DN and TN had been sent in the original proceedings so therefore they could not reissue another DN and TN as the account had been terminated.

 

I am really shocked. Told him to get his application for instalments in in the meantime just in case it does not swing his way but I really thought he had a good case and by following CPR rules the judge should have understood that a claimant because of negligence couldn't produce the first time time, discontinued so they could start again. Shocking and I think the claimant's solicitor was shocked also. The tape transcripts will take 6 weeks!!! Told him to wait for the order but as I said get the application in for instalments in the meantime.

 

The judge's words verbatum, "I cannot allow the Defendant's application to proceed due to the fact that the value of this claim is substantial and as the Defendant has received the money in the past, to deny the claimants of the money that is due to them would be detrimental. The Claimant's application proceeds to default judgment"

 

How the hell do you appeal against that!!!

 

So we might as well forget the white book and cpr. Anyone can sue you now and get away with it. If the claimants have done something wrong in their original proceedings, hey ho discontinue, send another DN and TN with an additional £4000 thrown in for good measure and hey presto win the case with additional £2500 thrown in for costs.

 

Shocking.

 

Any other thoughts that spring to mind let me know.

 

HH

[hammyhound]

Illegible agreement more of a scanned copy really, they couldn't produce the original DN and TN and so therefore discontinued and then re-issued. I thought his witness statement was fab. Explaining that they swore a statement of truth that the DN and TN had been sent in the original proceedings so therefore they could not reissue another DN and TN as the account had been terminated.

 

I am really shocked. Told him to get his application for instalments in in the meantime just in case it does not swing his way but I really thought he had a good case and by following CPR rules the judge should have understood that a claimant because of negligence couldn't produce the first time time, discontinued so they could start again. Shocking and I think the claimant's solicitor was shocked also. The tape transcripts will take 6 weeks!!! Told him to wait for the order but as I said get the application in for instalments in the meantime.

 

The judge's words verbatum, "I cannot allow the Defendant's application to proceed due to the fact that the value of this claim is substantial and as the Defendant has received the money in the past, to deny the claimants of the money that is due to them would be detrimental. The Claimant's application proceeds to default judgment"

 

How the hell do you appeal against that!!!

 

So we might as well forget the white book and cpr. Anyone can sue you now and get away with it. If the claimants have done something wrong in their original proceedings, hey ho discontinue, send another DN and TN with an additional £4000 thrown in for good measure and hey presto win the case with additional £2500 thrown in for costs.

 

Shocking.

 

Any other thoughts that spring to mind let me know.

 

HH

[hammyhound]

OMG it has posted three times sorry

Edited March 24, 2011 by hammyhound

[nicklea]

hammy,

 

As docman said above, what were the actual grounds of the defence? There don't seem to have been any apart from no default notice which they then rectified.

[hammyhound]

Original defence was illegible agreement - it was only one page with no signature and you could barely read it. Despite asking for it again at disclosure the claimant said he had received the only good copy available.

 

So are we saying that despite an illegible agreement, despite them not locating the DN and TN (they only must have found this out at disclosure) they discontinued with no order as to costs and then issued fresh DN and TN and fresh proceedings he will lose.

 

HH

[nicklea]

Did you plead the illegible agreement in the second case?

[hammyhound]

No he quoted CPR regarding discontinuance of the previous action. He didn't think he needed to go over the same defence again. As far as he was concerned they had withdraw after receiving his first defence and thereby used discontinuance in this second defence as that what the rule states regarding re-issuing of proceedings.

[Drowning but not sunk...]

I had to read this three times. I just find it so . In any other arena of law you simply would not get away with this when its CPR and CCA it seems as if the banks can do as they like. I feel so sorry for your friend. I would seek the advice of a legal expert to see if hes got enough grounds for an appeal.