Being sued by Cowboy Builders - please help *** Claim Struck Out ***

[wonky100]

Thanks Uncle Bulgaria & Steampowered

 

Trading Standards are aware of the matter and even congratulated us (in writing) on the outcome of the civil proceedings! But no, they are not taking any action against this trader.

[Shadow25]

Wonky- I successfully used a res judicata Defence but that was on the basis that the matter had been heard at a full Trial. In your circumstances the claim has been struck out on a procedural matter and so ,technically, the DJ has not made a judgment on the facts. Therefore issue estoppel does not aply.However in order to reissue proceedings they would still need permission from the Court and you would then apply for a strike out or simply oppose the application. From what I have read on this thread imho you would oppose the application under CPR 3.4(2)(b) on the basis that the claim is vexatious,scurrilous or obviously ill- fated. Hopefully they will shortly see sense &,incidentally,I believe they are unable to recommence proceedings under any circumstances if a cost order is outstanding.

[wonky100]

Hello Shadow

 

You are absolutely correct, in our case the claim was struck out on a procedural matter. However, the builder applied for relief from this sanction and this application was dismissed after careful consideration, paying particular attention to each and every point of CPR 3.9. Furthermore, the DJ even questioned the likelihood of the the claimant being successful if the case was to continue and asked them point blank if they had read the SJE report.

 

I do however accept what you say about a DJ having not made a judgement. Whenever we speak about the matter and people ask if we won the case, we always say that the case was dismissed and not heard, not that we won. However, the opinion re estoppel which was expressed was not mine but that of a solicitor, which is why I quoted the opinion word for word, although on rereading it, it does state "......determined by a judgement of the court......". I guess the solicitor whom I spoke with considers the fact that the DJ dismissed the case to having concluded the matter and therefore in his opinion estoppel applies. I don't know. The only way to ever know for sure is if the builder did try and reinstate the claim. So I'm hoping to never prove the solicitor right or wrong! But I may just ask the solicitor tomorrow to clarify re the fact that judgement was never made (although he does already know this). If he reconsiders, I'll let you know.

 

We tried to have the claim struck out early on due to this being a vexatious claim, but weren't successful. We even pointed out that their original "solicitor" did not have authority to issue proceedings to no avail, they were simply given the opportunity to resubmit their POC.

 

From what I have read of CPR if the builder wanted to continue with their action then they should have asked permission of the DJ to appeal or failing that (or failing getting permission) made a subsequent application and should not commence new proceedings. I also understand that the time to appeal the decision to dismiss their case is out of time.

 

With regards to the costs order, couldn't they just decide to pay and then attempt to reinstate?

 

I hope that you are right about them shortly seeing sense.

 

Thanks

[wonky100]

Doing a bit of reading on res judicata and I don't like what I'm reading!!!

 

But I have just read that once the appeal process is exhausted or waived that res judicata applies. The appeal process was never used as the claimant and/or their solicitor never asked for permission to appeal and have not so far made an application to appeal and I understand that the matter is now out of time to do so. Therefore, did they waive the appeal process?

 

Thanks again

[Mike_hawk]

Hi wonky

 

I would think the only way the case could be brought again is by another entity. The director may lay himself open to the court considering perjury given his previous witness evidence.

 

I'd keep a record of any/all events and continue logging any indication of harrassment with the police.

[wonky100]

Thanks Mike

 

I had wondered if a claim may be made by company a as opposed to company b, but as you say considering the previous witness statements.....

 

Currently the builder is only a director of company a and not company b, who sued us, although the new director does have the same surname and has previously been a director of company a! The claimant was adamant throughout the proceedings that company a was merely a trading name of company b and not a separate legal entity.

 

I guess I was hoping for a definitive answer as to what they could or couldn't do but it doesn't look like I'll get this.

 

3 years and 8 months to go until the matter is statute barred!

[steampowered]

It is not res judicata in a narrow sense because there was no hearing on the merits.

 

However, I think a second round of litigation would almost certainly be struck out as an abuse of process under CPR 3.4 (2) (b).

 

There is extensive case law on exactly this point. That the court should strike out claims which have already been brought is a well established rule and is known as the rule in Henderson v Henderson. In Henderson it was said that:

"

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 a 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 rule was discussed extensively by the House of Lords, providing the strongest form of case law precedent, in http://www.bailii.org/uk/cases/UKHL/2000/65.html. If they bring another claim you simply apply to strike out.

[wonky100]

Thank you Steampowered

 

We shall certainly use this information if anything further should be forthcoming.

 

Thanks all x

[nottonto]

Hi everyone

I'd just like to add my bit to your article, I've just joined CAG, I have a conservatory which requires repairs under warranty but the company telephone lines are all disconnected or not working.

The company was Spectus Conservatories, Vicars House, Priestly Rd, Hants., I did notice when I paid my deposit by credit card that the name on the receipt was Lakeland Conservatories.

Does anyone know anything about them, where they are now, are they still trading ?

any info. much appreciated .

nottonto

PS I haven't had time to read all of this thread but I'm now going to have to.

[Andyorch]

Welcome to CAG nottonto

 

Perhaps start your own thread on this matter were you will get all the advice required in resolving this matter.

 

Regards

 

Andy

[wonky100]

Hello Nottonto

 

Wasn't able to find your own thread. If you have started a thread could you post it up so I can find it please?

 

But just to let you know, Spectus Conservatories (if it's the same one) was run by the same Director, at some point or other but has now ceased to trade, as per Companies House. So unfortunatley you will have not be able to seek any recovery from Spectus but if it makes you feel any better, I do think that in view of my own experience, you would have spent thousands suing them and they would never have paid you even if a Court awarded in your favour, so you've probably saved yourselves thousands not to mention the stress of going to court.

 

Who was the guarantee/warranty meant to be provided by? Was it Home Improvement Protection? If so, these are a genuine company but I'm not sure if Spectus was ever covered by these. I know Conservatory1, another of their many set ups is still covered by this insurance company.

 

You defo need to start your own thread and post up any documents you have (removing your personal details).

 

Hope this helps in the meantime.