Re-issue proceedings

[kurvaface]

Hi all - it's been a while.

 

I have a technical question about reissuing a small claim.

 

I have started a small claim against two companies pursuant to PECR 2003, the Data Protection Act 1998 and the Protection from Harassment Act 1997.

 

The basic story is that

the first defendant commissioned the second defendant to generate potential sales leads for them.

 

 

The second defendant did this by making "Survey" calls from India and then the second defendant sold the opted in leads back to the first.

They used Indian call centres, out of date data and ignored the TPS register.

 

 

I've logged calls going back 4 years. several times over this period

I have identified that the second defendant was party to this business activity on my line and notified them to stop - but they didn't.

 

 

The first defendant didn't exactly know how the leads were generated because they didn't ask.

I'm sure some clever legal person would explain how this is negligent.

 

The first defendant has offered to pay about 15% of the claim plus my claim costs and has also apologised and terminated their use of the second defendant.

 

 

The first defendant is a very big UK nationwide retailer (Sounds like dicks and carhorn whorehouse) of all things technical and is branching out into providing / distributing broadband services - hence this business activity.

 

 

The second defendant is a grubby bottom feeding outfit that is responsible for probably millions of the spam calls that are made in the UK each day.

 

I have agreed to settle with the first defendant and have signed and returned N279 Notice of Discontinuance.

I think I am better off getting them out of the picture and it saves having to argue vicarious liability or negligence etc.

 

Since proceedings started in June, the survey calls have continued.

I know the second defendant is responsible because they are calling asking for the same incorrect name of someone who has never lived at my house. Some of the calls are exceptionally abusive.

 

I would like to discontinue against the second defendant too and reissue a bigger claim.

 

Is this ok?

[steampowered]

Wouldn't you be better off amending your particulars of claim, to incorporate reference to the ongoing calls?

 

Discontinuing your current claim would have a few negative consequences - you lose the court fee, may be liable for costs in relation to the original claim and I'd be concerned whether you find yourself barred from bringing a fresh claim on the same facts.

[kurvaface]

Wouldn't you be better off amending your particulars of claim, to incorporate reference to the ongoing calls?

 

Discontinuing your current claim would have a few negative consequences - you lose the court fee, may be liable for costs in relation to the original claim and I'd be concerned whether you find yourself barred from bringing a fresh claim on the same facts.

 

I don't mind losing the court fee but I wouldn't want to be barred from bringing the claim.

 

What do I need to do to ammend my particulars of claim?

[steampowered]

Review https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part17

 

I suspect you'll need the permission of the Defendant or the court and https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part17/pd_part17.

 

It is good practice to ask for the Defendant to consent to your amendments first. If they refuse, you would need to make an application asking for permission to amend using form N244 (with a copy of the revised POC showing your proposed amendments).

[kurvaface]

Review https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part17

 

I suspect you'll need the permission of the Defendant or the court and https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part17/pd_part17.

 

It is good practice to ask for the Defendant to consent to your amendments first. If they refuse, you would need to make an application asking for permission to amend using form N244 (with a copy of the revised POC showing your proposed amendments).

 

The thing is, as the first defendant settled, they gave me some information I didn't have before which makes my case stronger - the second defendant gave the first a made up voice recording where they cut and snipped sections of other recordings to make it look like I consented to calls. I have my own recordings of all the calls so have been able to identify how this fake call was stitched together. Secondly, I have since received calls in which I have been threatened with "Millions" of further calls if I do not withdraw my complaint....

 

Grounds I think for a different approach?

[BazzaS]

The thing is, as the first defendant settled, they gave me some information I didn't have before which makes my case stronger - the second defendant gave the first a made up voice recording where they cut and snipped sections of other recordings to make it look like I consented to calls. I have my own recordings of all the calls so have been able to identify how this fake call was stitched together. Secondly, I have since received calls in which I have been threatened with "Millions" of further calls if I do not withdraw my complaint....

 

Grounds I think for a different approach?

 

Where are you with regards to disclosure?

 

If disclosure hadn't taken place:

Tomlin order to settle with the first defendant.

Amend your PofC (as already advised), bearing in mind the discovery of the new evidence against the second defendant. If the 2nd defendant objects to the amendment when you ask them, application to the court for permission (as advised by a previous contributor) noting that the new evidence wasn't previously available to you even with "due dilligence".

 

If the case has passed the stage of disclosure : were the recordings disclosable? Were they disclosed?

 

Does the 2nd defendant have an office in England / Wales? and assets you can enforce against??

[steampowered]

The thing is, as the first defendant settled, they gave me some information I didn't have before which makes my case stronger - the second defendant gave the first a made up voice recording where they cut and snipped sections of other recordings to make it look like I consented to calls. I have my own recordings of all the calls so have been able to identify how this fake call was stitched together. Secondly, I have since received calls in which I have been threatened with "Millions" of further calls if I do not withdraw my complaint....

 

Grounds I think for a different approach?

 

You need to clearly distinguish between (1) what you are claiming for and (2) the evidence you have to support those claims.

 

Your particulars of claim only covers part (1). Evidence does not go into the POC. The POC just tells the court what your claim is. Evidence goes into your bundle and your witness statement, which come later in the court process closer to the hearing.

 

New evidence does not usually result in a new claim or amending your existing claim, unless that evidence somehow changes the nature of your claim. I'm not sure the facts you have set out above would merit amending your particulars of claim to be honest. It sounds like this is all evidence that should be set out in the witness statement you provide before the hearing, rather than in the particulars of claim.

 

I suppose you could add the threats to make further calls as a further instance of harassment, but if you have already claimed for harassment I'm not sure why an amendment would be necessary.

[panther12]

I'd be careful of simply discontinuing the claim as it also puts you at risk of paying costs the defendant has incurred up to the point of discontinuance. If the claim had been allocated small claims track then you would be protected from costs but at the moment it is trackless.