old Discontinued claim from 2009 - is this now Statute Barred?

[indebtnow]

Hi all,

 

Apologies if this has been covered before, or if it's in the wrong section of the forum.

I have performed a search on here, but found nothing to categorically answer my quesiton.

 

With regards to a debt being statute barred, it seems that this occurs 6 years after the last cause of action on the debt.

 

Now I understand thr last cause of action to be either 30 days from the the last payment or written acknowledgement of the debt. Is that correct?

 

However, can other factors upset this process?

Such as what happens if a county court claim is issued, then later discontinued?

Or if a CCJ is granted, does this then restart the 6 year clock.

Or if interested and/or fees are added after the last payment, but before a default notice is issued?

 

Many thanks for your help.

[citizenB]

If a county court claim is issued then that stops the clock - if the claim is discontinued or dismissed then the clock restarts as though the claim hadn't been issued.

 

If this is a bog standard credit card debt or unsecured loan - then it is my understanding that you should add at least 2 months onto the first payment missed and start counting 6 years from then.

 

If a Judgment is awarded against you, before the SB clock hits the target date/time then that is it

[indebtnow]

Many thanks citizenB.

 

So, just to sum up,

if a county court claim is issued,

say at 5 years 6 months from the cause of action,

then goes through all the processes and is discontinued or dismissed 6 months later,

does that mean there is still another 6 months from the date of the discontinuance/dismissal before it is Statute Barred or does it then automatically become SB at dismissal/discontinuance?

[havinastella]

If the claim was discontinued it has no bearing on the time frame.

[indebtnow]

Thank you, so the 6 years would still run from the last cause of action, just as it would have been if the claim hadn't been filed in the first place?

[SabreSheep]

correct

[indebtnow]

Thank you for all your replies!

[Peterbard]

Tn addition to the onfo supplied. I think it should be mentioned that. The SB period ceases on the issuance of the claim(commencement of proceedings).

 

Also if the debt was acknowledged within the defense procedure this in itself may restart the clock(section 29).

 

Also if the SB is not raised by the defendant within the proceedings the creditor is within his rights to enforce an action for the debt, irrespective of the SB.

 

Also section 35 of the SOL says that if a new action is brought then the sb date may run from the date of the proceedings (dependent on if the facts of the case differ)

 

I am no expert in court procedure, but I believe that it is possible to restart a case which has bee discontinued under CPR and with permission of the court, since this would be the same proceedings I would think that the SB date would be updated to the claim already issued.

[DonkeyB]

I’m pretty sure there is case law that dispels this, where a litigant brought proceedings simply in an attempt to halt the SB clock. The claimant was not in a position to justify or follow through its claim so sought an adjournment, but the judge ruled the issuing of the claim an abuse of process and struck out the claim.

 

So any blatant attempt to stop the SB clock simply by issuing a claim when you don’t have any evidence to back your claim may backfire.

 

Just wish I could fined the bloomin’ case law...

[citizenB]

This one DB ?

 

 

“In Barton Henderson Rasen v Merrett [1993] 1 Lloyd’s Rep 540 Saville J said that it is an abuse of the court’s process to issue proceedings with no intention of taking the case any further. In contentious matters the courts exist for the purpose of determining claims. Therefore, starting a claim with no intention of pursuing it is not using the court’s processes for the purposes for which they were designed.”

[DonkeyB]

This from Thomson Reuters Practical Law site:

 

The commencement of proceedings stops time running in respect of the particular cause of action on which the proceedings are based. For details on limitation generally and when a claim is brought for the purposes of limitation, see Practice note, Limitation periods: an overview and Drafting note, Standstill agreement: Effect of commencement of proceedings. However, bringing an action within the limitation period does not stop the limitation period from running generally. If an action is struck out or aborted before judgment is given, a fresh action can only be brought if there is a balance left of the limitation period.

[DonkeyB]

This one DB ?

 

That may be the one CB – thank you! Will look it up and bookmark it.

[citizenB]

[citizenB]

I just found this as well.

 

In Barton Henderson Rasen v Merrett [1993] 1 Lloyd’s Rep 540 Saville J said that it is an abuse of the

court’s process to issue proceedings with no intention of taking the case any further. In

contentious matters the courts exist for the purpose of determining claims. Therefore, starting

a claim with no intention of pursuing it is not using the court’s processes for the purposes

for which they were designed. ‘Parking’ proceedings in an attempt to achieve a settlement

with other defendants justified striking out with indemnity costs in Sodeca SA v NE Investments

Inc. [2002] EWHC 1700 (QB), LTL 27/8/2002.

 

[DonkeyB]

Yes, CB – you picked it up a couple of years ago in a Bryan Carter case, courtesy of pt2537.

 

In Barton Henderson Rasen v Merrett [1993] 1 Lloyd’s Rep 540 Saville J said that it is an abuse of the

court’s process to issue proceedings with no intention of taking the case any further. In

contentious matters the courts exist for the purpose of determining claims. Therefore, starting

a claim with no intention of pursuing it is not using the court’s processes for the purposes

for which they were designed. ‘Parking’ proceedings in an attempt to achieve a settlement

with other defendants justified striking out with indemnity costs in Sodeca SA v NE Investments

Inc. [2002] EWHC 1700 (QB), LTL 27/8/2002.

 

(There is another example, relating to a property claim, that I still can’t find.)

 

In other words, a claimant cannot simply bring a claim, when they are not really ready, and just let it be stayed (‘parked’) with a view to applying to lifting the stay when they get their act together.

 

Also, as highlighted in the other quote I made above, it is the case that the SB clock stops with the issue of a claim, but if the case is withdrawn or struck out, the SB clock reverts to the original cause of action.

 

All depends on the intentions of the claimant and what they can prove. But they won’t usually be able to amend their PoC or introduce new elements to the claim after the SB period elapses, if they take forward a hastily-issued or vague claim.

[Peterbard]

Sexton 36 refers to Laches or acquiescence, which is the practice of delaying the action in order to benefit the claimant.

 

I think the case was frawley vs niell

 

I would expect the COA rot revert if the case was withdrawn, or struck out but what is the situation if it is discontinued.

[indebtnow]

All very interesting reading!

 

In my particular case Dodgeball, the case was discontinued by the claimant as they did not provide any evidence and probably didn't want to get a mouthful from the judge for starting a claim without any. In that instance, surely that is the same as withdrawing from the action?

 

If it did mean that the clock on SB had been paused whilst the action was taking place, but then discontinued by the claimant and does then revert back to the original cause of action, by my calculations that's means that it would be SB in my case.

[indebtnow]

Tn addition to the onfo supplied. I think it should be mentioned that. The SB period ceases on the issuance of the claim(commencement of proceedings).

 

Also if the debt was acknowledged within the defense procedure this in itself may restart the clock(section 29).

 

Also if the SB is not raised by the defendant within the proceedings the creditor is within his rights to enforce an action for the debt, irrespective of the SB.

 

Also section 35 of the SOL says that if a new action is brought then the sb date may run from the date of the proceedings (dependent on if the facts of the case differ)

 

I am no expert in court procedure, but I believe that it is possible to restart a case which has bee discontinued under CPR and with permission of the court, since this would be the same proceedings I would think that the SB date would be updated to the claim already issued.

 

In my particular case, I didn't raise any SB issues as it wasn't SB when the claim was issued, although it is now, after the claim running through to the 11th hour, quite a few months in total, before being discontinued by the claimant. In addition, it was a defended claim, therefore nothing was acknowledged in the proceedings at any time.

 

From what I have read, they do need the court's permission to restart the case, and in doing so would have to go through all the same processes again from the beginning and the re-pay the fees. But as already mentioned, it would now be SB by my calculations.

[indebtnow]

Just been looking through some old paperwork that I kept from a few years ago, and

 

whilst not strictly as a consumer, but as a sole trader

 

I ran up a small debt (just a couple of hundred pounds) with a company who then took me to court

and as I didn't defend the claim, they obtained a default judgement.

 

What I didn't realise at the time,

is that the company in question wrote to me after they'd obtained the judgement a couple of times,

and in the second letter they threatened me with a Bankruptcy Order and mentioning the Insolvency Act 1986.

 

Now, this CCJ was ignored and never paid,

 

I don't want to go dragging up the past with this company,

 

but it would be interesting to know if that was legal,

 

threatening me with bankruptcy when the total monies owed were substantially less than £750?

[Peterbard]

In my particular case, I didn't raise any SB issues as it wasn't SB when the claim was issued, although it is now, after the claim running through to the 11th hour, quite a few months in total, before being discontinued by the claimant. In addition, it was a defended claim, therefore nothing was acknowledged in the proceedings at any time.

 

From what I have read, they do need the court's permission to restart the case, and in doing so would have to go through all the same processes again from the beginning and the re-pay the fees. But as already mentioned, it would now be SB by my calculations.

 

You may well be right and as I said they do need the permission of the court, i merely raise the question of if this necessarily means that the cause of action reverts to the original date. If this is a new action on the same facts, then according to the legislation as I read it, it does not, it may be the case that it would depend on the individual circumstances of the case and as to why the proceedings was discontinued, but I am open to any other opinion on the matter and would be interested on other views or authority

[BRIGADIER2JCS]

In my particular case, I didn't raise any SB issues as it wasn't SB when the claim was issued, although it is now, after the claim running through to the 11th hour, quite a few months in total, before being discontinued by the claimant. In addition, it was a defended claim, therefore nothing was acknowledged in the proceedings at any time.

 

From what I have read, they do need the court's permission to restart the case, and in doing so would have to go through all the same processes again from the beginning and the re-pay the fees. But as already mentioned, it would now be SB by my calculations.

 

 

 

 

Practice Notes:

England and Wales:

 

 

A practice note which looks at the effect of limitations periods on amending and new claims in pending actions.

 

 

Commencing proceedings and limitations.

(6 year LP for actions of simple contract or tort.)

 

 

 

 

The commencement of proceedings stops time in respect of the particular cause of action on which the proceedings are based.........>

>..................... Bringing an action within the limitation period does Not stop the period from running generally.

 

 

IF AN ACTION IS STRUCK OUT OR ABORTED BEFORE JUDGEMENT IS GIVEN, A FRESH ACTION CAN ONLY BE BROUGHT IF THERE IS A BALANCE LEFT OF THE LIMITATION PERIOD.

Practice Note 0-500 0**

 

This shows that the limitation period continues as according to the original COA.

[indebtnow]

:thumb:

[BRIGADIER2JCS]

I'm sure that there is a raft of data on this subject, but this PN is current and in constant use.

All boils down simply to no judgement the original cause of action starting the six year clock is maintained and the clock restarted from that date.

[Peterbard]

Of course, this is repeating what has already been said. the question is does this apply in all cases to a discontinuance

 

There is also this to consider CPR 17 and also 19

 

Amendments to statements of case after the end of a relevant limitation period

17.4

(1) This rule applies where –

(a) a party applies to amend his statement of case in one of the ways mentioned in this rule; and

(b) a period of limitation has expired under –

(i) the Limitation Act 19801;

(ii) the Foreign Limitation Periods Act 19842; or

(iii) any other enactment which allows such an amendment, or under which such an amendment is allowed.

(2) The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.

(3) The court may allow an amendment to correct a mistake as to the name of a party, but only where the mistake was genuine and not one which would cause reasonable doubt as to the identity of the party in question.

(4) The court may allow an amendment to alter the capacity in which a party claims if the new capacity is one which that party had when the proceedings started or has since acquired.

(Rule 19.5 specifies the circumstances in which the court may allow a new party to be added or substituted after the end of a relevant limitation period(GL))

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[Peterbard]

Sorry should have mentioned this first re discontinuance

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part38

 

The procedure for amending a statement of case, set out in Part 17, applies where a claimant abandons a claim for a particular remedy but wishes to continue with his claim for other remedies)