basa - The creditor paid my claim and costs. (This was a year ago).

The same creditor is now threatening legal action for the full balance. I am intrigued as to whether they can still legitimately pursue this after I have judgement (even though it was by default) for essentially the same matters?

As the creditor has had a judgement awarded against them albeit by default, which works in your favour, a court would be very concerned that the creditor actually settled and did not defend the case whilst they had the full opportunity, or seek a review very soon afterwards rather than simply settling. The fact they have settled long ago, could quite easily be regarded by the court as a form of admission and acceptance that the creditor obviously had no evidence at the time and therefore they have admitted that they did not have a reasonable or indeed any case against you.

What has changed since then basa, has new evidence been manufactured or mysteriously just turned up that was not obtainable at the time.??

If a court was prepared to hear a new case based on the old evidence then the creditor would have to show that they had conducted the handling of the entire affair in a responsible and orderly fashion, and would still need to produce all the evidence required with a reasonable and plausible explanation of why it was not available long ago.......have they now turned up new relevant evidence that was not obtainable at the time.? (if so request to see it, otherwise they will have to eventually dislose it under CPR rules anyway)

If not, then somehow I cannot see that the courts would be prepared to accept this creditor has acted properly or within the guidelines or used the correct judicial procedures. After an initial preliminary hearing of this case, I believe the courts may well refuse to entertain it any further based upon the past events.

I think you need to do a bit of reading into the counterclaim rules. I believe that the defendant can make such a claim.

Well they have now submitted their defence.

Strangely they have again admitted they have no signed agreement!

Just waiting now for directions from the court.

OK - On a totally unrelated matter.

Last year (being a bit green and foolish back then!) I instigated a claim against a major credit card. The claim was for a declaration of unenforceability, removal of damaging subject data and return of unauthorised default charges.

Probably fortunately for me, the creditor did not defend the action and I received default judgement. The creditor paid my claim and costs. (This was a year ago).

The same creditor is now threatening legal action for the full balance. I am intrigued as to whether they can still legitimately pursue this after I have judgement (even though it was by default) for essentially the same matters?

huckster:

If you win this time around, you should obtain a higher valuer judgement I would have thought. Can you revise your POC to include any compensatory sum and obviously put in an increased request for costs.

Might be worth looking into as this would definately force them to act this time around, with more money potentially at stake.

Well I'll certainly be asking for compensation for the costs of the claim i.e. court fees for issuing the claim and hearing costs. My personal costs for time and travel are minimal - no more than £20, but if asked I will put it for consideration as well. I don't want to push my actual money claim too high because it invokes higher court fees and I'm cash strapped as it is.

It will be some time before any hearing though, we are only at directions stage at this time. The date for return of their defence is next month.

I have included in my particulars of claim for an unspecified sum for damage to my credit status. Dunno how that will go!

If you win this time around, you should obtain a higher valuer judgement I would have thought. Can you revise your POC to include any compensatory sum and obviously put in an increased request for costs.

Might be worth looking into as this would definately force them to act this time around, with more money potentially at stake.

Latest development in this long going saga. Things are moving on at last!

The court has struck out all the defendants earlier defence submissions and ordered them to issue a new defence complying with CPR.

This is the order from the court:

http://i652.photobucket.com/albums/uu241/basa48/orderfordefence.jpg

I shall prepare my reply to the defence if and when I receive it. From past performance there is a distinct possibility they won't enter a defence on time!!!

conmankiller:

basa - This case cannot be allowed to indefinitely block or hold up the due legal process any longer, refer to my previous post on 17 May 2010, 1:04 PM, also surely they would have to swear the elusive email was sent by making a sworn Affidavit, before the court could accept their evidence under oath or technically before allowing any further procedure....... I mean why should the court just accept this creditors word after all the other ridiculous delays they have caused and the wasted time.???

Respectfully ask the judge to strike out any further possible action by making a declaration that the case is now, ' Res judicata ' .....this effectively means the same matter cannot ever be raised again, either in the same court or in a different court.

The courts are able to use RJ to deny any further reconsideration of a matter, to avoid unnecessary wastes of time & resources in the judicial system, or to avoid continual inconvenience to the concerned parties.

Tbh, I'm not sure what procedures I can and should use here. My fear being it costs £75 to make an application and if overturned is lost money. I'm also not sure what application I can make. A strike out suggests there is some defence to strike and summary judgement (according to my reading of the CPR) is not available where there is no acknowledgement or defence lodged (which there is neither).

The judge commented at the set-aside hearing there was nothing on file from the defendant!! For now I think I'll wait a while to see what the defendant does next - pay up or go for another set-aside. Then I can formulate a response.

As ever watch this space. An interesting excercise in minor litigation.

huckster:

If they emailed the letters to the court (if this is an accepted method by the court) then they should have the date/time of sending so the court can check receipt with their IT people. If the email failed to send properly, then they should be able to evidence this by providing a copy of a service delivery failure email/event log, showing the email did not go through properly.

Why did they not send a copy of the letters to the court as well as the email, to make sure received ?

Sounds like they are wasting the courts time.

The court does have an e-filing address and they sent me a copy of the alleged email with attachment.

I agree, if it were me I would have sent hard copies to the court AND confirmed by phone it had been received and recorded.

They are certainly wasting my time as well as the court's and their own. Not forgetting the cost of the applications!!!

basa48:

They have responded with copies of a letter to the court saying "we emailed our defence in time - honest. Please tell the judge" !

Receipt still wasn't ever recorded by the court though.

If they emailed the letters to the court (if this is an accepted method by the court) then they should have the date/time of sending so the court can check receipt with their IT people. If the email failed to send properly, then they should be able to evidence this by providing a copy of a service delivery failure email/event log, showing the email did not go through properly.

Why did they not send a copy of the letters to the court as well as the email, to make sure received ?

Sounds like they are wasting the courts time.

basa - This case cannot be allowed to indefinitely block or hold up the due legal process any longer, refer to my previous post on 17 May 2010, 1:04 PM, also surely they would have to swear the elusive email was sent by making a sworn Affidavit, before the court could accept their evidence under oath or technically before allowing any further procedure....... I mean why should the court just accept this creditors word after all the other ridiculous delays they have caused and the wasted time.???

Respectfully ask the judge to strike out any further possible action by making a declaration that the case is now, ' Res judicata ' .....this effectively means the same matter cannot ever be raised again, either in the same court or in a different court.

The courts are able to use RJ to deny any further reconsideration of a matter, to avoid unnecessary wastes of time & resources in the judicial system, or to avoid continual inconvenience to the concerned parties.

The DJ was issued to them a week or so ago.

They have responded with copies of a letter to the court saying "we emailed our defence in time - honest. Please tell the judge" !

Receipt still wasn't ever recorded by the court though.

I'll leave it another week and if no applications are forthcoming, I'll bang in a warrant!

Not sure what else to do. Can't go for strike out 'cos there's no defence to strike! And a summary judgement requires an acknowlegement or defence!

You'd think so.

A request for judgement in default is (I think) dealt with by the case management team, not a DJ.

If the defendant goes for another set-aside that is an application that would go before a judge who may decide to hear the plea. I would be nice if he just threw it out without a hearing.

I'm not even sure what my options are in response to a set-aside application. Last time I just submitted a witness statement in opposition. Applications cost £75 a throw!!

There can be no excuses by the defendants, as the judge has bent over backwards to be helpful to them.

I think you should now win by default and they will just have to write this matter off. It cannot be worth them pursuing this any further.

Well this is fun!!

Continuing the saga (or debacle) the defendants have failed to file their defence with the court (this now 3 weeks after the judge specified it should be filed) !! Consequently I have again requested default judgement.

Watch this space for yet another set-aside application from the defendant!

I don't think the judge will be impressed!

OK, we now have the defendants witness statement for defence of my claim.

My claim is for a determination of unenforceability, removal of damaging subject data and return of unauthorised interest charges.

They seem to be basing their defence on that we must have signed a credit agreement in order to obtain credit from them and process subject data.

This will be interesting in that as claimant I will have to prove my case. The crux being they have admitted they have no properly executed agreement (they have provided a slip as I mentioned earlier containing a signature but no date or terms) and are basing their defence on ongoing usage of the account. In fact the account is well over 10 years old and it is debateable whether any agreement was produced or signed or whether any defence witness can swear as to what the protocols for credit were that long ago. It seems to me that the account was initially order / pay / receive and drifted into order / receive / deferred pay.

Clearly there has been a transactional history and arguably, implicit acceptance of terms. But as those terms were never formally advised or agreed, contractually that should be irrelevant.

I hope to keep this case as a small claim in that it hopefully avoids costs for the loser and allows anyone (i.e. me) to conduct the case on our behalf.

So now we wait for AQ’s.