Cohens/CL Finance taking me to court AGAIN. Help!

[frass1]

Cohens took me to court in December 2008 for an Egg credit card debt, I applied for a stay and entered a defence. I heard nothing until June 2009 when I got a General Directions Order from the court stating that
"The application to lift the stay and enter Judgement is Refused". " The wording of the application is ungrammatical and therefore nonsensical, and there being no statement of truth to Part C of the Application. This is not acceptable from a firm of solicitors"
Again I heard nothing until a month ago when I got a letter from Cohens saying they would take me to court unless, etc. I did nothing! Got the new court papers from Northampton approx 2 weeks ago. Can they start a new case? Is there any defence due to Judgement being refused in the earlier case?

[Amethyst]

Re: Cohens/CL Finance taking me to court AGAIN. Help!

lol would like to see the application.

It sounds to me like the case is still stayed, so they can't bring a new case on the same account as the case is already in court. Possibly give the court a buzz to check on the status of the original.

We'll need to see the original docs from the claim, defence, application for stay etc. If you have a background thread to this anywhere a link would assist.

[WendyB]

Re: Cohens/CL Finance taking me to court AGAIN. Help!

If you received the papers from Court 2 weeks ago, have you acknowledged the claim yet? Even if it turns out that the original claim is still stayed, and they can't bring a new one, you should still acknowledge this one in the meantime, until it all gets sorted out.

[frass1]

Re: Cohens/CL Finance taking me to court AGAIN. Help!

I need to do the "Acknowledgement of Service" but do I need to "defend all of this claim" or "contest jurisdiction"? Taking into account the above.

[Amethyst]

Re: Cohens/CL Finance taking me to court AGAIN. Help!

For now I'd just do Intent to Defend in Full - its not binding and just extends the time you have.

[frass1]

Re: Cohens/CL Finance taking me to court AGAIN. Help!

Ok, I need to file a defence or contest jurisdiction, history to follow.

[pt2537]

Re: Cohens/CL Finance taking me to court AGAIN. Help!

There have been several cases dealing with whether a claim which is inconsistent with an
earlier claim or evidence given by the claimant in earlier proceedings (such as an affidavit used
in an application to discharge a freezing injunction) should be struck out as an abuse of
process. Further, a party to litigation is required to bring forward his whole case, and is
generally not permitted to bring later proceedings raising matters that could have been
resolved in the earlier proceedings (the rule in Henderson v Henderson (1843) 3 Hare 100). It is
clear from cases such as Bradford and Bingley Building Society v Seddon [1999] 1 WLR 1482 that
there are two main elements:
(a) that the second claim is one that could have been brought in the first claim, or is in
conflict with an earlier claim or evidence; and
(b) an additional element, such as a collateral attack on the earlier decision, or dishonesty,
election, or unjust harassment.
Thus, in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 a claim against the
police was struck out as it was held to be no more than a collateral attack upon the decision of
another court of competent jurisdiction.
33.14 Issue estoppel Where the issues raised in an earlier claim are identical to the issues raised
in a later claim, there is an absolute bar on the later proceedings unless fraud or collusion
is alleged (Arnold v National Westminster Bank plc [1991] 2 AC 93). Where an issue decided in a
previous claim between the parties is central to a second claim between the same parties, the
whole second claim will be struck out (Kennecott Utah Copper Corporation v Minet Ltd [2002]
EWHC 1622 (Comm), [2003] PNLR 18). Issue estoppel applies where an order is made, and it does
not matter whether the order was made by consent or after argument (Lennon v Birmingham City
Council [2001] EWCA Civ 435, LTL 27/3/2001). Issue estoppel also arises to prevent a party
reopening a liability issue after a judgment for damages to be decided by the court on the
assessment of damages (Item Software (UK) Ltd v Fassihi (2003) LTL 28/1/2003). There is no issue
estoppel if there is no definitive decision on the issue in the first claim (Tannu v Moosajee [2003]
EWCA Civ 815, LTL 20/6/2003).
Where the parties in the two claims are not the same, issue estoppel does not apply (Sweetman
v Nathan [2003] EWCA Civ 1115, The Times, 1 September 2003), and further, the factual findings in
the first claim are not admissible evidence in the second claim (Hollington v F. Hewthorn and Co.
Ltd [1943] KB 587). A person claiming title to goods or land is treated as being privy to the
interests of those through whom title is claimed, and so will be bound by the decision in
proceedings in which any predecessor in title was a party, but only if judgment in those
proceedings was given before the presently claimed title was acquired. A person who
purchased title before judgment is not regarded as a privy (Powell v Wiltshire [2004] EWCA Civ
534, [2005] QB 117).
33.15 Issue which should have been raised in earlier proceedings It is an abuse of process to raise
in a second claim an issue which should have been raised against someone who was a party to
earlier proceedings (Henderson v Henderson (1843) 3 Hare 100; Talbot v Berkshire County Council
[1994] QB 290). Where it is alleged that an issue was or should have been raised in earlier
proceedings, it is first necessary to consider whether issue estoppel applies, which can only be
negatived by fraud or collusion (see 33.14). It is only if there is no such estoppel that it is
appropriate to consider whether raising the issue now would be an abuse of process under the
principle in Henderson v Henderson (see Coflexip SA v Stolt Offshore MS Ltd [2004] EWCA Civ 213,
[2004] FSR 34; Kennecott Utah Copper Corporation v Minet Ltd [2003] EWCA Civ 905, [2004] 1 All ER
(Comm) 60; Bim Kemi AB v Blackburn Chemicals Ltd [2004] EWCA Civ 1490, The Times, 22 November
2004). In Johnson v Gore Wood and Co. [2002] 2 AC 1 the House of Lords held that when
considering whether a second claim is an abuse of process a broad, merits-based judgment has
to be made, taking into account all the public and private interests involved, and all the facts.
Chapter 33 Striking Out
347
A second claim should be struck out only if, in all the circumstances, it should, rather than
merely could, have been brought in the first claim. Mr Johnson was a shareholder in a
company which had sued the defendant solicitors. That first claim was settled, with the
compromise agreement containing a clause seeking to limit the defendants’ liability to Mr
Johnson personally. Mr Johnson then sued the solicitors in his personal capacity, and the
defendants applied to strike out his personal claim as an abuse. Certain heads of claim were
struck out, as they merely reflected losses suffered by the company in which Mr Johnson held
shares, but others were arguably recoverable by Mr Johnson in his own right, and it was held
that even though his personal claim could have been joined with the first claim by the
company, it was not on the facts an abuse to have brought the personal claim by separate
proceedings. Contrast Giles v Rhind [2002] EWCA Civ 1428, [2003] Ch 18, where a shareholder’s
claim was allowed to proceed because it was not reflective of the company’s loss. The question
of reflected losses is discussed further at 14.41.
In Dexter Ltd v Vlieland-Boddy [2003] EWCA Civ 14, LTL 24/1/2003, the defendant in the second
claim was the brother of the defendant in an earlier claim based on the same facts. It was held
that the burden was on the defendant to show that the second claim was abusive. Applying a
broad merits-based approach, taking into account the fact the defendants were different and
that the first claim resulted in an unsatisfied judgment, the second claim was allowed to
proceed.
It will only be an abuse of process to challenge the findings in the earlier claim if it would be
manifestly unfair to a party in the later claim for the issues to be relitigated, or if relitigating
will bring the administration of justice into disrepute (Secretary of State for Trade and Industry v
Bairstow [2003] EWCA Civ 321, [2004] Ch 1). Where an issue, which is raised on taking accounts
following judgment, was before the trial judge, but was not decided definitively, the question
is whether a party is misusing or abusing the process of the court in raising the issue again
(Tannu v Moosajee [2003] EWCA Civ 815, LTL 20/6/2003).
Where the first and second claims are of a different nature, compelling reasons are required
before the later claim will be struck out (Specialist Group International Ltd v Deakin [2001] EWCA
Civ 77, LTL 23/5/2001). In Heffernan v Grangewood Securities Ltd [2001] EWCA Civ 1082, LTL 19/6/
2001, proceedings were commenced by a mortgagee which were compromised in 1995 on
terms that the mortgagors would pay the arrears over the remaining term of the mortgage. In
1997 the mortgagors commenced their own claim seeking a declaration that the original
mortgage was not binding. This second claim was struck out because the mortgagors should
have raised this issue in the first claim.
Estoppel preventing application to strike out In Johnson v Gore Wood and Co. [2002] 2 AC 1 33.16
the House of Lords considered whether a court should refuse to strike out a second claim,
which is alleged to be an abusive relitigation of an earlier claim, because of the defendant’s
previous conduct, in particular where the second claim was taken into consideration when
reaching a settlement of the first claim. This is best considered as an estoppel by representation,
with the key question being whether it would be unconscionable for the defendant to apply
for striking out.
Fresh evidence Claims have been allowed even though they involve questioning the 33.17
decision of a court of competent jurisdiction if fresh evidence has come to light since
the earlier decision, or where the second claim is a professional negligence claim against the
solicitors acting for the claimant in the first claim, see Walpole v Partridge and Wilson [1994]
QB 106. A damages claim was permitted to proceed, subject to stringent conditions, in
Sweetman v Shepherd (2000) The Times, 29 March 2000, despite the fact that it could have been
brought by contribution proceedings in an earlier claim.
Reviving earlier claim In Buckland v Palmer [1984] 1 WLR 1109 it was held to be an abuse of 33.18
process to commence a second claim in respect of the same cause of action as was raised in an
Part H Interim Applications
348
earlier claim. The claimant’s car had been damaged in a motor accident. Repairs cost £1,142.
She claimed on her insurance, and brought proceedings against the defendant claiming the
£50 excess not paid by her insurer. This claim was stayed when she accepted a payment into
court. The insurer then commenced a second claim in the name of the claimant claiming
£1,092, and this claim was struck out as an abuse of process. However, it was possible for the
insurer to apply for the first claim to be revived (as it had not proceeded to judgment) and for
the original claim to be amended to include the full costs of repairs. A comment was made
in Bradford and Bingley Building Society v Seddon [1999] 1 WLR 1482 that abuse of process cases of
this nature will perhaps be less frequent under the CPR, because of the requirement that the
claimant must sign a statement of truth in relation to the second claim, which might be
difficult given an earlier, inconsistent, claim.

From a very useful text book

[frass1]

Re: Cohens/CL Finance taking me to court AGAIN. Help!

This looks bad for me! From the above "

There is no issue
estoppel if there is no definitive decision on the issue in the first claim (Tannu v Moosajee [2003]"
EWCA Civ 815, LTL 20/6/2003)

Read more at: Cohens/CL Finance taking me to court AGAIN. Help! - Legal Beagles Consumer Forum

[frass1]

Re: Cohens/CL Finance taking me to court AGAIN. Help!

Received notice of assignment dated 24 Nov 2008 from Lewis Debt Recovery assigning to CL Finance.

Received dodgy photocopy dated 24 Nov 2008 from Egg supposedly, Notice of assignment to CL Finance.

Received Court forms, issue date 8 Dec 2008. Stating that the credit agreement was between me and Barclays Bank, not Egg!

Some days later received letter from Cohen and co solicitors dated 8 Dec 2008! "Amended Particulars Of Claim Pursuant to Civil Procedure Rule 17.1.1" Changing Barclays to Egg.

9 Dec 2008 sent the below to CL Finance. Received copy 8 weeks later dated 10 Feb 2009.
Dear Sir/Madam
With reference to the above agreement, we would be grateful if you would send us a copy of this credit
agreement and a full breakdown of the account including any interest or charges applied. We understand that
under the Consumer Credit Act 1974 [sections 77-79], we are entitled to receive a copy of any credit
agreement and a statement of account on request. We enclose a payment of £1 which represents the fee
payable under the Consumer Credit Act 1974.
We understand a copy of any credit agreement along with a statement of account should be supplied within 12
working days.
We understand that under the Consumer Credit Act 1974 creditors are unable to enforce an agreement if
they fail to comply with the request for a copy of the agreement and statement of account under these sections
of the Act.
We look forward to hearing from you.
Yours faithfully


11 Dec 2008 sent "request for information under the civil procedure rules" to Cohen and co. I never received anything!

Sent defence below.
p { margin-bottom: 0.21cm; } For reference...
In the Northampton County Court
Claim number xx

Between
CL Finance Limited - Claimant
and
xxxx- Defendant



Defence

• I am xx xx, of xxxxx, and I am the Defendant in this matter. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

• The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

• The claimants’ particulars of claim discloses no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant’s claim.

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

4. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet.


5. In respect of that which is denied, on 11/12/2008 I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request.

• To date the claimant has ignored my request under the Consumer Credit Regulations, and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested
• It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.
• Notwithstanding point 8, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

• Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

• Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

• In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

• Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 6 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

• Statement of Truth
  
  
  I, xxx, believe the above statement to be true and factual
  
  
  Signed …………………
  
  Date

Received court acknowledgement on 9 Jan 2009.

Received General Directions Order on 19 Jun 2009.
"The court will deal with the application to lift the stay without hearing under CPR 23.8(c)
It is ordered that:
The application to lift the stay and enter judgment is refused
The wording of the application is ungrammatical and therefore nonsensical, and there being no statement of truth to part C of the application. This is not acceptable from a firm of solicitors.
Note: A party affected by this order may under Rule 23.10 apply to have it set aside, varied or stayed. Such a party must apply under Rule 23.10 within 7 days of service of this order."

I thought "that's ok" and did nothing. I heard nothing until "Notice of impending Legal Action" from Cohen and co dated 24 Sept 2010.

[Godzilla]

Re: Cohens/CL Finance taking me to court AGAIN. Help!

Hello frass1

What does the first Particulars of Claim state?

What does the second Particulars of Claim state?

Kind Regards

Godzilla

[frass1]

Re: Cohens/CL Finance taking me to court AGAIN. Help!

First Dec 08 says:
The claimant's claim is for the sum of xy21.05 being monies due from the Defendant to the Claimant under a regulated credit agreement between the Defendant and Barclays Bank PLC T/a Barclaycard under reference 4627xxxxxxxxxxxx and assigned to the Claimant on 20th October, 2008
The Defendant has failed to make payment in accordance with the terms of the agreement and a default notice has been served upon the Defendant Pursuant to Section 87(1) of the consumer Credit Act 1974,
The Claimant claims the sum of xy21.05


------------------------------- merged -------------------------------

2nd of Oct 10 reads thus :
The claimant's claim is for the sum of xy26.05 being monies due from the Defendant to the Claimant under a regulated credit agreement between the Defendant and EGG Banking PLC under reference 4627xxxxxxxxxxxx and assigned to the Claimant on 20th October, 2008 notice of which has been given to the defendant.
The Defendant has failed to make payment in accordance with the terms of the agreement and a default notice has been served upon the Defendant Pursuant to Section 87(1) of the consumer Credit Act 1974,
The Claimant claims the sum of xy26.05

Read more at: Cohens/CL Finance taking me to court AGAIN. Help! - Legal Beagles Consumer Forum

------------------------------- merged -------------------------------
I have highlighted in red, reference number is the same in both cases.

[Godzilla]

Re: Cohens/CL Finance taking me to court AGAIN. Help!

First Dec 08 says:
The claimant's claim is for the sum of xy21.05 being monies due from the Defendant to the Claimant under a regulated credit agreement between the Defendant and Barclays Bank PLC T/a Barclaycard under reference 4627xxxxxxxxxxxx and assigned to the Claimant on 20th October, 2008
The Defendant has failed to make payment in accordance with the terms of the agreement and a default notice has been served upon the Defendant Pursuant to Section 87(1) of the consumer Credit Act 1974,
The Claimant claims the sum of xy21.05


------------------------------- merged -------------------------------

2nd of Oct 10 reads thus :
The claimant's claim is for the sum of xy26.05 being monies due from the Defendant to the Claimant under a regulated credit agreement between the Defendant and EGG Banking PLC under reference 4627xxxxxxxxxxxx and assigned to the Claimant on 20th October, 2008 notice of which has been given to the defendant.
The Defendant has failed to make payment in accordance with the terms of the agreement and a default notice has been served upon the Defendant Pursuant to Section 87(1) of the consumer Credit Act 1974,
The Claimant claims the sum of xy26.05

Read more at: Cohens/CL Finance taking me to court AGAIN. Help! - Legal Beagles Consumer Forum

------------------------------- merged -------------------------------
I have highlighted in red, reference number is the same in both cases.

So this is precisely the same account then as in the first claim that is now stayed?

Kind Regards

Godzilla

[pt2537]

Re: Cohens/CL Finance taking me to court AGAIN. Help!

complete abuse of process

Strike the second claim out

[frass1]

Re: Cohens/CL Finance taking me to court AGAIN. Help!

Yes it is exactly the same account.

[Caspar]

Re: Cohens/CL Finance taking me to court AGAIN. Help!

To cover your back, do whatever you need, if anything, but realistically they have not got a hope in hell of getting this into a court.