Claim for malicious prosecution

[R0b]

Re: Claim for malicious prosecution

Just to clarify, a claim for MP does not require proceedings to have been completed and found in your favour as that is the criteria for a claim in malicious prosecution in criminal law (I suspect you may have read a post from Openlaw15). The two part test above can be proven during the course of proceedings and is a valid cause of action as a counterclaim.

[sapnker]

Re: Claim for malicious prosecution

Just to clarify, a claim for MP does not require proceedings to have been completed and found in your favour as that is the criteria for a claim in malicious prosecution in criminal law (I suspect you may have read a post from Openlaw15). The two part test above can be proven during the course of proceedings and is a valid cause of action as a counterclaim.

Cheers for that. I have already filed my defence on: 17/09/2016.
So, is it possible to counterclaim now?
I have looked at my paperwork at MOL but I do not know how I would do it now!
Cheers.

[R0b]

Re: Claim for malicious prosecution

What stage is the proceedings? is there a trial date coming up?

You would need permission from the court to add a counterclaim and that would be the N244 which is made without notice, but you would also need to set out in the N244 the additional information in PD 20, paragraph 2.1 - https://www.justice.gov.uk/courts/pr.../pd_part20#2.1

You'd have to formally set it out like a particulars of claim as an example below but it would say Counterclaim instead of Particulars of Claim




In identifying your cause of action, you would need to make reference somewhere that the Claimant in adding you as a party to the claim does not have any reasonable or probable cause to do so and that the proceedings have been brought maliciously, presumably on the basis of you making a complaint on behalf of your mother.

You could also indicate that you will rely upon the Supreme Court Case Willers v Joyce and another (insubstitution for and in their capacity as executors ofAlbert Gubay (deceased)) [2016] UKSC 43

[sapnker]

Re: Claim for malicious prosecution

What stage is the proceedings? is there a trial date coming up?

You would need permission from the court to add a counterclaim and that would be the N244 which is made without notice, but you would also need to set out in the N244 the additional information in PD 20, paragraph 2.1 - https://www.justice.gov.uk/courts/pr.../pd_part20#2.1

You'd have to formally set it out like a particulars of claim as an example below but it would say Counterclaim instead of Particulars of Claim




In identifying your cause of action, you would need to make reference somewhere that the Claimant in adding you as a party to the claim does not have any reasonable or probable cause to do so and that the proceedings have been brought maliciously, presumably on the basis of you making a complaint on behalf of your mother.

You could also indicate that you will rely upon the Supreme Court Case Willers v Joyce and another (insubstitution for and in their capacity as executors ofAlbert Gubay (deceased)) [2016] UKSC 43

Thanks for the good information.
We are awaiting mediation or trial date.
Two questions if I may.
1. Can I also use the same N244 for application for striking out as well as the malicious prosecution? I have already prepared the striking out, but I wonder if I can put them both together rather than two separate N224's.
2. What amount would I be claiming for with relation to malicious prosecution and for what, mental distress, punitive damages? Thank you for the example.
Another example with relation to the amount and which damages to be claimed would help me a lot.
I should be in a position to file it tomorrow and I promise to post it on here and keep everyone updated.
I have included below the striking out claim I have already drafted, personal details redacted of course.
Feel free to comment.
Cheers.
Paul.

My mother xxxxxxxxxxxxxxxxxxx, entered into a contract (signed) with xxxxxxxxxxxxx, for the installation of a new gas central heating system. xxxxxxxxxxxxx, is not my home and I have no financial interest in it. I had to get involved due to the quality of work performed by xxxxxxxxxxxxxxx. (The Gas Safe Register, served a defects notice on xxxxxxxxxxxxxx.) I have no written or verbal contract with xxxxxxxxxxxxxx whatsoever. On 24/08/2016, I emailed the claimants solicitors demanding that I be removed as a defendant on the summons forth with. I received no reply. I filed my defence against xxxxxxxxxxxxx claim on 17/09/2016 stating that I have never entered into any contractual agreement with the claimant, and therefore deny any liability. I put the Claimant to strict proof to:
(a) Show how I entered into an agreement with the claimant.
(b) Show how and when the agreement was made.
I received a letter from the claimant's solicitors dated 27/09/2016 advising me that they intended to proceed with the claim against me, but no explanation as to how I entered in to a agreement with xxxxxxxxxxxxxx.

3. What order are you asking the court to make and why?

I am asking the court to strike out the claim made by xxxxxxxxxxx, as I have no contract written, verbal or otherwise,with
I believe the claim issued against me by xxxxxxxxxxxxxxxx xxxx is malicious, vexatious, without merit, ill founded and is designed to bully me and is in revenge for helping my mother
xxxxxxxxx.
I make this application under Rule 3.4(2)(a) or (b)

[R0b]

Re: Claim for malicious prosecution

1. Can I also use the same N244 for application for striking out as well as the malicious prosecution? I have already prepared the striking out, but I wonder if I can put them both together rather than two separate N224's.

You could try and incorporate both onto the application form but the court may require two separate application, though wouldn't make sense to do that if you are exempt from fees. Just a point to note, you can make an application for both strike out and sumary judgment at the same time, so if the judge does not find in favour on strike out may still find in favour for you on summary judgment.

To incorporate the counterclaim you would have to frame the wording in such a way like: "The Defendant makes an application for (1) an order that the claim be struck or an order of summary judgment; or (2) in the alternative, the Defendant requests permission from the Court to file a counterclaim"

2. What amount would I be claiming for with relation to malicious prosecution and for what, mental distress, punitive damages? Thank you for the example.

That's something you have to work out, I don't imagine it would be a huge amount but rather than claiming a specified amount, you could instead bring the counterclaim on the basis of an unspecified claim. That means you leave it up to the court to determine the amount of damages. This could be from as little as £1 to whatever the court sees fit, though you could give specify in your counterclaim that you feel the damages you are seeking falls between X & Y.

As for your application for strike out, try not to use the first person or mother. Instead you should refer to either the names on the claim form or it is common to say the Claimant or the First Defendant or Second Defendant etc.

As above, I also think you could apply for summary judgment at the same time in your favour and then claim costs that way. There is also the potential for a counterclaim of abuse of civil process in addition to malicious prosecution. The difference being that abuse of civil process does not require malice to be proven.

[des8]

Re: Claim for malicious prosecution

Doesn't abuse of civil process require successive actions in respect of the same matter?

[R0b]

Re: Claim for malicious prosecution

Sorry Des not sure I am following, when you say successive actions are you referring to a claimant bringing the same claim twice?

[des8]

Re: Claim for malicious prosecution

Sorry, I was unclear (and confused myself)
I had been reading about Walbrook v Fattal and asked the question without thinking.

[R0b]

Re: Claim for malicious prosecution

I see, that case concerned was whether or not it was an abuse of process as to whether a previous issue could have been raised in the prior proceedings and the case related to a strike out application but there is in fact a tort of civil process (see Grainger v Hill; a comprehensive review of the case law was set out in Land Securities v Fladgate Fielder 2009 and even Nomura v Granada 2007) .

There's a number of ways there can be an abuse of process and its generally seen as an improper motive or collateral advantage, but similarly in Attorney General v Barker it was defined as using the process for a purpose or in a way significantly different from its ordinary and proper use.

Abuse of process also falls under the remit of strike out applications but is not necessarily confined to it. Deliberate litigation which causes expense or harassment is also an abuse in Wallis v Valentine 2002

[sapnker]

Re: Claim for malicious prosecution

I see, that case concerned was whether or not it was an abuse of process as to whether a previous issue could have been raised in the prior proceedings and the case related to a strike out application but there is in fact a tort of civil process (see Grainger v Hill; a comprehensive review of the case law was set out in Land Securities v Fladgate Fielder 2009 and even Nomura v Granada 2007) .

There's a number of ways there can be an abuse of process and its generally seen as an improper motive or collateral advantage, but similarly in Attorney General v Barker it was defined as using the process for a purpose or in a way significantly different from its ordinary and proper use.

Abuse of process also falls under the remit of strike out applications but is not necessarily confined to it. Deliberate litigation which causes expense or harassment is also an abuse in Wallis v Valentine 2002

Hi guys, I have decided on the final drafts, so I have put them on here for people to view and pass comments before I issue them.
All comments welcome.

3. What order are you asking the court to make and why?

The Defendant makes an application for an order that the claim be struck or an order of summary judgment. I have no contract, written verbal or otherwise, with the claimant.
I make this application under Rule 3.4(2) (a) or (b) or Part 24.
3. What order are you asking the court to make and why?

The defendant makes a application for a counterclaim against the claimant for malicious prosecution.
The defendant makes a claim for unspecified damages.
The defendant feels that the value of the damages is below £5000.

10. What information will you be relying on, in support of your application?

The claimant in adding me to the claim does not have any reasonable or probable cause to do so and that it is my belief that the proceedings have been brought maliciously by the claimant, presumably on the basis of me giving assistance to the other defendant and making a complaint to the relevant authorities on behalf of the other defendant.
The defendant will rely upon the Supreme Court Case's Willers v Joyce and another in their capacity as executors of Albert Gubay (deceased)) [2016] UKSC 43.

Again In relation to the N244 I need help in deciding am I the claimant defendant etc.

Cheers



10. What information will you be relying on, in support of your application?
he other defendant Mrs xxxxxxxxx, entered into a signed contract with the claimant, for the installation of a new gas central heating system. The other defendants home address xxxxxxxxxxxxxxx, is not my home and I have no financial interest in it. I had to get involved between the other defendant and the claimant due to the quality of work performed by the claimant. (The Gas Safe Register, served a defects notice on the claimant.) I have no written or verbal contract with the claimant whatsoever. On 24/08/2016, I emailed the claimants solicitors demanding that I be removed as a defendant on the summons forth with. I received no reply. I filed my defence against the claimants claim on 17/09/2016 stating that I have never entered into any contractual agreement with the claimant, and therefore deny any liability. I put the Claimant to strict proof to:
(a) Show how I entered into an agreement with the claimant.
(b) Show how and when the agreement was made. I received a letter from the claimants solicitors dated 27/09/2016 stating that they intended to proceed with the claim against me, but no explanation as to how I entered in to an agreement with the claimant.
I believe the claim issued against me by the claimants is malicious, vexatious, without merit, ill founded and is designed to bully me and is in revenge for helping the other defendant.

What I need to know is because of this being the counter claim, who is:Claimant’s name
(including ref.)

Defendant’s name
(including ref.)

2. Are you a

Claimant or defendant?

Depends on how you look at those questions and I am not sure. Lol. I am sure someone will tell me who I am!

[R0b]

Re: Claim for malicious prosecution

What order are you asking the court to make and why?

The [First / Second] Defendant asks the court to make the following order:
(1) to strike out the Claimant's claim against the [First / Second] Defendant under CPR 3.4(2) (a) and/or (b); or alternatively
(2) an order for summary judgment under CPR 24; or alternatively
(3) permission to file a counterclaim for malicious prosecution

10. What information will you be relying on, in support of your application?
The [First / Second] Defendant will submit that the contract was entered into between the Claimant and the [First / Second] Defendant for the installation of a new gas central heating system (the "Works") at the [First / Second] Defendant's address. The [First / Second] Defendant has had no dealings with the Claimant nor does the [First / Second] Defendant live at the address in which the Works were carried out. The [First / Second] Defendant became involved in the matter after requesting to do so by the [First / Second] to act on her behalf. The [First / Second] Defendant has repeatedly written to both the Claimant and the Claimant's solicitors [insert name], to remove him as a party to the claim but has so far been ignored. The [First / Second] therefore had no choice but to issue the application as the Claimant's claim is wholly without merit and considered vexatious.

1. The Claimant's name is the same name on the Claim form
2. You are the Defendant but may depend if you name is first or second

I would also consider attaching a witness statement from your mother too, if you include a witness statement from her which confirms that the agreement was entered into between herself and the trader, then it will help strengthen your case.

Another point to note is that if they have solicitors acting for them then you would need to confirm if they accept service of the application and to get back to you within the next 7 days. If they don't, then you will send it directly to the Claimant. In those 7 days, it should give you enough time to draft a witness statement from your mother to support your claim, but is entirely up to you.

[sapnker]

Re: Claim for malicious prosecution

I have attached pics of the N244 that I intend to use.
Both myself and my mother got separate summons: (Defendant "Paul xxxxxxx" and 1 other). (Defendant "Linda xxxxxx" and 1 other)
So I can not use 1st or 2nd defendant.
so how should I refer to myself and to my mother?
Its all a learning curve. Lol.
I really appreciate all the advice and help I am being given here.

Thanks.

Paul