Application to Reinstate Claim by Creditor after being Struck Out

[Billy_Bob]

Hi all,

I hoping for some advice to help me deal with a claim made by a creditor that has been struck out once already and attempted to be reinstated.

For a bit of background, I was using the creditor to supply me with materials. Upon receiving statements that contained material I had not been supplied with, I queried the creditor.

After failing to adjust the statement figure for three months, I refused payment for the balance of my account until the matter was sorted out.

I have proof, in the form of delivery tickets with amounts of material showing a delivery quantity of zero but statements showing the material as having been delivered. To add to this, I have proof of other items being wrongly charged to another account with a similar name to mine, and then subsequently re-charged to mine.

The account was transferred to a DCA, who used the wrong creditor name on their communication with me.

The creditor/DCA took me to court, and the claim was struck out after the creditor failed to comply with an order made by the court.

27 Jan 2009 - Claim started by creditor.

10 Feb 2009 - I filed an acknowledgment of service.

20 Feb 2009 - I filed a part defence, admitting around 20% of the claim.

01 Apr 2009 - I filed my AQ.

24 Apr 2009 - The court orders that unless by 4th May 2009 the claimant files a completed allocation questionnaire and pays the allocation fee where appropriate the claim shall be struck out without further order.

18 May 2009 - The court orders that the claim be stayed as it makes no serious attempt to comply with CPR 16.4(1) by setting out a concise statement of the facts. The claimant must amend or substitute its particulars of claim by 4.00pm 03 June 2009 or the claim be struck out without further order.

16 Jun 2009 - Upon the Claimants failing to comply with the order of 18 May 2009 it is ordered that the claim be struck out.

19 Dec 2009 - I receive a letter from the court to inform me that:

It is ordered that - The claimants without notice application dated 02 Dec 2009 attached is refused, Claimant not having produced any re-amended Particulars of Claim to show compliance with the order dated 12 May 2009. Dated 14 December 2009.

I refused to settle the account originally because the creditor was incompetent (and attempted to invoice me for material they had not supplied), they sent the account to a DCA that was incompetent (couldn't even put the correct creditor name on the documents) and they used a solicitor that was incompetent (could not comply with the orders made by the court). Surely there must be a way to prevent these fools from harassing me further?

I have been googling and lots of documents refer to the term 'Abuse of process' with regard to the CPR and some mention a Limited Civil Restraint Order - could anyone advise if any would be appropriate in this instance?

Thanks in advance for any help anyone can offer.

[Guest]

Re: Application to Reinstate Claim by Creditor after being Struck Out

Have you paid them for what they did supply, or at least paid the portion of the claim that you admitted? Unless you have done so, they have a legitimate right to pursue you for that debt.

[Billy_Bob]

Re: Application to Reinstate Claim by Creditor after being Struck Out

@ Cetelco - Thankyou for your reply.

I haven't paid them, but I am willing to pay them, and have always been willing to pay them for the part that I admit to.

I was advised, rightly or wrongly, to withold payment until the end of the case so as to prevent the claimant simply accepting the payment and continuing with a claim regardless.

I simply want some finality to this, its difficult to move a business forward when there might be a claim or they might not be!

[Guest]

Re: Application to Reinstate Claim by Creditor after being Struck Out

From your last dated entry, it seems that the court have dealt with this of their own motion. Have you any indication that they are still attempting to pursue you, or might this be the end of it?

[Billy_Bob]

Re: Application to Reinstate Claim by Creditor after being Struck Out

@ Cetelco

Thanks again for your reply.

The court have refused to reinstate the claim on the basis that the claimant has still failed to comply with the court order - but I have a feeling to claimant will simply amend their POC as requested on the original order and again apply to have the claim reinstated.

Will this happen, and if so, what is the point of stiking a claim out if at some point in the future the claimant can decide they wish to comply with an order and have the claim reinstated?

Thankyou for your comments so far, much appreciated.

[Guest]

Re: Application to Reinstate Claim by Creditor after being Struck Out

I have no idea if it will happen or not, but if it does, given that their claim has little prospect of success based on the facts surrounding the case, you can either successfully defend it, or have it struck out again. If they persist, they may be forbidden to bring another similar claim again, but do not expect too much from the courts in this respect. Everyone is entitled to access to justice and may issue claims if they feel they have a legitimate reason to do so.

One way of settling this might be to send them what you believe is the true figure owed, for the materials that they did supply and inform them that the enclosed payment is tendered in full and final settlement of your account. They only have a small window in which to dispute this before the opportunity disappears.

[Grange01]

Re: Application to Reinstate Claim by Creditor after being Struck Out

Am I right in thinking that if they do not accept the payment as described above as full and final payment, then they must return it? Ergo, accepting it confirms final payment of the whole amount.

[Guest]

Re: Application to Reinstate Claim by Creditor after being Struck Out

No, this is not true. "Full and final settlement" is often found in a letter sent by a party to a contract with a payment or offer of payment in an attempt to settle a dispute between the parties. The cheque, or offer of a cheque is normally for a lesser amount than the disputed sum.

The common view is that if the receiver of the cheque cashes the cheque, or accepts the offer and subsequently cashes the cheque sent then he has been taken to accept the lesser amount as settling the dispute between the parties. A contract having arisen, with the sender proposing the terms of the contract by sending the letter and the cheque/offer, indicating a method of acceptance, that is by cashing the cheque.

This view is incorrect and is supported by previous case law. The correct view is to examine the intention of the receiving party. The intention by the receiving party must be to accept the cheque/offer of payment in settlement/satisfaction of the dispute for there to be a binding contractual settlement of the dispute. In every case, it is a question of fact whether this has occurred or not. (see Stour Valley Builders (a Firm) v Stuart and Another [1993] and The Commissioners of Inland Revenue v Fry [2001])

However, timing is key, as Bracken v Billinghurst [2003] showed where an employer, who had been awarded £45,000 as the result of an adjudication, told the building contractor on the other side that it would accept just £6,000 in settlement of this award. The other side decided to send a cheque to the employer for £5,000 in full and final settlement. However, in this case the covering letter stated that if the offer was not accepted the employer should return the cheque. Two weeks passed before the employer cashed the cheque and wrote to the contractor rejecting the offer in settlement and furthermore stated that it would pursue them for the total award. The court held that this was too long a period for it to have held the cheque and not informed the contractor of its intentions. This delay, combined with the clear terms set out in the contractor's letter, meant that there had been accord and satisfaction (i.e. the debt had been settled at only £5,000).

This last case highlights the dangers present in this area and the importance of acting quickly. One cannot treat a sum received as a payment on account without informing the other party of this intention sufficiently quickly.

Cashing a payment is not an automatic acceptance of your terms, however, paying in a cheque is strong evidence of acceptance by conduct of any offer accompanying the cheque (Cantor Index Ltd v Thomson [2008]) therefore, by cashing your cheque, they have provided objectively strong evidence of acceptance.