Restart a civil claim

[Barbarah]

Hi,

Does anyone know, in the UK Small Claims, if a case is struck out before it even gets off the ground, due to a lack of acceptable Cause of Action in the Particulars of Claim, is it acceptable to refile with a new filing/claim fee, and a properly formatted POC and Cause?

[Kati]

Amethyst ??

[Barbarah]

Anyone?

[R0b]

Short answer is no.

The procedure depends on whether or not the claim was struck out of the Court's own initiative or whether it was struck out for non-compliance of an order by the court. If it was the former, then you would need to appeal the strike out and the usual rules for appealing applies but if the latter, then you can ask the Court to set aside the order.

Generally, a court would not interfere with a previous decision to strike out the claim however, strike outs are usually a last resort and are seen as draconian so if the claim was struck out by the Court without having an opportunity to remedy the non-compliance, then you could have a successful appeal.

If you were to try and file a fresh claim with a revised, compliant Particulars of Claim, then if the defendant was savvy enough or was informed in some way, their defence would include something along the lines of res judicata. That means you cannot re-litigate the same thing twice when the matter already been decided. As the court had already struck out your claim and you attempt to try a back door route, it could be seen as an abuse of process on your part and therefore open yourself up to a costs order against you, particularly if the defendant has instructed solicitors to defend the claim.

[Barbarah]

Thanks rob

My understanding was that as it was specifically struck out for lacking a "cause of action" (Judge's words) then estoppel could not be used to stop a new claim, as estoppel specifically refers to the "same cause of action being brought before the Court twice". And as there was no cause of action to begin with, how can it therefore be said to have been brought twice?

I filed the claim again, won it by default - a total of £200 awarded, and then the Defendant paid £255 for a new application to set aide Judgement and have the case continue. Was done almost immediately, on the grounds that they were waiting to speak to somebody in order to file a correct Defence. They've also claimed Estoppel. Can I use this? The fact that they're wasting everyone's time by paying £255 for an application against a £200 Default Judgement?

Of note - the Court struck out the original claim of its own volition - this was a Court that the County Court Bulk Centre sent it to by mistake when it should have gone to my home Court in another part of the country entirely. And the Judge in the wrong Court then threw it out after one look.

Any advice?

[R0b]

I think you are being too literal and pedantic in relation to whether or not it's the same cause of action. Looking at it another way, you commenced legal proceedings regarding a particular issue. The court threw it out because that issue lacked any cause of action.

So, did you file a new claim for the same issue? If the answer is yes then estoppel applies. If it is for an entirely different issue then estoppel doesnt apply. It's irrelevant as to the reason why the claim was struck out, it comes down to whether or not you are trying to re-litigate the same issue.

Against what I said in my last post you decided to issue a new claim (presumably for the same issue) and the Defendanr has managed to get it set aside - why do you think he is wasting everyone's time? He has a right to defend the claim and if I was in the defendant's shoes, I would have made an application to set aside the default judgment and at the same time requested summary judgment on the basis that you've already issued a claim which was struck previously struck out.

I would have also asked for the cost of the application (£255) as the defendant was successful plus any other costs. If none were awarded then you got lucky because set aside applications are not subject to the no costs rules.

Not much more I can add really other than if the defence is estoppel then you'll need a pretty good reason why you should continue the claim, given that the same issue was struck out previously and you didn't follow the correct procedure.

I'm also pretty certain that an order such as a strike out where the court has done it of it's own volition will contain wording at the end that says you can apply to set aside the order or vary it within 7 days or appeal it. Again if you didn't follow that process then you'll either have to drop your claim or press ahead and see if you get lucky

[Barbarah]

What would be exceptional grounds to overrule estoppel?

[R0b]

Very little. Something such as a change in the law or where the case involves fraud and possibly fresh evidence.

[Barbarah]

Okay peeps, here is the deal...

My first claim, mentioned in the original post, was against JD Wetherspoon. One of their pubs brought me cold food, and then as I was in a rush and could not wait for another meal, I asked for a refund.

Chased up said refund on their Facebook page weeks later and was told the refund would be forthcoming. Took a screengrab of that conversation.

Then, unbeknownst to me, they shut down all social media. I had no idea, and thought I'd been blocked. They did not think to contact me before taking it down, or what the ramifications would be. They have stated that I should have known what they were doing because it was "in the news".

Then I spent an extortionate amount of money dealing with their rude and stupid staff from abroad. The receptionist I spoke with kept hanging up on me, thinking I was someone else who had been calling about a completely different complaint! So I ended up taking them to Court when I could not get through to anyone in their head office for days and over maybe fifty phonecalls. I was crazy mad about the situation.

It was allocated to the wrong Court (i.e. not my home Court) and dismissed due to lack of cause of action. The member of staff in Wetherspoon's legal department that I was talking to turned out to be a complete prick, pardon my French.

I then took advice from a member of Court staff and was told that I could start a new claim, as the original claim was sent to the wrong Court to be allocated to track. Also, I could identify an actual cause of action in this new claim.

I started my new claim, and won by Default. Total awarded £200.

Then this prick in their legal department (pardon my French) paid £255 for an application to set the Judgment aside. He did so promptly, but the reasoning was dodgy - he knew he was filing the Defence late, and filed late anyway.

The Judge ordered a telephone hearing, and both parties were given a month's notice of that. Wetherspoon were meant to organise it.

A week before the hearing I reached out to them, asking where was my contact about organising the hearing? by the weekend before the Monday and the hearing on that day, I had to email the Court, to tell them it was now too late to change my travel plans on the Monday (I was due to be on a train) and I asked for the application to be dismissed as I had not heard from them about organising this, and it had proven a waste of my time preparing for the hearing.

I heard nothing after this email was sent.

Now the Judge has adjourned after they contacted the Court, and they have emailed me to say they did not have enough time to arrange the hearing which is why they emailed the Court to ask for an adjournment. From what I have been told it could have been arranged in an hour.

I am furious. They are asking in their application for my claim to be dismissed due to its being brought twice.

Proportionality has gone out of the window here, in my opinion. Paying £255 against a £200 Judgement. I checked and it is one of the over-ridging objectives of the CPR. They now also have to pay to get to the new hearing, or for the telephone conference if it ends up that way.

What is most galling for me is the time I am wasting on this, and the fact that I am in the right here, and I am owed this money.

Finally, the new hearing is a physical hearing, and they have sent an email to the Court asking for it to be by telephone for "the ease of both parties." I have already emailed the Court telling them that Wetherspoon do not speak for me and that I am fine with a physical hearing,

So opinions? Thoughts? Should I cancel this claim and being a new claim against the specific pub I have issue with? Or can I have their application dismissed? Can I get the original claims dismissal overturned as it was sent to the wrong Court/Judge? Also, I was not given any opportunity to amend my Particulars of Claim or identify a cause of action, and I would say it was pretty obvious what said cause of action was - I was owed money by them. What about claiming for Litigant In Person costs of £19 per hour? In preparation for both hearings that easily runs to £100.

Finally - I sent a WITHOUT PREJUDICE SAVE AS TO COSTS offer to settle of £100. They turned down and told me they would only accept my dismissing the Default/claim myself.

Over to you

[Barbarah]

Anyone?

[Barbarah]

*AHEM*

[Amethyst]

How did you pay for your meal originally and how much was it ?

Did they promise the refund in writing ?

What were your original particulars of claim that were struck out for 'no cause of action' ? The correct way to have dealt with that would have been to apply to the court to set aside that decision and to amend your particulars of claim.

That aside, you do now have a hearing for your new claim so it is progressing - what are your particulars and their defence in play for this claim ? ( presumably their defence is not solely on the 'second bite of the cherry' issue. )

Both parties do have a responsibility to mitigate their losses, a telephone hearing = lower costs - IF costs get awarded against you at this hearing ( although small claims the other side could argue you have not acted reasonably and ask for full costs )

[Barbarah]

Meal was paid for by credit card, and cost me £15.

The refund was promised in writing, I have proof.

Original Particulars of Claim:

"I didn't eat a £17 meal in Gatwick Wetherspoon. It came cold and I had a flight to catch. I was told I'd be refunded. That Facebook message disappeared. I thought they'd blocked me. They didn't have the common sense to contact me before deleting all social media. I called and spoke to a rude, condescending secretary, who repeatedly hung up, claiming I had previously called. She was mistaken. Idiot. I spent £96 on calls. I was forced to litigate. Another terrible member of staff, [CENSORED], was condescending and got my claim dismissed rather than deal with it. Court staff advised me to start a new claim as is was wrongly dealt with, sent to he wrong Court. I am alleging breach of verbal contract and subsequent call costs, and £50 filing fees. The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 11/04/2018 to 16/08/2018 on £160.35 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.04."

Their Defence is essentially second bite of the cherry argument.

[R0b]

If there's one thing in any of this I suggest you do, that would be to tone down your aggressiveness and personal attacks. I don't know you and based on your original particulars of claim and the way you are describing things, I'm already forming a negative view of you. I can probably imagine the correspondence between you and the lawyer at Wetherspoons. Impression is everything and the way you have drafted your particulars as well as some responses, isn't going to go down well with a judge.

At the end of the day, your case was struck out for lack of cause of action and you have yet to confirm whether the order stated that you had the right to set aside or vary the decision of the court (irrespective of whether it was allocated to your home court or not). If the order did, and you failed to comply because you didn't want to pay the relevant fee, then you are at fault and in which case you need to apply for relief from sanctions to the judge in this upcoming hearing.

I'm rather surprised that for the cost of a £17 meal you decided to spend £96 making calls to Wetherspoons instead of enjoying your holiday and then calling them when you arrived home. Do you think that was proportionate and reasonable?

You talk about proportionality when Wetherspoons chose to set aside the default judgment, but they had a right to do that and proportionality is only one of the factors under the overriding objective, another being compliance with any pre-action protocols, directions or orders. I'm assuming that the order by the court did in fact have the statement about setting aside or varying the order but you ignored that, so if that is the case then you failed to comply with the overriding objective too.

Issuing a second claim is not automatically a second bite of the cherry, and instead of trying to explain it I would suggest you take a read of the link below which is a High Court decision giving guidance on when a case is or isn't an abuse of process i.e. second bite of the cherry.

Practical Law: When is a second bite of the cherry an abuse of process?

As for the strike out itself, they are usually last resort and the superior courts have time and again reiterated this. County Courts are a lottery and some of those decisions are now being handled by non-judges but legally trained court staff. I'm not saying this is the case as we haven't seen the order but I would also suggest you read the following article as it refers to a Supreme Court case in which the judge confirmed that strike out ought to have been last resort. In your case, the court could have acknowledged that you were a litigant in person and perhaps made an allowance (or at least an understanding) that you maybe didn't know the rules on pleading your claim and instead should have made an unless order whereby you had the opportunity to remedy the poor particulars by a certain date. To be clear however, not knowing the rules is not an excuse and you are not afforded special treatment because you are a litigant in person, you still have to comply with the same rules as everyone else.

New Law Journal: Striking out is last resort

Regarding your point about issuing a further fresh claim against the name of the pub itself, I would caution against that because first of all, you need to consider whether the defendant is actually the name of the pub or if it is Wetherspoons. Unless it's a franchise of sorts, the real defendant is likely to be Wetherspoons and if you issue a third claim, I wouldn't be surprised if their lawyers take a harsher stance and seek costs not only for an abuse of process but also malicious prosecution of civil proceedings and any other arguments they might have.

I know I've said it at the beginning of my post, but you should really consider making sure that you don't come across as aggressive during the hearing because at the moment, you don't seem to be placing yourself in a good light.

[Amethyst]

You've mentioned in those particulars of claim about the problems with the original claim. So I assume they are the current particulars of claim?

What were the Particulars of Claim used in the first case that were struck out.

And do you have a copy of the original strike out order?

Did you go through the full complaints process with Weatherspoons and issue a letter before action before issuing the claim?