second bite of the cherry - interesting question...

[Daryl32]

I am taking on a bank. They had my claim successfully struck out after claiming it was the same as one I brought against them two years ago. It clearly is not, but the Judge believed them.

I had to make an application, but the Court staff misinformed me about attaching evidence - they said i would be given a date to submit this by, when the judge went ahead and considered the application WITHOUT a hearing and so dismissed the application.

I am now appealing.

My intention is to attend the appeal hearing. If unsuccessful there, I plan to start a new claim. My thoughts are that this bank have already stated that the claim is an already litigated one and had it removed on that basis, so if I make it clear in my POC that it is a BRAND NEW CLAIM, it should be okay.

I cannot see the company having a leg to stand on if they state it is second bite of the cherry again, as either a repeat of the claim from two years ago, or the most recent one. They can't now say "this was litigated this year and dismissed" when I am pointing out in my POC that this was wrongly dismissed based on a lie and has never been properly aired before.

My only concern is that if my appeal fails, will I have somehow made the claim subject to the second bite of the cherry rule?

[jaguarsuk]

Unless you can demonstrate at the appeal that the claim is new and not an attempt at the same issue from years ago, any new claim you bring the bank are going to apply to be struck out as being a duplicate.

[Daryl32]

Unless you can demonstrate at the appeal that the claim is new and not an attempt at the same issue from years ago, any new claim you bring the bank are going to apply to be struck out as being a duplicate.

i can prove that easily. However, the appeal is more about the application itself being dismissed due to my not filing evidence, due to misinformation by Court staff.

My question is, should the appeal fail and the decision to strike out my claim as being the same stand. Then, surely, as the last claim has been earmarked as identical to a claim two years ago, I would be able to start a new claim, state this is entirely new and separate from my last claim, and they would not be able to say it is second bite of the cherry? It would be a catch 22 if they did as they would be admitting that they lied.

[Daryl32]

Advice peeps?

[jaguarsuk]

Advice peeps?

Your claim was struck out on the basis that it was the same issue as previously and to have that overturned you are going to have to prove that it wasn't the same issue. If you cannot then the appeal will fail.

If you cannot prove the claim is about a different issue at appeal then you will not be able to when the bank applies to strike out any new claim.

Physically you can file as many claims as you like until the court gets bored of you doing so and starts sanctioning you with costs orders in favour of the Defendant.

Why didn't you defend the Claimants application to strike out?

What application were you making?

And how are the two applications related?

[Daryl32]

Ah you see there's the rub jaguarsuk

Why didn't you defend the Claimants application to strike out?
It was never an application, just one sentence written in their Defence. I told them it was a lie, and that they knew it was a lie and that I knew that they knew that it was a lie, and told the repeatedly to email the court and correct their BS before it maybe led to the claim being struck out when a Judge saw their Defence. They refused, after responding to those demands - case was struck out.

What application were you making?
To reinstate based on the above.

And how are the two applications related?
The second application was made on advice of Court staff after the first was dismissed due to having no evidence attached - the Court staff advised me a date would be set for a hearing as I had requested a hearing in the first application, and a date set to make my submissions. This turned out to be false and the Judge considered the application without a hearing. Not seeing my evidence i.e. the email chains, he dismissed the application.

The second application led to the Judge stating I needed to appeal the decision on the first application, not make a second identical application.

[jaguarsuk]

My opinion still stands the same, if the court struck it out of their own volition based on the defence then it believes it to be the same issue. The only way you win your appeal is to prove it is a different issue, if you fail to do that when you bring a new claim expect the bank to do the same again and the court to rule in the same way.

[Daryl32]

Thank you jaguarsuk but I believe the appeal is to question the admin. issues over dismissing my application, and I need to get that application reinstated before I would then prove they are not the same claims.

So my question is - if a Judge decides that the appeal must fail, then am I right in thinking that as there would be no judgement as to the merits of whether both claims are identical, I could just go ahead and litigate again and point out that this IS a new claim.

[jaguarsuk]

Thank you jaguarsuk but I believe the appeal is to question the admin. issues over dismissing my application, and I need to get that application reinstated before I would then prove they are not the same claims.

So my question is - if a Judge decides that the appeal must fail, then am I right in thinking that as there would be no judgement as to the merits of whether both claims are identical, I could just go ahead and litigate again and point out that this IS a new claim.

No because you are in denial about what your appeal is about.

I'm going to unsubscribe to this thread as I have offered all the help I can.

[Celestine]

Just another point to consider, court staff are not meant to give 'legal advice' and if they do, you are not meant to rely on it. I know that's really rubbish in a situation like this, but I think that issue might also give you problems.