Anyone know anything about the Civil Procedure Rules 38.7

**des8** · 7th October 2014, 19:54:PM

Re: Anyone know anything about the Civil Procedure Rules 38.7

I'm answering this as it will bump you up again, not because I know a lot about litigation:tinysmile_twink_t2:
On the understanding that the new claim is basically a re opening of the discontinued case you could apply for a strike out under CPR 3.4 (2) (b) I.e. abuse of court process as it is an attempt to litigate on issues already decided by a court.(Henderson v Henderson) {that would certainly apply if the court had dismissed the case or a consent order issued)
Your case was discontinued and if they have not obtained the court's permission to open proceedings again I doubt they will be favourably received.

**Ebony Princess** · 9th October 2014, 13:40:PM

Re: Anyone know anything about the Civil Procedure Rules 38.7

I just contacted the court to ask whether the claimant needed to obtain permission to bring a new claim. They told me that they didn't and that they could re-list the case at any time. The provisions of CPR 38.7 seem quite clear to me, so why doesn't it seem to apply to my case? Any thoughts?

**Ebony Princess** · 9th October 2014, 14:25:PM

Anyone know anything about the Civil Procedure Rules 38.7

Hi everyone

I just wanted a quick bit of advice. Blemain Finance issued a claim in 2012 and when the matter went to court and the judge was appalled that they were trying to gain possession of a property for such a small amount (1700) and refused to grant them possession. Instead the judge asked that I file a fully pleaded defence on or and that the claimant file and serve their reply.

I filed the defence and then on March 2013 I received a letter from the claimant's solicitors saying that they have been instructed to vacate the court proceedings. I called the court to find out why and they said because an agreement had been reached. No agreement between us has ever been reached. I have had a solicitor look over the loan agreement and she said that according to the terms therein, that I should pay £399.00 which I offered to them and they refused.

I also received a letter from the court saying:

"I can confirm that the court received a letter from the claimant requesting that they wish to withdraw all proceedings. This means that the case is now closed. Please note that you will have to seek legal advice if you are going to issue proceedings against the claimant".

I received a further claim form for possession of property from Blemain Finance and I have to attend court soon. I now have to respond to this claim and wanted to know whether I could use the fact that they previously withdrew their case as part of my defence.

I know from a previous post that Civil Procedure Rules 38.7 might come into effect. Could I possibly use this rule to help me in my defence also?

I just contacted the court to ask whether the claimant needed to obtain permission to bring a new claim. They told me that they didn't and that they could re-list the case at any time. The provisions of CPR 38.7 seem quite clear to me, so why doesn't it seem to apply to my case?

I would really appreciate any advice you could give me.

**Kati** · 9th October 2014, 15:33:PM

Re: Anyone know anything about the Civil Procedure Rules 38.7

Is this the part you are referring to??

Discontinuance and subsequent proceedings

38.7 A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if –
(a) he discontinued the claim after the defendant filed a defence; and
(b) the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.

did you ever find out what 'agreement' was meant to have been reached between yourself and BF??

Did they completely withdraw the claim, or only partially??

Could they be trying to use rule 38.8 instead??

Stay of remainder of partly discontinued proceedings where costs not paid

38.8
(1) This rule applies where –
(a) proceedings are partly discontinued;
(b) a claimant is liable to –
(i) pay costs under rule 38.6; or
(ii) make a payment pursuant to an order under section 194(3) of the Legal Services Act 2007; and
(c) the claimant fails to pay those costs or make the payment within 14 days of –
(i) the date on which the parties agreed the sum payable by the claimant; or
(ii) the date on which the court ordered the costs to be paid or the payment to be made.
(2) Where this rule applies, the court may stay the remainder of the proceedings until the claimant pays the whole of the costs which the claimant is liable to pay under rule 38.6 or makes the payment pursuant to an order under section 194(3) of the Legal Services Act 2007.
(Rules 44.9 and 46.7 contain provisions about applying for an order under section 194(3) of the Legal Services Act 2007.)

It would help us to advise you if you could post up copies of any letters etc... you have received (all identifying details removed) so we can see what's been written so far :tinysmile_grin_t:

Kati x

**des8** · 9th October 2014, 18:57:PM

Re: Anyone know anything about the Civil Procedure Rules 38.7

Did you make contact by 'phone or in writing?
CPR38.7 clearly states 38.7 A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if –(a) he discontinued the claim after the defendant filed a defence; and
(b) the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.

You comment that the court advised "they could relist the case at any time". This sounds to me as if the court was treating your former case as stayed rather than discontinued (if there is a difference) and now being resurrected. You advised though that this was a new claim, albeit on similar/same grounds as the discontinued case.

Hopefully others on here can advise (as I said I'm not knowledgeable about litigation).
Perhaps a free 15 minutes with a solicitor might help.

**Ebony Princess** · 10th October 2014, 08:14:AM

Re: Anyone know anything about the Civil Procedure Rules 38.7

I made contact yesterday by phone. I did send an email on Monday but they have yet to reply.

The exact words in a letter from the court in March 2013 were that:

"... they wish to withdraw all proceedings. This means that the case is now closed."

So if it were indeed closed, it should not be able to be relisted without the permission of the court. I would have thought that if the case were being resurrected, then it would have the same case number but mine does not.

As for the agreement that was supposedly reached - there was none and they were well aware of this when they wrote to the court to withdraw the case. Blemain are not above telling a lie or two.

**Amethyst** · 10th October 2014, 08:30:AM

Re: Anyone know anything about the Civil Procedure Rules 38.7

It sounds like they withdrew on the grounds you had reached a settlement (which was a lie ) rather than formally discontinued the claim, therefore they are indeed allowed to bring the case on the same cause of action.

Yes you can bring that up in your defence to their current claim.

Had they formally discontinued the case (and you would have received a notice of discontinuance if that were the case) then they would have to apply to court for permission to bring the case again.

**Ebony Princess** · 10th October 2014, 09:29:AM

Re: Anyone know anything about the Civil Procedure Rules 38.7

So is there a legal difference between a case that 'withdrawn/closed' and a case that is 'discontinued'?

**Amethyst** · 10th October 2014, 09:35:AM

Re: Anyone know anything about the Civil Procedure Rules 38.7

Well, withdrawal doesn't really exist.

They have said parties have agreed settlement and withdrawal of the claim. (which we know was a fib)

However in reality they discontinued, so you'd have to show that that was the case and there was no agreement to end proceedings.

''Under the CPR an action cannot be withdrawn. It may either be discontinued under CPR Part 38 or it may be dismissed. If an action is discontinued rather than dismissed, it is clear that a second action may be brought even if it arises out of the same facts as the discontinued action, although the permission of the court would be needed under CPR Part 38.7 if the action is discontinued after the defendant has served a defence.'' Spicer & Anor v Tuli & Anor [2012] EWCA Civ 845

**Amethyst** · 10th October 2014, 09:40:AM

Re: Anyone know anything about the Civil Procedure Rules 38.7

What's the position with the amount of arrears now ?

( ie if it still stands at £1700 or has reduced since then then I'd reckon their chances of the new case suceeding is minimal - if the arrears have increased since that time then they'd have a good chance - ie it can't follow that because they stopped action over a £1700 arrears, they should be barred of any future action if the arrears have increased )

**Amethyst** · 10th October 2014, 09:48:AM

Re: Anyone know anything about the Civil Procedure Rules 38.7

ah ha - is this the same case as http://www.legalbeagles.info/forums/...232#post301232 ?

**Ebony Princess** · 10th October 2014, 10:33:AM

Re: Anyone know anything about the Civil Procedure Rules 38.7

The amount claimed was for costs, charges and building insurance. It has now increased because they continued to pile on charges. The loan itself was paid off in January 2011.

**Ebony Princess** · 10th October 2014, 10:36:AM

Re: Anyone know anything about the Civil Procedure Rules 38.7

Yes, it is the same case.

**Amethyst** · 11th October 2014, 17:07:PM

Re: Anyone know anything about the Civil Procedure Rules 38.7

Have you had a full statement of how the amount being claimed is made up?

When you say the loan was paid of in 2011 - did you have a redemption statement at that time or just came to the end of the term ?

Anyone know anything about the Civil Procedure Rules 38.7