Claim for malicious prosecution

[sapnker]

A well known central heating firm botched up my parents gas central heating installation. I had to get involved. The situation now is that the company has taken my
mother to count court but the firm has named me as a defendant as well! I emailed their solicitor demanding my name be removed as a defendant but got no reply. My
mother is now counter claiming from them. I fled my defence putting them to strict burden of proof as I have never entered into any contractual agreement with
whatsover. The solicitors have just confirmed that they will still be pursuing me as a defendant! They are just bullies like what they tried to do with my mother and i
can only assume that me being named as a defendant is some sort of weird revenge against me for helping my mother. So now I am not going to sit back and let them them
dish it out to me,doing I intend to go on the offensive against them and I am prepared to pay for the privlege of doing so. I have already decided that I am not going
to get involved in mediation with them as why the hell should I be even consulting with them as I should not be a defendant in the first place. I want to claim damages
from them for what to me is clearly an abuse of court process and a complete waste of my time .So any and all advice would be greatly appreciated. I need specific
advice so that I can fill a claim in online. let the battle commence.

[sapnker]

Let the battle commence

A well known central heating firm botched up my parents gas central heating installation. I had to get involved. The situation now is that the company has taken my mother to count court but the firm has named me as a defendant as well! I emailed their solicitor demanding my name be removed as a defendant but got no reply. My mother is now counter claiming from them. I fled my defence putting them to strict burden of proof as I have never entered into any contractual agreement with whatsover. The solicitors have just confirmed that they will still be pursuing me as a defendant! They are just bullies like what they tried to do with my mother and i can only assume that me being named as a defendant is some sort of weird revenge against me for helping my mother. So now I am not going to sit back and let them them dish it out to me,doing I intend to go on the offensive against them and I am prepared to pay for the privlege of doing so. I have already decided that I am not going to get involved in mediation with them as why the hell should I be even consulting with them as I should not be a defendant in the first place. I want to claim damages from them for what to me is clearly an abuse of court process and a complete waste of my time .So any and all advice would be greatly appreciated. I need specific advice so that I can fill a claim in online. let the battle commence.

[Amethyst]

Re: Let the battle commence

Morning

Could you post the particulars of claim from the original claim and yours and your parent's defences & counterclaims up please.

The claim against you should be struck out as there is no cause of action - this would normally be through an application to the court, although we need to know the grounds on which the claimants have included you as defendant. To do this you'd need to show the court your letters and their responses trying to sort it out without using the court - so might be an idea to post up the email you sent the solicitor as well. This would carry a fee of probably £100 as it can be dealt with without a hearing and if you succeed in that you could potentially claim wasted costs from the other side. You wouldn't have any grounds for simply filing a new claim against them for damages I'm afraid so you need to use the court process currently in play to deal with it.

The claim against your parents would proceed, presumably you are still happy to assist your parents deal with this claim ?

Sharon

[R0b]

Re: Let the battle commence

Morning

You wouldn't have any grounds for simply filing a new claim against them for damages I'm afraid so you need to use the court process currently in play to deal with it.

Well there is the new cause of action which is malicious prosecution, he could have filed it as a counterclaim but he can instead bring a separate action for it. The test that is to be applied in malicious prosecution is in two parts:

(1) there is no reasonable and probable cause - this is where the claimant has no case to put before the court; and
(2) the claim was brought maliciously - this can be proved where the claim was brought in the knowledge that it was without foundation

If both are satisfied then there is a claim for damages which is extended to pure economic loss. So you really have two options, strike out the claim against you and obtain your fees and potential costs or defend then bring a claim for malicious prosecution in the same way.

[sapnker]

Claim for malicious prosecution

Can someone please advise me of the correct wording for the following situation. Central heating company have named me on a county court summons as owing for the installation along with my mother. They did this because I challenged them about the quality of their work. I want to claim from them because I have demanded that they remove my name but they have said they are still going ahead. So I want to kick ass so to speak. Cheers.
Paul.

[des8]

Re: Claim for malicious prosecution

If you intend to proceed with this sort of action you will need to prove that the malicious pursuit of litigation has caused either damage to your reputation or health or caused loss of earnings
In other words you will have to show in some way this action of theirs has damaged you , or caused loss.
The fact they p****d you off is not sufficient.

It is only recently that the SC ruled that claims for malicious prosecution in civil cases was even possible http://www.bailii.org/uk/cases/UKSC/2016/43.html

[R0b]

Re: Claim for malicious prosecution

Can someone please advise me of the correct wording for the following situation. Central heating company have named me on a county court summons as owing for the installation along with my mother. They did this because I challenged them about the quality of their work. I want to claim from them because I have demanded that they remove my name but they have said they are still going ahead. So I want to kick ass so to speak. Cheers.
Paul.

So are your mother contracted with them for the installation and not you? There is two elements to a claim for malicious prosecution:

(1) Proceedings brought against you without reasonable and probably cause
(2) The claimant brought the proceedings maliciously

The first part is satisfied when the claimant does not have a proper claim against you and the second part would be satisfied if the claimant has misused the court process. An example would be if there is no foundation to their claim and they are aware that is the case.

Even if there is a malicious prosecution case, have you already filed a defence? If so then it is going to cost you £255 to file a counterclaim against them. Perhaps you might want to just simply file the defence against them instead.

[sapnker]

Re: Claim for malicious prosecution

Thanks for the replies. I had done some research and was aware that the Supreme court had made a ruling.
http://www.lexology.com/library/deta...b-2a53774b1ddc
I am exempt from paying court fees so I have nothing to lose.
I was thinking of claiming punitive damages and for mental distress!
I really, really want to go on the offensive here.
It does not matter if I lose I just want to kick back in the same way that they are doing to me. David and Goliath springs to mind.
If someone on here can point me in the right directions with the correct words and stuff I will issue a claim against them and post it on here and keep everyone up to date with what transpires. I know that my application has to go before a judge in the first place. I have issued court proceedings before so this would not phase me.
I would be really grateful for all advice on this as I am serious about making a claim against them. If I can get the right wording and advice I can have a summons issued in the next 48 hours online.
Cheers in advance guys.
Paul

[charitynjw]

Re: Claim for malicious prosecution

Personally, I can't see how 'malicious prosecution' applies to this.
It seems to be a standard contractual dispute over the quality of work, & both the contractor & customer can go to court to settle the issue.
The court will expect that there has been genuine attempts by both parties to resolve this before litigation.

[wales01man]

Re: Claim for malicious prosecution

With respect can I ask what you expect to claim in damages and how much for Mental stress and how do you get to this figure .

[R0b]

Re: Claim for malicious prosecution

Personally, I can't see how 'malicious prosecution' applies to this.

If the contracting parties were the heating company and the mother, then the OP is not a party to the contract, so malicious prosecution would apply. It sounds as if the OP was complaining on behalf of his mother and as a result the heating company for whatever reason has decided to join him as a party to the claim. If that is the case then there is certainly no reasonable and probable cause here and the heating company will be in the knowledge that the claim against him is unfounded.

Of course they would need to prove that he was a party to the contract but if all communications and agreements were made by his mother, this is a malicious prosecution. Technically, a malicious prosecution could attract exemplary damages in excess of your losses but that will be up to the court to decide and whether there has been enough communication between yourself and the heating company in an attempt to remove you from the claim.

What, if any, correspondence have you sent to the heating company as to why they have included you as a party? Have you indicated to them at all that if they continue with this claim you will be bringing a counterclaim for malicious prosecution?

As for the counterclaim itself, I would suggest that issuing a separate claim against them is not the best idea and that an application for a counterclaim is made a part of the current proceedings. This is in connection with the overriding objective and allows the court to dispose of all related matters swiftly instead of separate proceedings. That does of course depend on how far proceedings have progressed in the current claim.

If you want to claim for malicious prosecution then I would suggest you set it out in the same format of a particulars of claim e.g. set out the brief background to the claim and then explain malicious prosecution with reference to the two part criteria above. you may also want to reference your reliance on the Supreme Court case too.

[charitynjw]

Re: Claim for malicious prosecution

[MENTION=71570]R0b[/MENTION]

Aah, ok.
I misunderstood the first post & thought that the OP was party to the contract.
Silly me.......& even more silly heating company!

[R0b]

Re: Claim for malicious prosecution

You could be right I guess, the OP hasn't really confirmed whether or not he is party to the contract but I am only basing this off another thread he made on this a while ago

http://www.legalbeagles.info/forums/...336#post676336

[des8]

Re: Claim for malicious prosecution

Personally, I can't see how 'malicious prosecution' applies to this.
It seems to be a standard contractual dispute over the quality of work, & both the contractor & customer can go to court to settle the issue.
The court will expect that there has been genuine attempts by both parties to resolve this before litigation.

But OP was not a party to the contract.
However I would be wary of initiating this action for aggravated and exemplary damages for mental distress caused by malicious prosecution.

First the court action has to be shown to be malicious, and then mental distress has to be proven!
Do you have proof of mental distress? you certainly don't seem distressed, just p****d off, which IMO won't get you far in a court as it will possibly be seen as part of ordinary life!

As already pointed out elsewhere you should be entering a defence, and making them prove you were party to the contract.


From what I remember of your earlier threads, your mother probably has a better chance of obtaining an award for distress caused by their poor workmanship, if she makes a counterclaim when entering her defence!

[sapnker]

Re: Claim for malicious prosecution

But OP was not a party to the contract.
However I would be wary of initiating this action for aggravated and exemplary damages for mental distress caused by malicious prosecution.

First the court action has to be shown to be malicious, and then mental distress has to be proven!
Do you have proof of mental distress? you certainly don't seem distressed, just p****d off, which IMO won't get you far in a court as it will possibly be seen as part of ordinary life!

As already pointed out elsewhere you should be entering a defence, and making them prove you were party to the contract.


From what I remember of your earlier threads, your mother probably has a better chance of obtaining an award for distress caused by their poor workmanship, if she makes a counterclaim when entering her defence!

Thanks everyone for your replies.
Yes the contract was signed for my mother so there is no excuse for me to be named on the summons.
I have no doubt it is a form of bullying tactics, as they tried to bully my mother in the first place.
Having looked at all the replies and other information from other places, its clear that I have to wait until the judge dismisses the claim against me then I can issue a claim against them.
But in the meantime I am in the process of issuing a N244 against them for a striking order.
I am exempt from fees and although I suspect that it will have to go to a hearing it will not cost me anything and I am fighting back. If they can issue a summons against me I am pretty sure I can do the same for them.
I have already entered my defence:

"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 consider the claim to be vexatious, ill-founded and
mischief-making".

My mother has already counter claimed for breach of contract.

Much later on, I am going to post the pictures of their work to YouTube.
As they say the truth hurts!
If they thought that we would roll over an play dead just because they are a big national company with money to throw at legal soldiers then they got it well wrong.
Let the battle commence.

Cheers for all the advice.