Restarting a claim originally done via EU cross border procedure

[AshDunn]

Thanks. Do you think I could serve as new UK claim based on the same facts and then cancel the cross border claim, without a problem? Are those two different legal courses classed as different i.e. wouldn't be second bite of the cherry?

[atticus]

I would not do that. You have started a case, and only in some parallel universe would bringing a second one on the same facts not be a second bite at the cherry.

[AshDunn]

Interesting development - defendant now states that I "did not serve the claim form and particulars of claim".

Basically because the Spanish airline Vueling sent the claim back, saying it was not in Spanish (it was, they lied).

We were in the process of having official certified translations sent when they issued a defence in response to the claim. Which wouldn't have been possible unless they made a copy of it before returning it.

Now stating they want it struck out as not served properly.

My question - if they reject that it was ever served, then can I reserve as a new UK claim now? Without coming unstuck?

[AshDunn]

Anyone know?

[atticus]

You clearly think you served the claim form and POC. Please give details of when and how you did this.

Did the defence clearly respond to the POC?

[AshDunn]

That's the thing/ the whole point of the protracted mess is that they rejected service and could not respond. Yet when the application for default was made they suddenly came up with a defence which means they must have read the originally served POC as this is the only time they were ever sent them by anyone at court.

Now they are saying the claim needs to be struck out as being incorrectly served, and ALSO that they rely on their filed defence for why it should be struck out...

[atticus]

Are they also applying to strike out on grounds that you have no cause of action or similar? Or do they solely rely on the service point?

You have not answered my first question in post 20.

[AshDunn]

THIS: they solely rely on the service point.

Also, the claim was a EU cross border claim. We went to a lot of trouble, the Court and I, liaising with the foreign process section, over a year, to ensure correct service of the claim i.e. in Spanish. For example, the first time I sent it to the foreign process section, they returned it precisely because there was no Spanish version. So doing their due diligence.

When I got the Spanish version to the foreign process section, they were satisfied, served the equivalent Spanish legal representative, who then served Vueling.

However, what happened next is that they accepted the service, then opened it and then returned it to the UK foreign process section, without going through the proper process for returning it, merely stating it was in the incorrect language and so could not be responded to, when it was only the exhibits which were not, but this is because exhibits must not be translated anyway!

So for the last year the court and I have been getting official translations sorted to serve Vueling again. In particular we sent them a Spanish translation of my application for default judgment as Vueling have blown their chance to file a defence to the claim.

And so now, in response:

"they are saying the claim needs to be struck out as being incorrectly served, and ALSO that they rely on their filed defence for why it should be struck out..."

[AshDunn]

Small bump

[atticus]

Respond with your full evidence of correct service, plus D's acknowledgement of service and Defence. Remember that it is the judge hearing the application who will decide. The other party is attempting to persuade him or her, as are you.

[atticus]

I have just seen this case summary in the 'Civil Litigation Brief' blog: https://www.civillitigationbrief.com...anctions-too/#

I hope it helps.