Woodchester V Swain (default) Debate

[postggj]

In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the default notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the claimant to set out the default notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the default

LETS KEEP ON TOPIC FOLKS


if a claim was issued then withdrawn on a lousy default notice (not enough time to rectify)
all the claimant could seek is the arrears up to the default notice
as to woodchester v swain

say the claimant then withdrew the claim but issued another 12 months later with an effective default notice

before we go down cpr 38.7

can a fresh claim be issued as the first has been withdrawn after exchange of defence being the original agreement would have been terminated on a duff default notice

we then have harrson v link come into the equation

getting confused

i am

[Guest]

Re: Woodchester V Swain (default) Debate

Just because it is you posty;
Technically the agreement could not be terminated after a defective default notice. However if proceedings have commenced up until the point where the case is actually presented in court and the judge found that the case could not continue due to the ineffective default notice, it would depend on how the judge decided to proceed. He could stay proceeding and give the creditor time to present a complaint notice before continuing, this has happened. He could discontinue, this has also happened and the creditor was forced to apply for permission to continue as per the appropriate CPR.
There is nothing preventing the creditor presenting a second or third notice.
The fact is that not many courts will accept that the amount of prejudice caused by a misstated time on the notice to be sufficient in order for it to affect proceedings, this was illustrated in Brandon, if however the amount for remedy is largely overstated then you may have a case but unfortunately bad notices can be remedied by good ones as we know.
PETER

[Algee]

Re: Woodchester V Swain (default) Debate

Do we have any instances of OC's putting right bad DN's by issuing a good one, either at anytime or after proceedings have commenced. I know that it is widely expected that they can do it, but do we actually have any instances of it?

I ask because two of my creditors have accepted that they have issued invalid DN's and say that they will re-issue. However this has been going on for over a year, and as yet neither has sent out a new DN. One had sold it on to a DCA, and has now taken it back, the other is the OC who has also admitted that they do not have an agreement, so they are slightly different instances.

Sorry posty if this is taking it slightly off subject.

Alan

[Guest]

Re: Woodchester V Swain (default) Debate

Do we have any instances of OC's putting right bad DN's by issuing a good one, either at anytime or after proceedings have commenced. I know that it is widely expected that they can do it, but do we actually have any instances of it?

I ask because two of my creditors have accepted that they have issued invalid DN's and say that they will re-issue. However this has been going on for over a year, and as yet neither has sent out a new DN. One had sold it on to a DCA, and has now taken it back, the other is the OC who has also admitted that they do not have an agreement, so they are slightly different instances.

Sorry posty if this is taking it slightly off subject.

Alan

HI Alan

Yes there a few on here and many over the road, just type default notice re present or something in the search facility.

It is always worth challenging a default notice if the amount is mistated i think, whilst a new notice can be produced it does give the debtor time to either negotiate or gather evidence to challenge the debt another way. Some times the creditor has been known to give up on pursuing through the courts after a dodgy notice has been exposed, deciding the most cost effective option is to sell the account to a DCA, this has been mistakenly taken to indicate that the creditor could not re issue in the past.

It takes time and money to re issue a default and they then know that you are going to be checking their figures on the new one, sometimes they seem to think it isnt worth the bother.

Peter

[Gorang]

Re: Woodchester V Swain (default) Debate

if a claim was issued then withdrawn on a lousy default notice (not enough time to rectify)
all the claimant could seek is the arrears up to the default notice IMO,no, because the claim has been withdrawn so it puts the account back to the same state it was in before the claim was submitted, therefor the claimant can still seek ALL of the account owed by the debtor
as to woodchester v swain

say the claimant then withdrew the claim but issued another 12 months later with an effective default notice

before we go down cpr 38.7

can a fresh claim be issued as the first has been withdrawn YES as there has been no judgement/decision/order made on the case, so the status of the account returns to the exact same as it was before the claim was submitted after exchange of defence being the original agreement would have been terminated on a duff default notice makes no difference what paperwork has been exchanged as the claim has been withdrawn/dismissed

If a claimant makes a claim then withdraws or asks for the claim to be dismissed then all that has happen is the claimant has wasted money on court fees, THATS ALL

After withdrawing the claim the claimant could then with no problems issue another DN, wait until enough time has passed and as long as the debtor has not rectified the default, the claimant can then submit another claim (ONLY to stand a chance of winning)

Basically the claimant can then say to the judge, they noticed they had messed up so they withdrew the previous claim, corrected the mistake then submitted a new claim

There is NO judge in the land that can stop/refuse them submitting a new claim on that basis as it is actually showing (as much as I hate to say this) they have been good and rectified the mistake and it would go in their favour in the judges eyes

NOTHING can stop them from making another claim at all, even if any of the proceedures from the debtor going into arrears to the claim being submitted, has been done wrongly, ie DN and NOA from the OC will/can not stop them from submitting a new claim, the defence is the only thing that will stop them WINNING with dogey notices

Wether the claim has substance to win is an entirley diferent story

Techincally there is actually NOTHING to stop a creditor from making the new claim with the same dogey DN or NOA time after time once the previous claim has been dismissed or withdrawn

Thats my opinion anyway lol

[postggj]

Re: Woodchester V Swain (default) Debate

THIS SINARIO DEALS WITH A SECOND CLAIM, THE FIRST WITHDRAWN AFTER DEFENCE FILED, THE CREDITOR THEN ISSUES A SECOND CLAIM ON A COMPLIANT DEFAULT NOTICE


But no, a new DN was served (Previous one was dodgy), a new TN was served and without notice a new claim issued based on substantially the same facts.

UP pops yours truly and shouts "Foul" CPR 38.7 applies, where is your permission !

application for permission made by the claimant, hearing takes place and the DJ denies permission for leave to issue a new claim. end of........ one would assume, especially as 2nd claim costs were £300 approx, but oh no, they wanted to appeal the judgement of the DJ and so an appeal was actioned by the claimant, all of a sudden, the appeal costs had leapt to £3,500 approx.

anyway funsters, the bit you need to be aware of is this.....

1)It is submitted that the issue of fresh proceedings is an abuse of process as the Claimant, following discontinuance AFTER a defence had been filed, had issued its 2nd claim prior to obtaining permission pursuant to CPR 38.7 which states that

“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.”


I refer Counsel for the Claimant and the Court to the “White Book – Civil Procedure Volume 1 (Sweet & Maxwell) and in particular the effect of rule 38.7

“As a matter of common sense, where a claimant who has brought and then abandoned a claim ought not as a general rule to be allowed to start another claim arising out of the same facts.

A Claimant, who wishes to do so, is first required to seek permission. [The claimant sought permission after he started his claim in breach of the rule] The court is likely to give permission for example where the Claimant was misled or tricked by the defendant [The Claimant sought to withdraw its previous claim to manufacture a further document i.e a second default notice. It is submitted, that the 2nd Default notice requires a live account in order to be of effect such account having been terminated previously by the claimant, IT is surely not the intention of parliament that a creditor can issue default notices and termination notices ad infinitum], where important new evidence has come to light [No new evidence has come to light other than a 2nd Default Notice which on the face of it again appears to be defective manufactured by the Claimant which perpetuates the fiction that the agreement had not been previously terminated. The Defendant avers that new evidence that might be relevant could be new evidence from a third party that was not available at the time] or where there has been a retrospective change in the law. (e.g. House of Lords case overriding a Court of Appeal decision which had led the claimant to discontinue). [The Defendant is not aware of any retrospective changes that are applicable to this case] All these examples are of course, exceptional cases and assume that the limitation period has still not expired.

Under the former practice of former RSC 0.21 r.3 where leave to discontinue was required, the court would often impose terms as a condition of granting leave including a term that no new action be brought. Such an order is no longer required as r38.7 puts the onus on the claimant to seek permission before making another claim against the same defendant arising out of the same facts.

The rule is silent as to how the claimant seeks permission. Therefore the general rules in Pt 23 apply. The application should be on notice with evidence.

Permission for another claim is not required if the claimant discontinues the first claim before the defendant filed a defence

It is clear that the intention of rule CPR 38.7 was that permission be granted where there were exceptional circumstances beyond the control of the claimant which prevented the Claimant from bringing forth its whole claim in the original claim such as a retrospective change in the law etc. Counsel for the Claimant mis-directed himself to limit his submissions to CPR 3.4, which of course relates to the striking out of a statement of case. It is also noted that CPR rule 24.2 provides:

"The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if -
(a) it considers that -
(i) that claimant has no real prospect of succeeding on the claim or issue; or
(ii) that defendant has no real prospect of successfully defending the claim or issue; and
(b) there is no other reason why the case or issue should be disposed of at a trial."

The hearing was not in respect of an application to strike out a claim, it was in respect of an application for permission to make another claim which was a case management decision which requires a higher threshold to appeal against because the judge at first instance was entitled to exercise discretion.. Accordingly, In so far as a strike out action is concerned it is clear that:-

(i)where A has brought an action against B, a later action against B or C may be struck out where the second action is an abuse of process.
(ii)A later action against B is much more likely to be held to be an abuse of process than a later action against C.
(iii)The burden of establishing abuse of process is on B or C or as the case may be.
(iv)It is wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive.
(v)The question in every case is whether, applying a broad merits based approach, A's conduct is in all the circumstances an abuse of process.

Proposition ii) above seems to me to be of importance because it is one thing to say that A should bring all his claims against B in one action, whereas it is quite another thing to say that he should bring all his claims against B and C (let alone against B, C, D, E, F and G) in one action. There may be many entirely legitimate reasons for a claimant deciding to bring an action against B first and, only later (and if necessary) against others.

Those reasons include, for example, the cost of proceeding against more than one defendant, especially where B is apparently solvent and the case against B seems stronger than against others. More defendants mean more lawyers, more time and more expense. This is especially so in large commercial disputes. It by no means follows that either the public interest in efficiency and economy in litigation or the interests of the parties, including in particular the interests of C, D and E, is or are best served by one action against them all.

It is not the case that just because there has been no previous adjudication that a subsequent claim is therefore no abusive, all the circumstances of the case are relevant. And it is clear that a later action against B is much more likely to be held to be an abuse of process than a later action against C who perhaps is new to the proceedings. Counsel for the Claimant cited the case of Dexter, which of course relates to an original claim between A & B and then a subsequent claim against A & B & C & D in respect of alleged fraud and facts which came to light thereafter. The defendant is not aware of any allegation of fraud by the Claimant or facts that subsequently came to light after its previous claim had been discontinued. Of course it would clearly be an abuse of process and possibly contemptuous for a claimant to discontinue a claim with a view to re-engineering its case by creating additional self serving evidence which contradicts previous evidence.

As I say, this is an application for permission under CPR 38.7, and the effect of rule CPR 38.7 has been discussed previously in this skeleton argument. There is little case authority / precedent for such specific applications perhaps because it is rare that a Litigant re-issues a fresh claim based on the same or similar facts or perhaps more likely, litigants have taken a pragmatic commercial decision about the merits of pursuing a claim which is bound to fail or be subsequently discontinued. It is suggested that Discontinuance was in effect more or less a capitulation on the claimant’s part that the previous claim would be unsuccessful.

As it has been alleged that this second claim has some similar defects, DJ was entitled to consider how she could give effect to dealing with the case justly by ensuring that the parties save expense and also dealing with the case which is proportionate not only to the amount of money involved but also to the financial position of the defendant who did not have similar financial resources of a creditor bank. The matter, which first resulted in, a defective default notice from XYZ had dragged on due to substantive errors in documentation on the part of the claimant and again in advancing the claimant’s claim by the claimant’s legal representatives.

DJ was correct to exercise her duty to identify the issues at an early stage and to decide promptly which issues if any needed full investigation and trial and accordingly which issues could be disposed of summarily and whether the likely benefits of taking a particular step justified the cost of taking it and to bring the matter to a conclusion expeditiously and fairly having due regards to the substantive errors and conduct on the part of the Claimant and his legal advisers as well as taking into account the need to allot resources to other cases.



COMMENTS PLEASE LADIES AND GENTS

HARRISON V LINK WAS AT A LOWER COURT THAN WOODCHESTER V SWAIN FOR REFERENCE

[Gorang]

Re: Woodchester V Swain (default) Debate

I stand corrected

GREAT info

Can't wait to use that and see what happens


Thanks

[postggj]

Re: Woodchester V Swain (default) Debate

This Will Be Used In A Witness Statement Within The Next 30 Days

Stay Tuned

[Gorang]

Re: Woodchester V Swain (default) Debate

This Will Be Used In A Witness Statement Within The Next 30 Days

Stay Tuned

I will do

thanks

[Guest]

Re: Woodchester V Swain (default) Debate

Hi
Yes this is true, providing of course that the DJ sees fit to discontinue, there are cases on here where the court has simply stayed proceedings ,i think under 3.4 of the CPR and allowed the creditor time to p[roduce a rectified notice.

It is also worth mentioning that a creditor is free to pursue an action for arears at any time through the court. This is not dependant of any case law it is just that the legislation does not prohibit it.

To avoid confusion the reason that arrears were only due in total in Woodchester was because it was a hire agreement and no principle sum was involved.

The total amount loaned is always due on a credit agreement it is just that recovery of sums not yet due under the contract cannot be actioned without a valid notce.
Peter



Peter

[Guest]

Re: Woodchester V Swain (default) Debate

This thread may be of interest as it covers similar ground


http://www.consumeractiongroup.co.uk...Please!/page11

[mystery1]

Re: Woodchester V Swain (default) Debate

This thread may be of interest as it covers similar ground


http://www.consumeractiongroup.co.uk...Please!/page11

Link claimed with no default notice, amongst other issues. They discontinued.

Santander took over (allegedly) and the claim was struck out as an abuse of process. Santander have appealed (at present time).

Not sure of your point or even if it's the correct thread.

M1

[Guest]

Re: Woodchester V Swain (default) Debate

Link claimed with no default notice, amongst other issues. They discontinued.

Santander took over (allegedly) and the claim was struck out as an abuse of process. Santander have appealed (at present time).

Not sure of your point or even if it's the correct thread.

M1

Case discontinued and court would not allow new case without the application for re continuance.

38.7

Peter

[Guest]

Re: Woodchester V Swain (default) Debate

Link claimed with no default notice, amongst other issues. They discontinued.

Santander took over (allegedly) and the claim was struck out as an abuse of process. Santander have appealed (at present time).

Not sure of your point or even if it's the correct thread.

M1

HM and Gorang?

Sorry bit abrupt, just re checked the link, its correct, clearly refers to 38,7 and the case was struck out due to a situation similar to that mentioned in post 6 as far as i can see.

Peter

[Gorang]

Re: Woodchester V Swain (default) Debate

Sorry bit abrupt, just re checked the link, its correct, clearly refers to 38,7 and the case was struck out due to a situation similar to that mentioned in post 6 as far as i can see.

Aburpt ? Where? ?
This is great info Peter as I personaly think that we are going to see more and more case where we will need this argument as I think the banks and DCA's will start to claim again on the same accounts, either that or they will try to sell the account and a different DCA will try to claim

Mmmm saying that has just made me wonder if the argument would stand up in court if it is a different DCA that is claiming.

But I suppose you could always use the dogey CCA's, DN's and NOA's again as evidence, depending on if that is what the case was struck out, or dismissed for I suppose