DCB Legal & First Parking - 2 x university parking court claims 3 weeks apart

Coupon-mad

Yep and add a para 4 about cause of action estoppel (Henderson v Henderson) then renumber the paras of the new short template and submit it online.

Then do the public consultation with us this month when you have time.

Pandemonium78

OK. 
Am hoping the cause of action estoppel para doesn't tip the line count over for MCOL.
I can try to shorten it.
I will in any case email my defence as well as submit via MCOL as per the new instructions.
I did get a letter in the post acknowledging receipt of the defence for the first court claim.

Coupon-mad

It won't - but if I'm wrong, just remove the last para of the defence. That's been done several times this past month by Defendants and you can just safely drop that bit. No defence meaning is lost by removing it.

Le_Kirk

If you find yourself up against a limit, @Coupon-mad usually recommends leaving out paragraph #10 (from the template).

Pandemonium78

Another question, am really picking into the details here - does cause of action estoppel apply given that the POC of the first claim state the specific breach, and the POC of the second does not, ie they are not identical particulars like the cause of action estoppel para states?

Gr1pr

Pandemonium78 said:

OK. 
Am hoping the cause of action estoppel para doesn't tip the line count over for MCOL.
I can try to shorten it.

1) I will in any case email my defence

2) as well as submit via MCOL as per the new instructions.

I did get a letter in the post acknowledging receipt of the defence for the first court claim.

1) definitely not,  it's no longer recommended and your new defence will be incomplete by email 

2) correct,  submit on MCOL only  !

Coupon-mad

Pandemonium78 said:

Another question, am really picking into the details here - does cause of action estoppel apply given that the POC of the first claim state the specific breach, and the POC of the second does not, ie they are not identical particulars like the cause of action estoppel para states?

I thought the same because I am pedantic too! But I decided yes it does. Worth adding

Pandemonium78

FYI

Having added the following for cause of action estoppel, only this part of section 10 in the new defence does not fit:

"Whilst this does not 'normally' apply to the small claims track (r.38.6(3)) the White Book has this annotation: 'Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))'."

Cause of action estoppel - reference to claim number M4KFK55

4. The Defendant respectfully submits that this claim should be

struck out under CPR 3.4(2)(b) on the grounds of cause of action

estoppel, as the facts, details and alleged contractual terms are

identical to those in the prior claim No. M4KF7K55. 4a.

Authorities to support the Defendant's position that subsequent

claims are all estopped are: 1) Arnold V National Westminster Bank

PLC [1991] 3 ALL ER 41. The court noted that ‘..cause of action

estoppel applies where a cause of action in a second action is

identical to a cause of action in the first, the latter having

been between the same parties, or their privies and involving the

same subject matter’. This case involves the same Claimant and

Defendant, the same Car Park and the same manner in which the PCN

was issued. 2) In Henderson v Henderson [1843]67 ER 313 the court

noted the following…’when a matter becomes subject to litigation,

i) the parties are required to advance their whole case, ii) the

Court will not permit the same parties to reopen the same subject

of litigation regarding matters which should have been advanced in

the earlier litigation, but were not owing to negligence,

inadvertence or error.’

4c. The decision is still good law, and has been cited with

approval numerous times, including Aldi Stores v WSP Group

plc [2008] 1 WLR 748 and Henley v Bloom [2010] 1 WLR 1770. The

Court is invited to strike out the second claim due to cause of

action estoppel and to apply appropriate sanctions against the

Claimants for filing two abusive and exaggerated claims. 

Coupon-mad

That's fine to remove but save it for your WS later on because it can be added then.

Pandemonium78

Is it usual for a claim to be stayed because the Claimant hasn't responded to the defence?

If so, it seems unfair that deadlines that are not flexible are imposed upon Defendants and not Claimants?