Re: Without notice Judgement Order

Hello again…

I just came across this on another site… it would appear the co-mortgagee would need to be informed of the application, too as he is affected by the new Judgement Order… Can anyone comment on this, please?

I have had nothing from Land registry about the new non standard text for Form K Restriction which has been ordered...

Cripes...it's a minefield!!

Re: Completion of house sale with restrictions, solicitors saying debts need to be settled

In the case of jointly owned property, if only 1 of the owners owes a debt, only a restriction can be entered .

This is a K restriction which has specific wording.

Of course the creditor can ask the LR to use different wording so to stop sale without payment,

but the LR is not likely to agree due to the rights of the other co owner.

What usually happens is the purchasers Sol will tell the LR that a disposition has taken place and the creditor has been notified.

The LR will not insist that the creditors permission is needed.

Unfortunately many solicitors don't know this.

How did that happen?

They have changed the standard text to give their client more security… a normal restriction is worded so that you only need inform the creditor after the house is sold, with this new wording, I have to inform the creditor two weeks prior to completion.

But I believe a Judgement can only be varied in certain circumstances.. a, where there has been a material change of circumstances since the order was made, or b, where the facts on the original order were misstated… the slip rule? Neither of these is relevant.

See Tibbles vs. TIG plc (2012) EWCA Civ 518 in the Court of Appeal.

Hello Caggers…

Just an update of this long and stressful legal saga… Some of you will have heard the first bit, but I am stuck with a new problem (please see title) and I am hoping that someone will be able to gel me, please...

Here goes… deep breath….

My problems started a few years ago when I was involved with a neighbour over a land dispute.

To cut a very long story short (ish), the small strip of land formed part of my garden and was given to me 12 years ago by a previous landowner, who sadly met with a fatal accident just before legal transfer took place.

However having occupied the land for more than 10 years, I made an application to Land Registry in order to register it in my name.

But the new landowner, a neighbour, objected to my application, (despite never having set foot on it), so the matter went to court.

On the day of the trial, the audio loop I had requested was not working at all, (I think it was the wrong sort) but the Judge refused to adjourn, so as a Litigant in Person, who was also very deaf, I tried to participate as best I could.

It was difficult, and I missed a lot of the witness statements, etc., and only on receiving a court transcript after the hearing, did I understand what was said.

So when it came to being cross examined, several hours into the first day of the trial, I became confused with the line of questioning. I became stressed and was having heart palpitations (which I take medicine for) and I panicked and decided to withdraw from the trial, and my neighbour was awarded his very substantial legal costs.

You will probably say that I did not have a fair hearing and I would agree, but there is nothing I can do about it.

I tried immediately after the trial to set aside, after finding that there had been several very serious, if not fatal procedural errors, however, the Judge was having none of it, (unsurprisingly, as I had accused him of bias) and barring going to the Court of Appeal, (which I couldn't afford to do at that time), I am stuck with this situation.

I knew I would have to sell my home in order to pay the costs, so we put our house on the market in January 2014 and secured a buyer in March.

Meanwhile, my neighbour's solicitors had made an application for an Interim Charging Order and a hearing was set for some months ahead, in July. (This was to allow my husband whom was contracted to work abroad to attend).

However, as soon as we were about to exchange contracts with the purchaser, in June, I had a call from my estate agent, saying that our buyer had pulled out due to being threatened by my neighbour… he had apparently told them that my septic tank leaked onto his land (untrue) and he would pursue them for damages if they went ahead with the purchase.

I have all the evidence of what was said, so intended to bring a counterclaim at the hearing for the final Changing Order because I was now left with no way of paying the debt before the hearing.

I sent a Letter before Claim to the neighbour, telling him I intended to make a counterclaim relating to tort of unlawful interference with a contract and I made the application to the court also and this was enough to lead to an adjournment of the hearing for the Final Charging Order.

Unfortunately, I made the fatal mistake of not having the matter referred to a higher court. I only found out at the hearing that my claim could not be adjudicated on at County Court level due to the amount. (375k), so the Charge against my property by way of a Form K restriction on our house, was made final on November 3rd 2014.

Apologies for the length of this… but sometimes a little background to the case helps…

The following is the part I need help with, please;

Having secured a Final Charging Order on 3rd November, the neighbour's solicitor then made a without notice application to vary the original Judgement Order on 4th December, resulting in a Judgement Order dated 8th December.

Why? Any solicitor worth his salt would be fully aware of the standard text of a form K restriction and would have had plenty of time to alter the text to suit before the Judgement was made final.

The new (without notification) application sought deliberately to exclude me, stating;

"This application to be considered by the court without notice of it to any other party on the basis that the overriding objective is best furthered by doing so. If the other party became aware of this application there is a substantial risk that even the "apparent" security offered by the charging order referred to would be lost".

Why did the court agree to this?

This was served on me by normal post on 6th January… too late to appeal.

On the application, they stated that the standard text of a form K Land Registry restriction did not provide enough security, so applied for the text to be modified to give their client a better chance if recovering the debt, in effect changing a standard restriction, in which notification to the creditor is only necessary AFTER the sale of the property, to a situation where I must now notify him two weeks BEFORE transfer.

I believe this to be unlawful as it does not comply with CPR r. 3.1 (7) due to the fact that a sealed (perfected) Judgement Order can only be varied or revoked if (a) There has been a material change of circumstances since the order was made, and (b) The facts on which the original decision was made were (innocently or otherwise) misstated.

And even then, surely a variation of an order must be made via the correct appeals procedure?

I have not had anything from Land registry to say that the standard text has been modified, nor has my husband who is co-mortgagee, so entitled to be notified of this change. Neither did the creditor's solicitor inform my husband of their application. This can't be right, can it?

Please, if anyone can help me with my application to set this aside, I would be so grateful.

Dookist.

The thing is… I know I have had these loans… and they have even settled one of them. I am moving on to other loans I have had, and I have provided them with account numbers which appear on my bank statements along with my name and address… but they just keep writing back asking for a valid agreement number… we are going around in circles here…they seem to be stalling for some reason.

Surely the fact that I am providing an agreement number along with a bank statement on which it appears every month is proof of the loan?!

Did you have any luck with Blackhorse?

I am going through the same kind of thing… I have even given them agreement numbers which have shown up on various bank statements, which I have sent also and they are still saying that because it's more than 3 years ago they are unable to locate the records… Pfft!!

Argghh!! Keep coming across this link… but it doesn't work!!

How do I access this apparently incomplete link, please?

The debts will be in her name, not yours... I am sure it will be fine.

I dont see that it is a crime for someone to have their mail redirected to you... but is she telling her bank that yours is her home address?

A company I worked for and have just left, has refused to pay me ANY holiday pay... I started in August 2011, was paid for holidays in 2012 and 2013... I left at the end of September this year but they say I would have to work until the end of the financial year next March, to be paid for 2013-2014... does that sound right?

my wife may have a compersation win of sevral thousands comeing from a NHS mistratment claim. I claim for her on my ESA but she also recived dla on her own right, as we are both disabled.

I am now worring that we may have to give up our had won benifits as it is very lightly it will be over the £6000 limit sevral times, and even have to pay some of them back, even though she is not claiming any benifits in her name exept dla mid range for care.

Can anybody stear us right if this is the case.

Benefits are for people who don't have enough money to live on. If you are expecting a huge windfall, then you are no longer entitled to the benefits you are claiming. I doubt you will have to pay anything back. You will just need to tell DWP about a change in circumstances. But if you don't do this promptly, then they may ask you to pay them back and you could get a criminal record and even go to prison.

HSBC is expecting to pay back $367m (£218m) of interest payments to some UK customers owing to mistakes in paperwork for personal loans.

 

 

The bank has admitted to failing to include information in annual statements relating to the option for customers to make overpayments.

 

 

This is required in the UK under the Consumer Credit Act.

 

 

The bank outlined the provision in its results for the first half of 2014, but suggested no customers had lost out.

 

 

A spokesman for the bank said there had been "no financial detriment" suffered by customers as a result of the error.

 

 

Omission Under the rules, banks must explain to loan customers that they can make overpayments or partial overpayments on top of their regular repayments.

 

 

HSBC included this in the initial paperwork when customers took out a loan.

 

 

But the bank has admitted that when it sent annual statements, reviewing the latest status of loans, these details were omitted.

 

 

A spokesman said that the error went back a couple of years, but had now been corrected.

 

 

HSBC says it will be contacting all affected customers

 

 

http://www.bbc.co.uk/news/business-28639103

What if you have moved house...? Several HSBC loans over many years...

Dear Doookist

I hope you have success in fighting your injustice.I hope you are able to continue with you fight.I found lots of similarities with our own experience.There is very little in the way of legal help for cases like this and some very poor solocitors to find help and are keen to charge top whack and take your money. t hen when you run out they don't want to know after they have bled you dry. Like you my partner and I have had 7 years of similar exoerience.We had to accept a settlement offer because of the mental stresses.Contenplating suicide rather than face another day of injustice and lies in the court room.Our insurers would not pay out and our legal rep failed to apply for payment from them in a reasonable time leaving the claiment to apply to court for our non payment. We lost out by hundred thousands,lost the land we legally owned. Our oponent failure to disclose information that he knew would have likely made his claim invalid.This I discovered after we had come to the end of our sanity and money needed to continue on and had agrred settlement. like you we had charges put on our property with out our notice by the court.Threatened with bankruptcy if we didn't pay his court costs.I could go on.You are so right when you say you have done nothing wrong just as our crime was to own property he wanted (and through his lies he got) to build half million pound houses on.NO JUSTICE ONLY LAW FOR THE HAVES. NOTHING FOR THE HAVE NOTS.

Dear Pearlybabe... I am so sorry to hear about your problems... But yes... It is exactly that... Justice is only for the rich... I have found such bias from people who should know better... Judges who are supposed to make allowances when you are a LIP, but instead take advantage of your lack of legal expertise... My opponent also had an invalid claim... the judge would have been aware all along, but just bent the rules anyway...The systems stinks to high heaven, it really does... I am still struggling to obtain justice, but it is very soul destroying...As you say, it just sends you half crazy in the end I am taking medication to sleep... Suffering severe anxiety... Sometimes it feels as though you have a choice between getting justice or preserving what is left of your sanity... There have been so many procedural errors here that I can't even begin to list them because my heads spins with it all... The stress is terrible.

Having said that, I have met a wonderful person on here who has been an absolute Godsend, and without whom I would most likely have lost my case by now... He is extremely knowledgeable and has already helped get the case adjourned... Something I thought would never happen... So... There is a little light at the end of the tunnel for me at least... I wish you well and can only empathise at your plight... It's a very sorry situation when you have been wronged but have no money to fight for justice... I hope that you are able to put this awful thing behind you one day... Life is very short after all.... Nil desperandum... What comes around goes around, they say... Take care! Dookist xxxx

I have done nothing wrong...

During the course of this dispute my neighbour has resorted to lies, bribery, forgery, libel, threats, damage to property, interference with witness... Etc.. All of which I can prove...

So why am I the one being prosecuted...?

Where is the justice?!

Unfortunately I think it leaves you in a weak position, since these are all arguments that should have been raised at the time that a decision was made on costs. If they were raised at that time then presumably the judge already took them into account. It is going to be incredibly difficult to challenge anything to do with the costs judgment at this stage - civil procedure does not allow decisions to be re-opened or re-examined outside of following the formal appeal process, the general rule is that you have to bring forward every possible argument you might want to make at the time the decision is made.

 

My honest view is that rather than focusing too much energy on this hearing you may be better off thinking holistically about where a charging order would take you and where you go from here - particularly whether you want to issue a new claim against this person (I'm not sure this would be possible but it is worth examining the possibility in a lot of detail) and whether you have a potential way of dealing with this 23k debt.

Such as the fact he did not file his costs budget until 4:30 the day before the trial? Is that non compliance under the new rules? (CPR 3.14)

The judge had no idea what the costs were until my opponent's counsel mentioned them.... I have it all on the court transcript.

Isn't there something which states that unless costs are filed at least 7 days before a hearing, then only court costs can be claimed?

Hmmmm....

It sounds like this issue was already raised at the time of the costs decision being made. The court generally will not re-examine the same issue again at the CO hearing, again it comes back to the point of needing to appeal decisions you believe to be legally incorrect within the appropriate timeframes. I don't want to sound negative on this but I do want to make sure you go into the CO hearing with realistic expectations.

Yes... But, the matter was not adjudicated on... I accused the respondent of not serving the Part 36 Offer, but they said they had...

They say it left their post room by first class post... I told them I did not receive it, but apparently the respondent has the last word on the subject... although there is now evidence that the court did not receive form N251 relating to the CFA either.... This was queried at the trial as there was no form in the bundle... I have written to the court and they can find no form in their files...

There is the possibility that they failed to send the document, or they sent it and it went astray.... The main thing is that I did not receive a Part 36 Offer, so they are not entitled to a success fee...

So where does that leave me?

Unless Dookist challenges the outcome of the original hearing, then there’s very little that can be done to challenge the CO. Anything else would be a waste of time and could, IMHO, just open the doors to possible extra costs.

 

Applying for a set aside or an appeal should allow Dookist to halt or postpone the CO hearing (on application), so the priority must be to outline clearly the grounds for appeal (which I think are reasonably clear), and then putting those facts into a cogent and properly-referenced document – then get that process started well before the CO hearing.

 

I’d better get reading back through all this...

Many thanks....!

Dookist, I think you need to be very clear about what you are doing here and where this course of action will take you. The best possible (realistic) result you will achieve at the final charging order hearing is to delay the final charging order while the other issues are resolved. It is highly unlikely that anything will be resolved at the hearing. It won't be a magic bullet.

 

If you want to try and achieve a longer term solution, I think you would need to appeal the underlying judgment and/or the underlying costs order. A hearing about a charging order is not really an appropriate place to start challenging a final judgment and a final costs order - it is not designed to be an opportunity to re-open the old decisions.

 

You may well have had good grounds to appeal the original decision on the basis of the problems with your hearing. However you are now well past the time for appealing. If you are going to have a go at appealing, and you accept there is a substantial risk of this further increasing your legal costs, then I think you really need to get on with filing your N161. The later you leave it the more difficult it will be.

 

This issue with the N251 not being served has little relevance at this stage, I think. This is the kind of issue (together with the whole issue about the other side not having relief from sanctions for this) is the kind of issue which should have been taken into account at the time a decision was made about the 23k costs, and is quite difficult to start challenging 4 months after the decision was made. The judge at the charging order hearing is unlikely to re-examine this. Again, you'd need to look at an appeal for this.

 

The witness statement posted by The Mould is an admirable effort in difficult circumstances, but ultimately I think would be quite weak to turn up to that hearing with only a brief witness statement explaining some issues of dispute. You would essentially be saying that you may or may not appeal the costs order, and may or may not issue a new claim against your neighbour, at some unknown time in the future. This is a very unattractive argument since the judge would not be prepared to sit on an interim charging order indefinitely. It will be a much stronger argument if you can show that you have actually started the legal wheels moving by the time of the hearing. If you plan to start issuing appeals or new claims then I think you really need to get a move on.

 

Have you tried to find professional legal help?

Hello! Thank you for your advice....

The relevance of the N251 not being served, (and yes, I have previously brought this to the court's attention, along with other procedural errors, some very serious), is about the fact that entitlement to a 100% success fee then becomes questionable... If it can be proven that the form wasn't served on the court, then it will effectively halve the award for costs... So fairly relevant...

Professional legal help is mostly available only to the very wealthy... I did try for legal aid, and pro bono help, but it wasn't forthcoming...

Regards, Dookist.

Many thanks to you all for your advice...

General opinion seems to be that I should not be going over old ground when appearing at court to defend a Charging Order that I should have appealed way back.

Well, I tried to appeal immediately after the hearing to set aside my decision to withdraw and continue with the case, but this was denied me, with the judge saying that despite my disability, I appeared to have 'coped well during several hours of proceedings..'

I hear only vowel sounds and a lot of the time, given the conversation, I can usually guess what is being said...

For instance... Were I to hear "ow ow ow ow" my brain would translate it as being "How now brown cow"... simply because this is the most likely thing being said... and to all appearances, you are hearing and understanding what is being said... But of course, you are not... you are guessing.. and for much of the time, this can work perfectly well... albeit you can also have some hilarious 'conversations'...

So....this is how most people 'cope' having been deaf for most of their lives... They don't enjoy asking for things to be repeated all the time... It is frustrating for both sides...and quite embarrassing, too...

Yes, I just about manage with normal everyday conversations, but when the conversation enters the legal spectrum, one which I am not overly familiar with... (But I am learning fast!)... and say it included some Latin, just for good measure, then it may as well be another language.

The fact is... I was entitled to a fair trial but because nobody made any concessions towards my disability, I didn't get one...

So because I was a LIP and deaf and not familiar with legal protocol, I perhaps missed my opportunity to argue my case properly due to my ignorance of the rules, which are not exactly transparent in any case, even if you consider yourself to be of normal intelligence...

The hearing was more than a year ago, and I have struggled relentlessly, hoping above hope that justice will eventually prevail, but having the door slammed in my face all the way...

I have health problems caused by stress and anxiety... I want it to end.. It's a horrible feeling when you know that you are in the right, but somehow you can't make your voice heard...

Please.... Put your fingers in your ears and then go into a courtroom (stressful enough in itself) and then imagine being cross examined in a way that is aggressive and designed to deliberately trip you up....How do you think that feels... When you have worked hard for 18 months to prepare a case with no legal help, and you are expecting to get to court and have the audio loop that you were most specific about, that it was absolutely essential to your participation of the proceedings... And the loop is broken, malfunctioning, and you are panicking, and the judge is saying, "too bad... I wont adjourn... "... And you have just wasted 18 months of hard work...This can't be right, can it?!

I have done nothing wrong... I don't deserve this...

I really want the court to know how I feel at being mistreated in this way....and this hearing may be the only chance I get.

I'm sure they won't. Let's see what can be done.

 

Do you have any kind of documentation to prove your hearing problems that could be used as proof of your hearing impairment?

 

I am only suggesting this may be a route to appeal but hope those with better knowledge may be able to advise if there's any mileage in it.

Of course!

I have medical evidence of severe hearing impairment going back many years to childhood, where I had problems at school...

The judge was wrong not to have adjourned when I told him prior to the trial that I was unable to hear through the Audio loop provided by the court... He should at least have adjourned and asked me to provide evidence of my deafness...

The whole of the first page of the court transcript is taken up with my address to the judge that I couldn't hear a thing which was being said, and him shouting louder and louder until I could just about hear him, then him saying that everyone would speak up so that I could hear...(they did not... They had to be reminded several times throughout to speak up so that I could hear)...

At one point I even asked to be allowed to sit closer to my opponent's counsel during his cross examination of me and the Judge refused...

I know I am challenging judgement here, but how can anyone look at the evidence and say that there was no bias?

I was actually waiting for two hearing aids to be provided by the NHS at the time of the trial... I reminded him of this and it appears on the court transcript...

I cannot hear a tv at full volume and watch with subtitles.

But how does this help with the situation I am in re the CO?

This is all stuff which has gone before... Can I go over old ground in order to argue my opponent's award for costs?

Very confusing!

I have been thinking about this dookist and it seems to me that the main issue here is that your main disadvantage was not being able to hear. This may or may not have made a difference to the outcome but it seems to me like disability discrimination and I wonder if there is any way of appealing on these grounds. I hope others may be able to comment on this.

 

I understand how difficult this would be for you to continue to fight and you are the only one who can decide. Please know that you will continue to have support from cag if you decide to take things further.

Hi caro...

This is it... It goes way back to the start...and I did try to appeal this, but the Judge refused to allow an appeal, saying that I seemed to cope well throughout several hours of proceedings... I wasn't coping... I only found out what was being said by way of a court transcript, and it is obvious from this that I was misunderstanding a lot of stuff which had I heard, I would have argued the point made.

Sometimes it comes across that a deaf person is hearing and understanding the conversation... I was just guessing much of it... It's what you do, rather than keep asking people to repeat themselves... It is a default mode after being deaf for most of your life, that you give up trying to hear anything... My hearing loss is such that I can hear certain frequencies at 80dB! Which means speech has to be as loud as motorway traffic... I can assure you that everyone in that courtroom did not even try to make themselves heard...

It was definitely disability discrimination...

But I am where I am... I can't change this... I will end up in debt through no fault of my own, other than I tried to challenge my neighbour over land which was given to me and I was fully entitled to, having occupied it for more than 10 years.

Many thanks for your comments... I just hope that people are not discouraged by what has gone before, to offer their help...

Kind regards, Dookist.

Just want to assure you dookist that I don't think you're stupid at all, but just wanted you to consider possible ramifications. It is difficult as a litigant in person, but you must do what is best for you and your family.

 

Like you, and most people on CAG, I have no legal training, and my knowledge is at best limited, which is why I don't often advise on legal issues such as yours. I do wish you the very best, whatever you decide.

Dear caro, Thanks for your help... I really appreciate your input! Regards, Dookist

I oe that i may allowed to venture an opinion on this, without it appearing to be counterproductive, but to me this makes little sense. There are identifiable causes for challenging the final charging order and this is not one of them, what is happening here is that the judgment is being challenged, and i suspect that is precisely what the judge will say when the court receives this.

Hi Dodgeball....

It is very difficult...

Of course one must not be seen to be challenging Judgement... Even if you feel, as I do, the judgement was biased and unfair... And I don't know where that leaves me.

Going right back to the start, the judge made a prejudicial remark to me prior to trial, which led me to believe he would go against me. The next day, when the audio loop wasn't working, the judge refused to adjourn. He then went on to ignore CPR rules, which lead to some serious procedural errors being made.

Every step of the way there seems to have been gross unfairness... and because of this, I have to go to court to fight a charging order and be left with huge debts...

I don't know any other way to argue my case than by challenging judgement... (If this is what I am doing).

Perhaps the County Court is the wrong place to do it, but I have tried very hard, especially in challenging the non receipt of the Part 36 Offer, but have been told my opponent's response has to be the last word on the subject, and his lawyer has stated that the documents were sent... so that's that, then?! I just have to accept they were sent, even though they cannot prove that they were? Even though the court seems to be missing these documents also?! Even though there was a deadline, which it is very likely they were unable to meet?!

For instance, I found out only at the weekend that my opponent's Statement of Truth has not been signed, which makes it invalid, apparently. I wasn't aware of this rule...

Yes, its a huge mess, but I don't have the means to go to the Court of Appeal...

And I don't know whether I have the strength to take more of the same, as I have multiple health problems.

I think I should just say what I think at this hearing and then try and pick up the pieces and get on with my life... Three years of stress is enough.

Thank you for your message... I really do appreciate everyone's opinion on this.

Regards, Dookist.

Thread tidied.

 

Dookist, you would be well advised to consider all information that has been given to you. When all is said and done it is yourself who will be at the sharp end of things.

Of course... That's why I am here....!

Regards, Dookist