Order to attend court to answer question of means

[Ceres]

About a year ago my brother had a county court judgement made against him. He is disabled with learning difficulties and does not handle his own money.

 

Today a person from the court call at the flat to serve him an order to attend court to answer under oath about his means. My mother answered the door and refused to let him in or let him speak to my brother. She told him we usually deal with my brother's affairs. He gave her the notice and made a note on his sheet that he had given it to her for that reason (actually while she helps with his money she does not have a power of attorney to handle things on his behalf).

 

My first question is: is it too late to write to the court and seek to have the order amended to an amount he can afford?

 

Secondly how do we deal with the court when he does not handle his affairs and has next to know idea of what his income and expenses are?

 

Thanks

[AndyOrch]

Hi Ceres and welcome to CAG

 

 

Has any payment been made towards the judgment or any arrangement made with the creditor re a payment plan?

 

Is your your brother in employment?

 

Regards

 

Andy

[unclebulgaria67]

I believe that your brother can send someone to the court to act on his behalf, but you would need to contact the court to find out the process for this. There is probably some form that needs to be completed.

 

There is also a procedure for paying by affordable intalments, by making an offer to the claimant. Again the court staff should be able to confirm the process for this.

 

Something from a GP or healthcare professional regarding your brothers position will be very useful for the claimant and court to understand the situation. If you don't have this, it would be wise to obtain a letter.

[Ceres]

He is unemployed, claiming EASA. I think a

 

Thank you, I will ring the court in the morning.

[AndyOrch]

Ceres if you look on the Order (bottom left) you will see the court stationary number ...can you confirm?

[Ceres]

It said : N39 order to attend court for questioning

 

Unfortunately I was out at the time the guy called so only going by what my mother told me. When she told him my brother was disabled and had learning difficulties, he changed from insisting on speaking to him to wanting to leave. She insisted that he told her what it was about and that he left the order. He had another form with him but took that away so not sure what that was.

 

Was a little surprised that he called around on a Sunday although I suppose the courts do work 7 days even though their offices are closed when I tried to ring them, and that he handed it over especially when he said himself that he shouldn't have.

Edited September 15, 2013 by Ceres

[AndyOrch]

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part71/pd_part71

 

http://www.adviceguide.org.uk/wales/debt_w/debt_action_your_creditor_can_take_e/how_a_creditor_can_get_information_about_your_finances.htm

 

Regards

 

Andy

[unclebulgaria67]

It said : N39 order to attend court for questioning

 

Unfortunately I was out at the time the guy called so only going by what my mother told me. When she told him my brother was disabled and had learning difficulties, he changed from insisting on speaking to him to wanting to leave. She insisted that he told her what it was about and that he left the order. He had another form with him but took that away so not sure what that was.

 

Was a little surprised that he called around on a Sunday although I suppose the courts do work 7 days even though their offices are closed when I tried to ring them, and that he handed it over especially when he said himself that he shouldn't have.

 

If your Brother is being helped by local social services, then it might be a good idea to contact the person concerned. They may have access to staff that deal with these debt issues for him and liase with the court/creditors.

[AndyOrch]

Service of the n39 can be from a process server not ness a court bailiff .

 

The Claimant Enforcement must serve it on the person ordered to attend personally, at least 14 days before the hearing.

 

Travelling expenses (for orders to attend only)

The person ordered to attend can ask to be paid a sufficient sum to cover their travelling expenses (formerly called ‘conduct money’) to and from the court. Such a request should reach you within 7 days of service of the order.

 

 

Affidavit of service

 

The Claimant must wait at least 7 working days after service of the N39, to give sufficient time for a request to be made for travelling expenses, before swearing an affidavit of service (form EX550)

 

giving details of how and when the order was served

stating either that the person ordered to attend court has not requested payment of their travelling expenses or that the judgment creditor, that is HMRC, has paid travelling expenses in line with such a request

stating how much of the judgment debt remains unpaid.The Claimant must then either file the affidavit at least 2 days before the hearing (in order that the court have enough time to link it with their papers), or produce it at the hearing.

 

 

Inability to serve the order

 

If the Claimant are not able to serve the order they must inform the court at least 7 working days before the date appointed for hearing. They should apply on form N446 for the order to be reissued and a fresh date set for hearing.

 

Ceres I will ask again... has your brother made any payment against the judgment......

 

Regards

 

Andy

[Ceres]

As far as I know he has not made any payment since the order was made last year. To be honest once his rent is paid, his electric and a few other bills are dealt with he hardly has any money left. Most months I have to cover him for a few things out of my pocket and the court judgement was something I had no chance of paying since the order was in full.

 

Thanks for the response that makes a lot more sense if it is a process server. To be fair they have definitely served it with enough time to go (the attendance date was for 6 weeks time). Not sure handing it to his mother is quite what they meant by serving it on him although to be fair my mother is pretty scary sometimes and if she hadn't insisted I don't think he would have given it to her after being told about the learning difficulties.

Edited September 15, 2013 by Ceres

[AndyOrch]

And I assume not made any arrangement to pay monthly.....

 

How severe would you class his " learning difficulties " is he being treated under the Mental Health Act ?

 

If you prefer not to answer that I understand but here is further information regarding the Menatal Health Act and the CPR ( Civil Procedure Rules )

 

Civil Procedure (Amendment) Rules 2005/352

These Rules amend the Civil Procedure Rules by enabling a patient to be made a respondent to a s29 nearest relative displacement application. In force 4/4/05. The amended Rule (CCR Order 49 rule 12) was revoked on 6/4/07 but a similar position is retained in CPR PD8A para 18.3 which states: "(1) the nearest relative must be made a respondent, unless (a) the application is made on the grounds that the patient has no nearest relative or that it is not reasonably practicable to ascertain whether he has a nearest relative; or (b) the court orders otherwise; and (2) the court may order that any other person shall be made a respondent."

Contents [hide]

1 Extract from Explanatory Note

2 Extracts from Explanatory Memorandum

3 See also

4 External links

Extract from Explanatory Note

 

These Rules amend the Civil Procedure Rules 1998 by—

 

(a) deleting words from CCR Order 49, rule 12(3)(b) to enable a patient to be made a respondent to an application under section 29 of the Mental Health Act 1983 for an order that the functions of his nearest relative shall be exercisable by some other person; ...

Extracts from Explanatory Memorandum

 

2. Description

 

2.1 The instrument amends the Civil Procedure Rules 1998 (“the CPR”) by:-

 

(a) deleting words from CCR Order 49, rule 12(3)(b) to enable a patient to be made a respondent to an application under section 29 of the Mental Health Act 1983;

 

4. Legislative Background

 

4.2 Certain provisions of the County Court Rules (“CCR”) are preserved in Schedule 2 to the CPR. The amendment to CCR Order 49, rule 12 (in rule 8 of the instrument) concerns proceedings under section 29 Mental Health Act 1983 for an order that the functions of the nearest relative should be exercisable by some other person. Rule 12(3) concerns who may be joined as a respondent to an application under that section, and rule 12(3)(b) states that “the court may order that any other person, not being the patient, shall be made a respondent”.

 

7. Policy background

 

7.2 CCR Order 49, rule 12(3)(b) is amended to allow a patient to be joined as a respondent to proceedings under section 29 of the Mental Health Act 1983. The current rule, which replicates an old provision, precludes the patient from being joined in proceedings under that section. It is considered that this restriction is no longer appropriate to safeguard the patient’s interests. The CPRC has decided that it would be appropriate to amend the rule to permit the court to make an order allowing the patient to be joined as respondent in proceedings under that section.

 

 

Further :- http://www.legislation.gov.uk/uksi/1998/3132/part/21/made

 

Just to reiterate the severity of this order :-

 

The questioning

 

This will take place in the court local to the judgment debtor. Any documents you need to file relating to the questioning must be filed at that court.

The debtor will be asked to swear an oath and then questioning will begin. All the relevant standard questions, plus any you have specified will be asked by the court officer. You may attend if you wish, but it isn’t necessary. After the questioning, you will be sent a copy of the Record of Examination.

 

Non compliance

 

If the debtor either refuses to take the oath or answer questions, or doesn’t attend the questioning, the Circuit Judge will order the issue of a suspended committal order, which, again must be correctly served in the same way as the original order.

If the judgment debtor fails to attend on the new date given in the suspended committal order, then a warrant of arrest will be issued and passed to a county court bailiff. Once arrested, the defendant will go before a judge. If he answers the questions then, the judge will normally discharge the suspended committal order.

If the defendant still won’t comply, then he will normally be sent to prison for the time specified in the suspended committal order.

 

Regards

 

Andy

[Ceres]

No, no monthly arrangement was made.

[AndyOrch]

No, no monthly arrangement was made.

 

Oh well that's why the above has been served.