Yet another Order to Obtain Information following non-payment of Court Order

[impecunious]

Hi Guys

 

 

I originally joined CAG about seven years ago to seek advice after being sued for a personal injuries claim. Judgement was made by default - court papers being sent to a previous address by recorded delivery and not received by me, so I was unable to defend myself in court. My subsequent application to set aside was dismissed.

 

 

Quantum hearing was heard in August 2009. An oral examination was also conducted as to my means. It was evident that I was not in a position to pay and I offered £1.00/month. This was considered "unacceptable" by the Judgement Creditor and I have never been advised the amount that would be acceptable. I have only made payments totalling £6.00 in the early days after the case ... I have never received any correspondence relating to this case from the Judgement Creditor's legal team and no payment enforcement has ever been attempted.

 

 

This morning I was handed a summons to appear at court for another oral examination later this month. I have no assets, am self-employed, in receipt of WTC, HB and CTR -- my weekly income is considerably less than the £72.40 the law states I need to live on each week.

 

 

I'm sure the oral examination is just a formality really .. but if anyone could offer any sound advice, I'd appreciate it.

 

 

Best wishes

 

 

 

 

Imp

[Andyorch]

Going to move you to General Legal Issues impecunious ...you will get a better response there.

 

Regards

 

Andy

[Andyorch]

Take a read of the following thread...this is opposite of the fence as the poster has made a claim and is issuing...but it will give you an idea.

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?381806-Lending-money-to-a-friend./page39

 

 

Andy

[impecunious]

Thank you Andy!

[impecunious]

The Order to Obtain Information was hand-delivered to my home address but the name/address on the summons to the court hearing was my business name and the address of the retail unit I briefly occupied last year.

 

 

A man banged incredibly loudly on my front door - I thought someone was actually breaking in - he refused to show me any ID or state his business and ordered me to open my front door to him. He was very intimidating - shouting, putting his face right up to the glass in the front door and snarling. (I had no idea who he was - it was 8.00 am - I was still in my pjs) I refused to open the door or let him enter into my home.) He then proceeded to shout out loud that I had to go to court otherwise I could be sent to prison. All very embarrassing but I certainly wasn't going to let anyone into my house who I didn't know purely based on the fact that he was shouting at me.

 

 

I talked to him calmly through the front door. Once he posted the summons through the door, I was relieved to see that it was just an order to obtain information (which to be honest, I'd been expecting for the last couple of weeks).

 

 

My questions are:

 

 

1. Can summons to be served to an address other than that stated on the actual summons? (Before going back to court to have the address changed.)

2. Are process servers usually so damn aggressive? Is there a complaint's procedure?

 

 

Thank you.

 

 

 

 

 

 

Imp

Edited November 11, 2015 by impecunious
Clarity

[Andyorch]

1.Yes

 

2. Varies....do you have the name of the server?

 

Andy

[impecunious]

Thank Andy. No, the process server offered no ID and did not identify himself.

 

 

Imp

[reallymadwoman]

For those with more knowledge than me, I have a concern regarding the long gap between the original hearings and this new hearing, with apparently no contact in the meantime. Subject to confirmation of the time scales by the OP, shouldn't the claimant have done something about enforcing before now and/or might they need the courts permission to enforce after such a long gap?

[GrumpyToSayTheLeast]

Yes, the process server can serve anywhere he finds you.

 

The threats made might sound extreme but the court order will have a penal notice attached meaning that if you fail to comply, you will be sent to prison for around 7 days. That said, its not an offence to refuse to accept it, but unless you have a recording of him threatening exactly that, I feel you have very little chance of a complaint being looked at.

 

No, no responsibility for the claimant to ha e done anything during the time gap. Could have ben waiting for circumstances to change etc and then a new hearing. The claimant would be paying court fees each time the application for an oral exam is lodged. But...that may be added to the outstanding debt.

[Andyorch]

Good point RMW I hadnt notice the date of judgment

 

....however an action cannot be brought on any judgment after the expiry of 6 years from the date it became enforceable. The term “action” only applies to the commencement of fresh proceedings on a judgment, it does not include enforcement proceedings so, strictly speaking, for enforcement purposes and enforcement proceedings, no limitation period applies.

 

Any delay in enforcement on the part of the judgment creditor will affect any award of interest as recoverable interest is limited to 6 years on a judgment that is executed after the expiry of the 6 year period.

 

Court permission is required to enforce a judgment debt that is more than 6 years old. In a particular case of Warrants of Execution, these must be renewed after 12 months if they have not been enforced. Further, the court is entitled to take account of delay and enforcement when exercising its discretion to grant any Order sought.

 

Regards

 

Andy

[impecunious]

It's been 6 years and 3 months since the original judgement. I must admit, I've been very surprised not to have heard from the Judgement Creditor's legal team before now but I suppose they act on his instruction. The amount of the judgement has now risen to c. £40.000.00. There has never been any attempt at enforcing payment either. I should imagine that the Judgement Creditor's legal team aren't too happy about taking on a big-wig barrister at the time and not being paid for their services.

 

 

It was always a phyrric victory ... it was a claim for personal injuries - I had no insurance, no assets, no money. Waste of time suing a "man of straw" ..... I couldn't even afford legal representation, so represented myself as a litigant in person. The last oral examination - which was more like an "inquisition" - lasted for nearly 4 hours with no breaks and I found myself confronting a legal team consisting of one barrister, one solicitor and one other ... it was incredibly daunting. It resulted in NOTHING!

 

 

Obviously, I'm better prepared this time ... I hope it's just a formality this time. I've more or less put together all the information requested. This proves, without a shadow of a doubt, that I'm as poor as a church mouse and completely unable to pay. I may be asked to pay for the hearing and costs on the day ... they can but try! I survive on WTC, HB and a tiny pension and I'm not in receipt of any attachable benefits and I don't have any tangible assets.

 

 

I thought that the Judgement Creditor must have died -- he's 80+ now but that doesn't seem to be the case. When he dies, I will owe his estate but hopefully when I die, the debt will die with me as I have nothing to leave.

 

 

I feel sorry for the old guy .... his legal team obviously promised him the earth and he's been living in hope since the accident happened in early 2005. He was delighted to be awarded £15,000 by the Judge at the Quantum Hearing but I told him then I didn't have the means to pay and he probably wouldn't see a penny. it's oh so easy to get a judgement but it's completely another thing converting that into hard cash.

 

 

 

 

Imp

[impecunious]

The oral examination was held today. All very straightforward and not in the least daunting this time, with only a paralegal attending on behalf of the Judgement Creditor. The information requested was little more than the normal paperwork I'd produce for the council for continuation of housing benefit.

 

 

I have been asked to provide bank statements from 10-12 yrs ago and present them at a continuation of the examination (date still to be determined). Not sure if that's possible but will try. Can only produce paperwork within my control.

 

 

My main source of income is WTC and I get full Housing Benefit and CTR. I honestly can't see how they can enforce the court order (now amounting to just under £40.000) and don't think they have any real options open to them. As far as I know, WTC, HB and CTR are not "attachable" benefits and, as advised in an earlier post, my income falls below the amount that the law says I need to live on ...... definitely a "can't pay not a won't pay" ...

 

 

Imp

[impecunious]

Andyorch - after all this time, what would constitute "fresh proceedings"?

 

 

"....however an action cannot be brought on any judgment after the expiry of 6 years from the date it became enforceable. The term “action” only applies to the commencement of fresh proceedings on a judgment, it does not include enforcement proceedings so, strictly speaking, for enforcement purposes and enforcement proceedings, no limitation period applies. "

[Andyorch]

Fresh proceedings are extra litigation attached the initial claim it does not include enforcement proceedings so, strictly speaking, for enforcement purposes and proceedings, no limitation period applies.

[caledfwlch]

Why would they need to see Bank Statements from 12 years ago? Seems a bit pointless, even if you were loaded 12 years ago, you clearly were not 6 years ago when this went to court. Are the legal fees correct, as £25,000 on top of a judgement for what you say was £15,000 sounds ludicrous.

 

If you don't own a Home or any assets, it might be worth contacting them and pointing out that with no assets and your current income situation etc, it would actually be vastly cheaper for you to go bankrupt, so continuing to pursue is only wasting their money.

 

Do you have a Car? It's always possible they might try and get a Warrant and send a High Court Enforcement Officer - as its a personal debt, with you at your residential home, the HCEO has no more powers than a normal bailiff, and providing you know your rights, ie, keep the doors to the house locked at all times, and any car hidden or parked on someone elses land, such as a family members drive, and refuse to allow them peaceful entry to your home, ie, inviting them in, then there is very little, also known as diddly squat the HCEO could do.

 

I get the feeling the actual Creditor is probably a bit of a pawn in this himself - the Legal Representation stand to make nearly double his own compensation, £25,000 is serious cash, and I wonder if they are continuing to flog this horse because of the significant reward if they manage to get payment - it is possible the guy has pretty much buried any hope of ever seeing a penny, and the Solicitors are acting "on their own" having done a review of money they are owed, and finding you owe them a significant sum in fees. Equally, it's possible the Guy is being used as a cash horse by them - if he is paying for the current actions, it is possible he is paying them for doing them, so they are again flogging a dead horse as they are cashing in on what he is paying them.

 

With your current financial situation, no matter how much the Creditor and his legal reps might whine and whinge, £1 a week or similar is pretty much the only offer you can make, and there is nothing they can do about that. Seems strange they are even bothering - I suspect the wanting statements from 12 years (banks will only go 6 years so I doubt you can be forcibly obliged to supply any further anyway) thing is they are hoping you have hidden assets somewhere, or they are hoping you gave a load of money to a friend or family member, and will then try and bankrupt you, and see if the Insolvency Service can try and force friend/family member to pay the money into the bankruptcy claiming they were treaded as preferential Creditors. There was a thread from a guy who's brother owed him £20,000, paid him out of redundancy money then a year or two later went bankrupt, and the Insolvency Service are hounding the guy threatening court saying as his brother treated him preferentially, even though the brother did not believe himself to be insolvent at the time, then despite the fact the Poster was owed this money he must pay it to the bankruptcy, though not a penny will go to any creditors, it will all be swallowed up by the "Costs" of the Trustees dealing with it, as usual.

 

I suspect your only real worry is a Bailiff or HCEO turning up, but as I say they are easily defended against providing you read up on your rights, and keep doors locked/car on private land not owned by you.

[GrumpyToSayTheLeast]

Caledfwlch, just to advise what bits you have said that wrong about HCEO's

1. Its a writ, not a warrant.

2. Hiding the car wont work as most now have ANPR vans so its very likely that putting a few street away will just result in it being clamped without you knowing until a letter drops through your door.

3. 3rd party drive or property is of no consequence. We can still take the car from there.

 

Everything else is spot on.

[Ganymede]

Why would they need to see Bank Statements from 12 years ago? Seems a bit pointless, even if you were loaded 12 years ago, you clearly were not 6 years ago when this went to court. Are the legal fees correct, as £25,000 on top of a judgement for what you say was £15,000 sounds ludicrous.

 

If you don't own a Home or any assets, it might be worth contacting them and pointing out that with no assets and your current income situation etc, it would actually be vastly cheaper for you to go bankrupt, so continuing to pursue is only wasting their money.

 

Do you have a Car? It's always possible they might try and get a Warrant and send a High Court Enforcement Officer - as its a personal debt, with you at your residential home, the HCEO has no more powers than a normal bailiff, and providing you know your rights, ie, keep the doors to the house locked at all times, and any car hidden or parked on someone elses land, such as a family members drive, and refuse to allow them peaceful entry to your home, ie, inviting them in, then there is very little, also known as diddly squat the HCEO could do.

 

I get the feeling the actual Creditor is probably a bit of a pawn in this himself - the Legal Representation stand to make nearly double his own compensation, £25,000 is serious cash, and I wonder if they are continuing to flog this horse because of the significant reward if they manage to get payment - it is possible the guy has pretty much buried any hope of ever seeing a penny, and the Solicitors are acting "on their own" having done a review of money they are owed, and finding you owe them a significant sum in fees. Equally, it's possible the Guy is being used as a cash horse by them - if he is paying for the current actions, it is possible he is paying them for doing them, so they are again flogging a dead horse as they are cashing in on what he is paying them.

 

With your current financial situation, no matter how much the Creditor and his legal reps might whine and whinge, £1 a week or similar is pretty much the only offer you can make, and there is nothing they can do about that. Seems strange they are even bothering - I suspect the wanting statements from 12 years (banks will only go 6 years so I doubt you can be forcibly obliged to supply any further anyway) thing is they are hoping you have hidden assets somewhere, or they are hoping you gave a load of money to a friend or family member, and will then try and bankrupt you, and see if the Insolvency Service can try and force friend/family member to pay the money into the bankruptcy claiming they were treaded as preferential Creditors. There was a thread from a guy who's brother owed him £20,000, paid him out of redundancy money then a year or two later went bankrupt, and the Insolvency Service are hounding the guy threatening court saying as his brother treated him preferentially, even though the brother did not believe himself to be insolvent at the time, then despite the fact the Poster was owed this money he must pay it to the bankruptcy, though not a penny will go to any creditors, it will all be swallowed up by the "Costs" of the Trustees dealing with it, as usual.

 

I suspect your only real worry is a Bailiff or HCEO turning up, but as I say they are easily defended against providing you read up on your rights, and keep doors locked/car on private land not owned by you.

 

Mostly baseless, speculative nonsense.

[impecunious]

Thanks for the responses guys. The quantum hearing awarded £15,000 to the Judgement Creditor and there was c. £12,000 legal costs. Statutory interest for 6 years takes the total to just under £40,000 - an eye-watering amount - but that won't rise now as interest is only added for 6 years. You're right, I didn't have the money then and I certainly have nothing now. It was obvious from the EX140 form that I had to complete at the oral examination this week that I was unable to offer any monthly payments - not even £1.00/month - so I didn't. I have no tangible assets and haven't had a car since mine failed its MOT over a year ago.

 

 

It would be completely pointless for the Judgement Creditor to pay to transfer up to the High Court for a Writ of Fi-Fa, then pay for enforcement by HCEOs, etc. (After signing up to CAG over 6 years ago, I'm pretty clued up on my rights when it comes to EOs and HCEOs.) He's already paid for the Order to Obtain Information, solicitors fees for attending at court and for a process server. All throwing good money after bad.

 

 

I can't really see how any kind of enforcement can be made: I'm not employed, so can't do Attachment to Earnings, have no property or assets and no-one owes me any money, so no charging orders or third party debt orders can be made, no attachable benefits ,,,,,, not even enough regular earnings through self-employed to make an instalment order ......

 

 

The old guy is 80 now - I really do think he's been badly served by his legal team but there isn't anything I can do to help. His claim for personal injuries was lodged with the court one day inside the three year statute of limitation (I think perhaps following a no win, no fee cold call). It's been almost ten years since his alleged accident and he still hasn't had a penny. His solicitors should have determined my ability to pay before taking the claim to court and giving him false hope.

 

 

As judgement was found in his favour by default, he "won" the case but I have no idea who pays his legal fees - I certainly can't. I do worry about it .... for him, not for me. I've realised now that despite being hauled through court, mauled by a ferocious but toothless barrister, being a litigant in person and subsequently becoming a judgement debtor, that the sky didn't fall on my head! Until this second oral examination, I hadn't heard a peep from his solicitors for over six years.

 

 

I presume his solicitors want to see historic bank statements to make sure I haven't squirrelled away any money, despite my accounts debit balances. I can't see the bank spending any time or money raking through the archives to find statements that old. But, I will give it a try - again!

 

 

Being made bankrupt is not really an option - no-one would gain anything and it's costly. Student loans and unsatisfied claims for personal injuries remain extant after bankruptcy .... meaning I would still be over £55,000 in debt. Luckily, my student loan will get written off soon as I'm nearing retirement age. The only money I really owe is for this unsatisfied claim for damages.

 

 

it's all an unmitigated disaster really .... if the old guy had come to me at the time of the accident, I would have done the decent thing -- taken him to hospital, compensated him for time off work and for any injury caused ... but, by the time I was made aware of the incident - many years later, I had already become a victim of the recession and had lost everything.

 

 

I'm sure there's a moral to this story somewhere but it's far too early in the morning ......

 

 

Imp

[Ganymede]

I assume then that you were driving with no motor insurance at the time otherwise they'd be picking up the bill?

[impecunious]

No, it wasn't a driving accident .. I've never driven without valid insurance, tax or MOT. That would be totally unforgiveable.

 

Imp

[Ganymede]

Fair enough. What was it then?

 

Did he trip on your land/property or something like that?

[impecunious]

Yes, alleged accident at rear of party wall next to pavement. Very spurious claim. Insurance was compromised due to insurance company sending documents to derelift building site 8 weeks befre incident. Otherwise it would have been a straightforward insurance claim. Sod's law.

 

Imp

[caledfwlch]

Caledfwlch, just to advise what bits you have said that wrong about HCEO's

1. Its a writ, not a warrant.

2. Hiding the car wont work as most now have ANPR vans so its very likely that putting a few street away will just result in it being clamped without you knowing until a letter drops through your door.

3. 3rd party drive or property is of no consequence. We can still take the car from there.

 

Everything else is spot on.

 

Can you provide a copy of legislation allowing you to seize from private property not owned by the Debtor?

 

Everyone seems to agree you can't including CAB and even the HCEO's on Can't Pay admitted they cannot seize from private property when a Debtor parked his car in a pub's car park.

 

You can only seize from the public Highway or land owned by the Debtor, and you know it.

 

https://www.citizensadvice.org.uk/debt-and-money/action-your-creditor-can-take/bailiffs/your-belongings-and-bailiffs/what-goods-can-a-bailiff-take/vehicles-and-bailiffs/

 

If you notice a Car is being parked in at the private land all the time, then you can apply for a warrant to seize it there, but when you turn up on normal enforcement you cannot take it, if its parked in the next door's drive for example.

[GrumpyToSayTheLeast]

You have it spot on. We need permission of the court. But it can be taken. Doesn't take long to get that permission.

My point was that it can be taken, as opposed to you saying it was safe in 3rd party property.

[GrumpyToSayTheLeast]

And to point out, its the highway, where the debtor resides or continues to trade from.