I owe legal costs- Judgement Creditor charging daily interest.

[Dookist]

Hi Mould... That's amazing, thanks!

 

I definitely didn't receive Form N251... You may think the judge is a bit lax here, but you wouldn't believe how he bent the rules relating to Form NAP... The form my opponent made his objection on...

 

According to the Land Registration rules, any objection to an application to register land must be made on form NAP, and if the objector wishes to rely on para 5 of schedule 6 of the LRA, 2002, he MUST tick BOTH the boxes on the form... If this isn't done, or if it isn't corrected within 65 business days, the objector loses the entitlement to rely on the rule... and the applicant succeeds automatically to have the land registered in their name...My neighbour ticked just the one box, which meant his whole case, which relied on that rule, should have collapsed.. But no... When I pointed this out to the judge after withdrawing from the Trial, he allowed my opponent the benefit of the doubt as "he obviously INTENDED to rely on the rule... " Why was it obvious? Not in his accompanying Statement Of Case it wasn't....I feel this is a serious procedural error.... He quoted the Mannaii test or something... But reading through, even this disallowed the objection... So was the Judge biased... I truly think he was... Perhaps he took a bung from my neighbour... Weird how he arrived for a site visit along with my neighbour and his counsel all together, having probably discussed the case without including me.... Many thanks for the link... Very useful!

[Ganymede]

Please don't start accusing the Judge of that, it won't help your case if you get back to Court.

[Dookist]

Well... Obviously!

 

This is just me being flippant...

[Ganymede]

Just making sure!

[Dookist]

I believe in Justice and fairness, but this was not it....a deaf LIP being made to struggle through proceedings without an audio loop was unnecessarily harsh.....and there WERE procedural errors that were waved aside, because when you don't know the law, you are not in a position to argue... and when I apologised to the Judge for not understanding the finer points.. do you know what he said? "well the answer to that is not to self litigate"....You can't blame me for feeling that the Judge was biased.... Pfft!

[Dookist]

Just making sure!

 

Not QUITE as daft as I look....!

[The Mould]

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1537.html

 

Here’s the link to the Court of Appeal judgment in the Mitchell case.

 

Kind regards

The Mould

 

By what time/date do you need to file and serve your witness statement in opposition of his charging order application?

 

Kind regards

The Mould

[Dookist]

Thanks for the link....The hearing is on 18-08-14

 

Hi Mould...

 

Hmmmm... The first time I saw my opponents costs budget was in an email the day before the trial... I don't think the court received a copy, or if they did, the Judge wasn't aware of it as he had to has the opponents counsel how much they were... That's when he started saying they would be lucky to get anywhere near what they were asking, etc.. Then saying about the CFA and saying he would have to look at it closely before making a decision, suggests he had not seen these documents prior to trial.

 

I admit to being out of my depth completely here... I had assumed my opponents costs would be similar to my own... I had 18 months of advice with a solicitor prior to trial, which cost £1,400 but he had only 6 months with a paralegal... And it's tens of thousands... I was amazed at the difference.. The judge was also puzzled as to why he used a firm a very long distance away instead of a local one... Something doesn't add up, and knowing my opponent's propensity to lie and cheat, I wouldn't be surprised if he wasn't pulling some strings somehow... I know his aim is to bankrupt us, as he has said as much in a telephone conversation to my husband. He has run up a huge bill against property, which the Judge stated to be worth less than £10k. It is very irresponsible, especially when I had already offered him 4 times the market price for the land when he offered it to me, which he refused... He played cat and mouse with me... It was just a huge game to him. He doesn't want or need the land and this is something else the judge mentioned in his Order for costs.

 

Dookist.

[The Mould]

OK Dookist

 

In that case you must file & serve your witness statement and any evidence in support in opposition to the Final Charging Order by no later than 4:30pm on Wednesday 6th August 2014 (this is 7 days before the hearing on the 18 August).

 

See my post# 59 on page 3 and the CPR r.78.3 (1) & r.78.3 (2) © & (d) in respect of the above and in respect of you being entitled under those provisions to ask the judge to decide the issues in dispute as regards non-service of Form N251 by the Claimant and the sanctions imposed under CPR Part 3 r.3.9 on the Claimant as per the qualified authority thereon handed down by the Court of Appeal in Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537 and also of your valid claim against this neighbour (the Claimant) for interfering with your contractual relations with the intended purchasers of your property which caused the buyers to abandon the transaction and caused you the loss of the full sale price to which he is liable for pursuant to the authority of Lumley v Gye [1853] QB and which provides you with grounds in these charging order proceedings to raise an equitable set-off of_£_____________________________(state the sale price of your property) thereunder against his claim of £23k, therefore, your liability for that £23k is completely extinguished and it is the case that the Claimant is actually indebted to you.

 

You can set all these facts out in your witness statement and also you will need the evidence that supports this and a copy of the authorities (the case law posted here) and ask the Court to exercise its powers on these outstanding issues under CPR Pt 73 r.73.8 (2) © & (d) and direct a trial on these issues and give the parties directions for the same.

 

Kind regards

The Mould

 

 

Dookist

 

Further, as regards the Defendants’ failure to serve the N251, see CPR r. 44.3B (1) © below and refer to this rule also at the Final Charging Order hearing and state that the Defendant has not filed any application to the Court under CPR r.3.9 for relief from this sanction. (again, see the Court of Appeal authority in Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537 on this point of law)

 

Rule 44.3B Limits on recovery under funding arrangements

44.3B

(1) Unless the court orders otherwise, a party may not recover as an additional liability—

(a) any proportion of the percentage increase relating to the cost to the legal representative of the postponement of the payment of his fees and expenses;

(b) any provision made by a membership organisation which exceeds the likely cost to that party of the premium of an insurance policy against the risk of incurring a liability to pay the costs of other parties to the proceedings;

© any additional liability for any period during which that party failed to provide information about a funding arrangement in accordance with a rule, practice direction or court order;

(d) any percentage increase where that party has failed to comply with—

(i) a requirement in the Costs Practice Direction; or

(ii) a court order,to disclose in any assessment proceedings the reasons for setting the percentage increase at the level stated in the conditional fee agreement;

(e) any insurance premium where that party has failed to provide information about the insurance policy in question by the time required by a rule, practice direction or court order.(Paragraph 9.3 of the Practice Direction (Pre-Action Conduct) provides that a party must inform any other party as soon as possible about a funding arrangement entered into before the start of proceedings.)

(2) This rule does not apply in an assessment under rule 48.9 (assessment of a solicitor's bill to his client).

(Rule 3.9 sets out the circumstances the court will consider on an application for relief from a sanction for failure to comply with any rule, practice direction or court order.)

 

Kind regards

 

The Mould

[Dookist]

Hi Mould...Cripes.... Thank you so much! I need to step back now... Clear my head and try and work out how to do this... It's not easy if you don't have any legal expertise, getting the wording right, etc... I may be able to get some help from a pro bono barrister, too, as I will need representation at the hearing..

 

You have been amazing and I feel hopeful for the first time in a very long while....

 

Thank you so very much.

 

Dookist x

[The Mould]

You are most welcome of course Dookist.

 

As regards the wording of your witness statement to oppose the Final Charging Order, you must write it out in your own words, you must try not to worry about writing it in the same way as the language of my text posted here;

 

Because your witness statement does not need to be set out in legalese text.

 

The light at the end of the tunnel always appears to be a long time in coming for those who are made to suffer in dark seas created by the actions of another, but the light always pierces through and destroys the darkness and lifts you up out from that sea of suffering and brings you out on to safe shores forevermore guarded by the light.™©

 

Kind regards

The Mould

[DonkeyB]

Bloomin’ ’eck, Mould, are you on that wacky baccy again?

[Dookist]

Awww... That's lovely.... I bet you say that to all the ladies, hahaha!

 

Mould... Do I send form N244 and request set aside, putting forward all the evidence in the application, INCLUDING the loss of my house sale? Or is that reserved for further evidence or something?

My opponent's legal team already know I queried the absence of the Part 36 Offer, although they can provide no proof of sending it, aside from a thing from their post room saying it had been sent, they say they don't have to prove anything else, other than it left their post room. Perhaps the Mitchell case will help.

 

It's the procedural stuff and the order of things which really throw me...and this is so not simple... There are all sorts of things which went wrong, going right back to the unfair hearing, procedural errors, etc..

 

This has gone from me trying to reduce my (disputed) costs and pending Charging Order to actually trying to turn things around because of what has happened since the costs award was made because my opponent has acted maliciously.

 

Which complicates things even more, and I don't want to mess up because of my ignorance of the rules...arrrgghh!!

 

Oh... what about my husband, who won't be here? Does he need to apply with form N244, or just send a letter to say that he opposes the charging order? (He is not the debtor). Does he join in regarding the loss of our sale? Eek... My head is spinning now!

 

Many thanks!

[sequenci]

Because your witness statement does not need to be set out in legalese text.

 

I don't know a single solicitor/barrister that talks like that anymore. And I know scores of them.

[Dookist]

I don't know a single solicitor/barrister that talks like that anymore. And I know scores of them.

 

But I understood what was meant by it, so that's the main thing...

[sequenci]

But I understood what was meant by it, so that's the main thing...

 

No worries.

 

For what it's worth, I deal with Charging Orders every day of my working life. Please do not undervalue what Ganymede has told you.

[The Mould]

Dookist

 

If you wish to contest the costs awarded then you will need to go down the appeal court route on this element as the lower court has already refused to set aside. On what date did the court hand down the judgment for the costs because it might be the case that you will need permission from the appeal court for extension of time to appeal that cost judgment.

 

An N244 form will not be required for the Final Charging Order hearing because that court will not deal with any application to set aside the costs judgment, so forget the N244 in this respect.

 

It is my understanding of the applicable law and rules which apply to the circumstances of your case posted here that you have the right to raise the issue of the non-service of form N251 by the Defendant and relying on the Mitchell authority of the Court of Appeal in this respect that the Defendant is not entitled to a certain amount of that £23k and that that issue in dispute can be set out in your witness statement opposing the Final Charging Order and decided on by the court in at the hearing in the proceedings to that pursuant to CPR r.73.8 (2) © & (d).

 

It is also my understanding that you and indeed your husband have a valid claim against the Defendant neighbour for recovery of the loss of the sale of your property, this claim being recognised in law pursuant to Lumley v Gye [1853] QB and as such, you could present the court in the aforesaid proceedings with an issue of an equitable set-off against his charging order application and that you can ask the court if it will consider your equitable set-off under CPR r.73.8 (2) © & (d) and if it will not consider this issue or the issue of failure to serve form N251, you can ask the court to stay these Final Charging Order proceedings pending the outcome of your appeal to the appeal court against the £23k costs and also pending the outcome of impending litigation against the Defendant neighbour to recover the loss of the sale price of your property.

 

All of the above facts in the two preceding paragraphs should be set out in your witness statement against the Defendant neighbours’ charging order application.

 

Your husband can oppose the Final Charging Order if he wishes but don’t worry if he does not because as the debt of £23k is in your name only and you jointly own the property, the Defendant will only be able to register a restriction against your beneficial interests in the property, such a restriction is not worth the paper it is written on.

 

Regardless of any others opinion of me or the material I post here, I believe that I have a full and proper understanding of all the elements of your case posted here and I have posted accordingly thereon and supported the same with the links to the leading authority on the applicable law.

 

Did you send the neighbours’ solicitors that brief letter?

 

The area where I reside is heavily populated with barristers and they all talk the same language as I, I believe it is called English.

 

Kind regards

 

The Mould

[Andyorch]

The N251 and the Part 36 offer errors are the only way to progress this matter that's why I posted the Ibbertson -v- Black Horse Ltd case.

 

Regards

 

Andy

[Dookist]

Dear Mould...

 

I will send the letter tomorrow... I need to get my head together...

This is a lot to take in.... I have a splitting headache which no amount of paracetamol will help...

 

I have been looking up torts... I always thought it was a kind of cake, but apparently, there is a thing called 'tortious interference with contract with malicious intent'...

 

Who knew?! The thing is, we have not paid the mortgage since November, and the sale would probably have been our last hope of avoiding repossession.

 

Our house went on the market in January, our buyer made the initial offer in March and the completion date was for 18th June. Everything was well advanced with our solicitors, etc..Just two days before this, our neighbour caused our buyer to withdraw, by way of threats made. Surely, if we are repossessed, we should be entitled to seek damages for the lost equity?...

 

If not, then there definitely is no justice...

 

I will let you know how things go... Wish me luck!

 

Andy many thanks... I really appreciate your help... I am trying to muddle through as best I can, and there are so many helpful, knowledgeable people on here, I am truly overwhelmed! Dookist.

 

The Mould

 

The costs order is dated 8-04-14.... I don't even know who to write to for an extension of time.... Is it the first tier or the county court where the hearing will be held...?

[The Mould]

Yes you did post that Ibbertson v Black Horse case Andy, however, that case is a County Court decision, the Court of Appeal authority in the Mitchell case as regards the same issue is a qualified judgment and Dookist (and any other in a similar situation) should only rely on that Court of Appeal judgment in the lower courts – i.e. the High Court down to County Court.

 

Appears to be a disturbing underlying tone taking place in this thread which is clearly of no use or help to Dookist whatsoever.

 

It is my understanding that the Consumer Action Group does just that, that is, take action against the financial industry on behalf of all consumers or that the Group provides assistance to help the consumers to understand the relevant law and civil procedure rules so that the consumer is furnished with sufficient information thereon which then enables the consumer to take action himself or deal with action bought against him by his creditor or some other entity.

 

Jibes, put downs, one up-man ship nonsense and kindergarten behaviour and ganging up to bully any other member of Cag only serves to debase the Group and provide entertainment for the financial industry and the legal profession.

 

Gany and Sequen as you have stated that you both have vast first-hand experience in these charging order matters, perhaps, when it would be convenient for you do so, you could both kindly guide Dookist through the process and help her to draft a witness statement to oppose the Final Charging Order.

 

Kind regards

 

The Mould

 

 

Dookist, see CPR Part 52 Appeals r.52.6 Variation of time below and read it carefully as regards appealing the costs order because you are now out of time to appeal that costs order, usually the party who wishes to appeal the decision made in a lower court has 21 days from date of that decision to appeal.

 

There is clearly a human rights issue under Art.6.1 ECHR to your appeal in addition to procedural failure (N251 element) so your appeal has the requisite merit to appeal.

 

That time limit has passed in your case and now you require the appeal courts’ permission to vary that 21 day time limit.

 

You should try and obtain professional representation for any appeal.

 

Rule 52.6 Variation of time

52.6

(1) An application to vary the time limit for filing an appeal notice must be made to the appeal court.

(2) The parties may not agree to extend any date or time limit set by—

(a) these Rules;

(b) Practice Direction 52; or

© an order of the appeal court or the lower court.

(Rule 3.1(2)(a) provides that the court may extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired).)

(Rule 3.1(2)(b) provides that the court may adjourn or bring forward a hearing.)

 

Consequences of refusal to extend time

52.6.1 If a circuit judge or a High Court judge declines to extend time for appealing against the decision of a lower court, that decision does not have the same finality as a refusal of permission to appeal. The disappointed party may (if they obtain permission) appeal against the decision that time should not be extended. See Foenander v Bond Lewis & Co [2001] EWCA Civ 759; [2002] 1 W.L.R. 525.

The practical consequences of this decision need to be borne in mind by judges dealing with applications under r.52.6(1). These consequences were spelt out by Brooke L.J. in Foenander at para.19:

"The logic of this decision is that if a circuit judge or a High Court judge sitting in an appeal court has the choice of disposing of a belated and unmeritorious appeal either by refusing to extend time for appealing or by refusing permission to appeal, he/she should bear in mind that taking the latter course will bring the appellate proceedings to an end. The adoption of the former course, on the other hand, may entail further expense and delay while a challenge is launched at a higher appeal court against the decision not to extend time for appealing."

 

Criteria to be applied on applications to extend time

52.6.2 On applications under r.52.6 to extend time for appealing after expiry of the time limit, it is necessary to have regard to the checklist in r.3.9. This is because the applicant has not complied with r.52.4(2) and, in the absence of relief, the applicant will be unable to appeal: see Sayers v Clarke Walker [2002] EWCA Civ 645 at [21]; [2002] 1 W.L.R. 3095. In cases where the arguments for granting or refusing an extension of time are otherwise evenly balanced, the court should evaluate the merits of the proposed appeal in order to form a judgment on what the applicants will be losing if time is not extended: see Sayers v Clarke Walker at [34]. In Smith v Brough [2005] EWCA Civ 261 the Court of Appeal, in the course of refusing to extend time by 39 months, stressed the importance of finality in litigation.

In Smith v Kvaerner Cementation Foundations Ltd [2006] EWCA Civ 242; [2007] 1 W.L.R. 370 the claimant was granted permission to appeal, despite his delay of four years in applying to the Court of Appeal. The paramount consideration in that case was that the claimant at trial had been denied his right under ECHR art.6 to a fair hearing before an independent and impartial tribunal. There was also a good explanation for his failure to pursue an appeal earlier.

If an application to extend time for appealing is made in time (i.e. it is made prospectively), then r.3.9 does not apply: see the reasoning of the Court of Appeal in Robert v Momentum Services Ltd [2003] EWCA Civ 299; [2003] 2 All E.R. 74.

Where, in an appeal brought under a statute, the time limit for filing the notice of appeal is fixed, not by r.52.4, but by the statute itself, the court may lack power to extend that limit under r.3.1(2)(a);

 

Kind regards

 

The Mould

[Dookist]

That would be fabulous! Feel as though I am walking through treacle at the moment....

 

Eeek! What does it all mean in layman's terms, please....

 

I have just found out that my neighbour has put his property on the market... He probably realises the seriousness of what he has done, and will now get away Scott free... I don't suppose there is anything I can do about his interference now...

[The Mould]

Put simply, it means that you have missed the 21 day time limit allowed under CPR r.52.4 (2) to a party who wishes to appeal against the judgment made against him (you in this present case Dookist).

 

So, if you wish to appeal that costs judgment of £23k you now must make an application on form N244 to the appeal court under CPR r.52.6 to request its permission to vary the time limit for filing your appeal notice against the judgment for costs and you must provide your reason(s) as to why you have left it late to appeal that judgment for costs.

 

You really must try to concentrate on what you decide to be the best course of action for you to take because the time is ticking by and you have the Final Charging Order to deal with on 18 August 2014 and that is why I have suggested that you raise the outstanding issue as regards the N251 in those proceedings which the court has the power to deal with under CPR r.73.8 © & (d).

 

The other issue as regards your claim against the neighbour for the loss of the sale contract on your property can be raised in those proceedings if you wish or you can issue a claim on form N1 against the neighbour as a separate set of proceedings and you should include a fully particularised particulars of claim with the form N1 for this claim.

 

Or, in the alternative to the above, you can make an application on form N244 to the court dealing with the Final Charging Order to request that those proceedings be stayed pending the outcome of your appeal against the costs judgment made against you.

 

Kind regards

 

The Mould

 

 

As regards your neighbours’ conduct of interfering with your contractual relationship with the intended purchasers of your property which caused you and your husband the loss of that contract sale on your property, you can issue your claim against him for a period of 6 years from the date that the purchasers were made to abandon that contract sale on your property and this is regardless of where he resides now or where he resides at any time during that 6 year limitation period.

 

Kind regards

 

The Mould

 

 

Have you decided what course of action you are going to take in any of the outstanding issues discussed here and your proprietary estoppel claim and your other claim against the neighbour for causing the loss of the sale contract on your property?

 

 

Kind regards

 

 

The Mould

[Dookist]

Dear Mould....

 

I found out yesterday that my opponent has sold my land to my next door neighbour.

 

Up until then, I was in full fighting mode and wanted to take the whole thing right back to the start, the unfairness of the trial, etc., but now I know nothing will bring back my land and it's just a case of damage limitation re the 100% success fee, which even if removed would still leave £12k that I can't pay.

 

My work as a PA to my disabled brother only pays £45 per week, so I am claiming Employment Support Allowance. I guess the bailiffs can't take my car as I need it for work....

 

There are no savings and the house was surveyed in November and valued as being worth less than we owe...(I kept the valuation, so can provide this as evidence at court).

 

As you pointed out, they can only get a restriction...

 

I have been ill with a possible ulcer, in a lot of pain and I don't want to put myself through any unnecessary extra stress by continuing to bash my head against a brick wall, as has been the case for the past year.

 

I am hoping that the pro bono help I have requested will be forthcoming... I need to step back from this and let someone else take up the argument for the sake of my health...plus, my head is fogged from all the medication I have to take for my anxiety and panic attacks.

 

If this sounds defeatist, then yes.. I do feel beaten at the moment...

 

But I definitely will give it a try regarding his interference with the house sale, even though he will have moved away by the time it comes to court... He is an extremely wealthy man, with property around the world and he will use this to avoid being brought to justice, no doubt.

 

At the moment, I just feel devastated that this long, painful struggle to retain my land has all been in vain and there is nothing I can do to turn things around.

 

Your help and advice has been invaluable, and had I joined CAG a couple of years ago, I would have been so much better informed, I am sure there would have been a different outcome...

 

The N251 and the Part 36 offer errors are the only way to progress this matter that's why I posted the Ibbertson -v- Black Horse Ltd case.

 

Regards

 

Andy

 

Many thanks, Andy..At the time the award for costs was made, my costings lawyer told me that there would probably be no point in trying to appeal re the Part 36 Offer... So now I have run out of time and will apparently need to request permission to vary the time limit on form N244 as I understand it...

[sequenci]

the Defendant will only be able to register a restriction against your beneficial interests in the property, such a restriction is not worth the paper it is written on.

 

What makes you say that? I assume you're reasonably versed in the law of equity?

 

 

 

 

The area where I reside is heavily populated with barristers and they all talk the same language as I, I believe it is called English.

 

I know several - and not a single one of them would be silly enough to pepper their writing with antiquated and archaic language - ESPECIALLY when loooking to get their message across to those who may not be from legal backgrounds. I know that embracing plain English is something that the profession as a whole has been keen to do. I guess we can thank Lord Woolf for really pioneering that.

[The Mould]

Another post here on Dookists’ thread by you sequen that again does not provide any help to Dookist whatsoever.

 

You probably believe that the writings of Shakespeare are also archaic.

Your statements towards me are not qualified and cannot be relied on, regardless of how many hundreds of solicitors or barristers that you claim to be acquainted with.

 

If you are not willing to help Dookist, then I think you ought to not post here because to date, your posts here serve only to debase the Consumer Action Group which in turn will only ensure that many, many consumers will not want to register with the Group or view here as a guest because they will associate the Group as a place to come only if you want to be bullied or put down by the site team members and other members, and no one I know would dare to knowingly subject themselves to such unwarranted behaviour.

 

The example that you are setting here is very bad for the Group.

 

The Mould