I owe legal costs- Judgement Creditor charging daily interest.

[Dookist]

Hello all.... Still on the trail of the missing N251...

 

Can anyone tell me whether this should have been included in the Trial Bundle, please? I have looked all the way through this morning and it is not there.... You would think it would be included if as an important document it was served...

 

Thanks in anticipation...

[sequenci]

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

If someone came on CAG and wrote in the same way, certainly so.

 

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.

 

Please calm down.

 

I've not bullied you. What I have written is absolutely objective. And true. You are aware, for example, that an order for sale can be made where a charge has been registered with the land registry as an equitable restriction - rather than as a legal charge? Hence my question. I'm not saying that it will happen in this case, of course, far from it - as it probably won't. I just find it ironic that on one hand you champion equity, and then on the other you rubbish it. I don't think Dookist deserves any contradictions whilst they are undertaking their plight. And the fact that you rubbish Ganymedes qualified opinion is somewhat confusing in my view. No personal offence here, by the way, I firmly believe that we owe all Caggers a high degree of objectivity.

 

- Seq.

[Dookist]

Oh dear... I seem to have started WW3...

[sequenci]

Oh dear... I seem to have started WW3...

 

You really haven't. But I do think, given the circumstances, that you seek qualified advice from someone who deals with charging orders on a day-to-day basis. You could potentially seek help from your local law centre:

 

lawcentres.org.uk

 

Best wishes to all on this thread.

 

- Seq.

[Dookist]

So... I imagine that if there is no sign of form N251 in the Trial Bundle, and assuming that it should have been served both on myself AND on the court... Does it actually exist?

 

If I question this at the hearing, will the opponent's lawyers just magic the document up out of a top hat and get away with it...?

 

How can I PROVE without a doubt that the document was never served...Or if it was, and wasn't received, that it was served BEFORE the cut off date of 01-04-13?

 

Why won't the court reply to my question asking if Form N251 was received and acknowledged? I emailed over two weeks ago...

 

Can I even argue the matter if permission for an extension of time is refused? Knowing my luck, probably not.

[The Mould]

“I don’t care how many charging order proceedings you have attended, the fact that you have not encountered an equitable set-off claim in such proceedings does not render such as invalid. Your comments in this respect and on my character are not qualified and cannot and should not be relied on”.

 

Above quote reproduced from my post# 55 here as regards Gany’s wholly factually incorrect comments in her post# 50, which I clearly proved to be incorrect by the material set out in my post# 59 now reproduced below.

 

“The Court has the discretion whether or not to make a charging order, however, it may not be equitable to do so and the circumstances where it may not be equitable are far too extensive to list out here. However, The White Book does list a few such circumstances and further, see CPR Pt 73 r.78.3© & (d) below and general principles below that.

 

Rule 73.8 Further consideration of the application

73.8

(1) If any person objects to the court making a final charging order, he must—

(a) file; and

(b) serve on the applicant;

written evidence stating the grounds of his objections, not less than 7 days before the hearing.

(2) At the hearing the court may—

(a) make a final charging order confirming that the charge imposed by the interim charging order shall continue, with or without modification;

(b) discharge the interim charging order and dismiss the application;

© decide any issues in dispute between the parties, or between any of the parties and any other person who objects to the court making a final charging order; or

(d) direct a trial of any such issues, and if necessary give directions.

(3) If the court makes a final charging order which charges securities other than securities held in court, the order will include a stop notice unless the court otherwise orders.

(Section III of this Part contains provisions about stop notices.)

(4) Any order made at the hearing must be served on all the persons on whom the interim charging order was required to be served.

 

General principles

The general principles governing the exercise of the discretion to make an order may be summarised as follows:

(1) The question whether an interim order should be made final is one for the discretion of the court.

 

(2) For the purpose of the exercise of the Court's discretion there is no material difference between third party debt orders and changing orders.

 

(3) In exercising its discretion the Court must take into account all the relevant circumstances whether they arose before or after the interim order.

 

(4) The Court should exercise its discretion equitably having regard to the interests of all parties involved, including other unsecured creditors, as well as those of the judgment creditor and the judgment debtor.(The above principles, stated in Roberts Petroleum Ltd v Bernard Kenny Ltd [1982] 1 W.L.R. 301, CA are not affected by the reversal of the case by the House of Lords, [1983] 2 A.C. 192).

 

(5) The liquidation of a company, whether by resolution or by order for compulsory winding up brings into operation a statutory scheme for dealing with the company's assets and accordingly if a winding up occurs before the final order the Court will decline to make a final order (Roberts Petroleum Ltd v Bernard Kenny Ltd [1983] 2 A.C. 192, HL). The same principle would apply if an individual is made bankrupt after the interim order but before the final order.

 

(6) In Roberts Petroleum (above) it was also held that the burden of showing cause why a final order should not be made is on the debtor. However, this point was doubted in National Guild of Removers and Storers Ltd v Jones (t/a ATR Removals) [2012] EWCA Civ 216 and generally today it is not helpful to attempt to decide the issue by reference to a burden of proof.

 

(7) In Packman Lucas Ltd v Mentmore Towers Ltd [2010] EWHC 1037 (TCC), Coulson J. said at para.25 "I consider that it is potentially dangerous for a court to identify any hard and fast rules that seek to link the size of the debt with the ability to obtain a charging order or an order for sale". Neither statute nor the rules place a minimum limit on the size of the debt before a charging order can be obtained. The size of the debt is one of the factors to be taken into account in the exercise of the court's discretion. In practice the courts take a different attitude to the granting of a charging order (which, of itself, merely gives security) than to the making of an order for sale: see further the commentary to r.73.10.

 

(8) The Court has a discretion which will not be interfered with on appeal unless exercised on a wrong principle (Wicks v Shanks (1893) 67 L.T. 109).

 

(9) Where execution by writ of fi.-fa. has been stayed on terms that the defendant pays by instalments (or similarly, where the court has ordered payment by instalments pursuant to r.40.11) and where the defendant is complying and thus is not in arrears, the High Court may properly exercise discretion not to make a charging order (Mercantile Credit Co Ltd v Ellis Independent, March 17, 1987, CA). See also para.73.4.4 above.

 

(10) For the considerations which arise on an application to discharge a final order upon supervening bankruptcy see Jelle Zwemstra Ltd v Walton and Stuart [1997] C.L.Y 3002

 

So Gany, your contention that charging order proceedings are not the appropriate forum for the Court to deal with an equitable set-off claim by the Defendant/Respondent is a wholly factually incorrect contention according to CPR r.78.3.

 

For someone who claims to have attended countless charging order proceedings, one would think that you would be aware of the above rule in such proceedings.

 

Your posts here are not based on objectivity of the subject matter of this thread; the material in them relating to me is clearly intended in a disrespectful attitude towards my writing style and it is my understanding that the Group does not and will not tolerate posts which contain material of such nature. The fact that you are a site team member Sequen posting material in a disrespectful manner designed to try and debase my writing style and to cause others to have doubt as to the material contained in my posts relating to points of law, makes this situation even more disgraceful and wholly unacceptable.

 

You Sequen, and Gany have both stated that you are experienced in these charging order matters, however, as of the date hereof, Dookist remains absent of any assistance being provided from the both of you thereon.

 

So... I imagine that if there is no sign of form N251 in the Trial Bundle, and assuming that it should have been served both on myself AND on the court... Does it actually exist?

 

If I question this at the hearing, will the opponent's lawyers just magic the document up out of a top hat and get away with it...?

 

How can I PROVE without a doubt that the document was never served...Or if it was, and wasn't received, that it was served BEFORE the cut off date of 01-04-13?

 

Why won't the court reply to my question asking if Form N251 was received and acknowledged? I emailed over two weeks ago...

 

Can I even argue the matter if permission for an extension of time is refused? Knowing my luck, probably not.

 

The N251 should have been included in the bundle. The Court most probably do not have it in its bundle also.

 

You can still argue the non-service of N251 and the Defendant should be made to provide proof that he served it on you, if the Court does not have it either, then that fact will prove your case that N251 was not served on you as alleged.

 

Kind regards

 

The Mould

[Dookist]

Hi Mould... This is what I believe... I think they were in a rush to get the CFA in place before the deadline and they messed up somehow...

 

On the court transcript, the judge is speaking about the CFA and saying to counsel "whether that has also been served on the court", and counsel is scrabbling about amongst his papers but finds nothing...

 

I am wondering if I should just address the procedural error matters at the hearing... (That is if I am given permission for an extension of time...) leaving my husband to make an objection against the CO whist also mentioning the business of interference and loss of house sale...

 

Do you think that is feasible? It wouldn't be a counter claim, though, as the debt is mine alone...

 

I made an application to the pro bono centre a while ago, and am still waiting to see if a barrister will be able to help with my case and also represent me at court because of my hearing difficulties.

 

The problem is that I did not mention the interference when sending my papers for assessment, and I doubt I will be allowed to add the new evidence.

 

I will have to see how things pan out...

 

At least I have plenty to mull over whilst I wait....!

 

Hmmm... Apparently, the claim should have been issued on Form N1 which would have included a response pack.

 

All I have received is an Order for the Recovery of an Award... Form N322 (dated 02-05-14)

 

Does this sound right?

 

I was not aware that a response was required and the time limit is two weeks...

 

Oh... Cripes... It just gets worse!

[The Mould]

Dookist that court transcript clearly proves that form N251 was neither filed to the court nor served on you and you should raise this fact at the Final Charging Order hearing on 18 August 2014.

 

You do not require permission for an extension of time from the court dealing with the Final Charging Order hearing.

 

If you wish to make an application for permission to vary the time for you to file an appeal notice then you must make this application to the Court of Appeal under CPR r.52.6.

 

The neighbours’ interference with your contractual relations with the intended purchasers of your property can be raised if you wish at the Final charging Order hearing under CPR r.73.8 (2) © & (d) together with your argument that the N251 was not filed or served in time therefore the issue of the Defendants’ (neighbour) entitlement to all of the £23k is a matter that must be addressed and decided on before any restriction is granted against your beneficial interests in the property and you would also ask the court to take your interference claim against the neighbour into consideration given that he is liable for that sum of money which is substantially more than his £23k claim.

 

You should send you neighbour and his solicitors a short letter to put him on notice of your intention to sue him for the full loss of the contract sale price on your property which was agreed with the purchasers and papers ready to sign until the neighbour interfered with those contractual relations and thereby caused the purchasers to abort their purchase of your property.

 

Dookist can you please scan in all paperwork relating to this Final Charging Order and redact all personal information and I shall do my best to draft a witness statement for you based on the facts of this matter which you have posted here so that you can then amend and fill in any missing facts of information?

 

Hmmmm, earlier it appeared that someone was having a bad hair day; lol.

 

Kind regards

 

The Mould

[Dookist]

Hmmm... That was probably me... I have been pulling mine out...Gaaah!

 

Do you know if I should have received a form N1 to start this claim off? I have only just found out that a response pack should have been issued... The first I knew about the claim was on form N322, Order for the recovery of an award...!

 

So I don't need to fill form N244? So many forms... Oh and there is also a form N9D. Defence and counterclaim... Will I need that, do you know?

 

I really appreciate your kind offer to draft an argument, but I don't have scanning facilities... Only email, I'm afraid...

 

Everything conspires against me...Duh!

 

Dear Mould,

 

I am sure I could write a Witness Statement if I had a kind of template.... I know I have to dispute that the form N251 was received, and I have already tried to argue the case regarding the Part 36 Offer, and all they could say is that it left the post room by first class mail. So I don't see how they can insist on their entitlement to a success fee of 100%....

 

At least if the debt was reduced they would be less likely to direct an order for sale... I already have other debts of more than £12k.

 

I think my neighbour was irresponsible in allowing his legal costs to rise to at least 8 times the value of the land.. And I had already offered him £10k (double the market value) when he tried to sell the land to me, even though he knew it should have been mine by law....What about proportionality? He was just being greedy over a small scrap of land which houses my septic tank... Now he has arranged to sell it to another neighbour out of spite..... It is so horrible!

 

Dookist x

[The Mould]

No, the hair thing wasn’t you Dookist.

 

Dookist this charging order action by the neighbour does not require to be commenced as a claim on form N1 because there is a judgment debt in place against you of £23k and he now seeks to enforce that against you by the Final Charging Order proceedings.

 

Does that make sense to you?

 

Well, if you are going to request a variation of time to file your appeal notice against the judgment, then you will need to fill out a form N244 Application notice and file that to the Court of Appeal under CPR r.52.6.

 

Oh dear, that is a shame because I know that you need all the help and support that you can get.

Never mind the scanning then. Please post up details of the following Dookist:

 

 

1. Date of judgment for the £23k costs awarded;
   

 

 

1. Date of the neighbours’ charging order application;
    
   
2. Date of the witness statement filed and served in support of the neighbours’ charging order application;
    
   
3. The list (if any) of documents served in support of the neighbours’ charging order application;
    
   
4. The date by which the neighbour was to file & serve form N251;
    
   
5. Date of the court transcript to your withdrawn proprietary estoppel claim;
    
   
6. The paragraph number in that court transcript where the judge is asking counsel where form N251 is;
    
   
7. The date of your contract sale on your property and the date that the intended purchasers abandoned the same because of the neighbours’ interference;
    
   
8. The sale price of your property;
    
   
9. And if you can, will you please write out here, word for word, the details set out in the neighbours’ charging order application and in his witness statement (even if this witness statement is made by his solicitors).
    
   

That should keep you busy for a while and when you have provided these details, this will then enable me to draft your witness statement in opposition of the Final Charging Order based on these details and on the facts of this matter that you have posted here and I will post up that draft witness statement here for you to copy and print off and make whatever amendments that may be required.

 

Kind regards

 

The Mould

 

 

Dear Mould,

 

I am sure I could write a Witness Statement if I had a kind of template.... I know I have to dispute that the form N251 was received, and I have already tried to argue the case regarding the Part 36 Offer, and all they could say is that it left the post room by first class mail. So I don't see how they can insist on their entitlement to a success fee of 100%....

 

At least if the debt was reduced they would be less likely to direct an order for sale... I already have other debts of more than £12k.

 

I think my neighbour was irresponsible in allowing his legal costs to rise to at least 8 times the value of the land.. And I had already offered him £10k (double the market value) when he tried to sell the land to me, even though he knew it should have been mine by law....What about proportionality? He was just being greedy over a small scrap of land which houses my septic tank... Now he has arranged to sell it to another neighbour out of spite..... It is so horrible!

 

Dookist x

 

 

I do know how wrong this situation is and it is not possible for good people to take any injustice against them.

 

 

Try and provide the details requested in my post#126 and I will do my best to provide you with everything you need to defeat this so-called neighbour.

 

 

Kind regards

 

 

The Mould

[Dookist]

No, the hair thing wasn’t you Dookist.

Dookist this charging order action by the neighbour does not require to be commenced as a claim on form N1 because there is a judgment debt in place against you of £23k and he now seeks to enforce that against you by the Final Charging Order proceedings.

Does that make sense to you?

Well, if you are going to request a variation of time to file your appeal notice against the judgment, then you will need to fill out a form N244 Application notice and file that to the Court of Appeal under CPR r.52.6.

Oh dear, that is a shame because I know that you need all the help and support that you can get.

Never mind the scanning then. Please post up details of the following Dookist:

1. Date of judgment for the £23k costs awarded;
   

1. Date of the neighbours’ charging order application;
   
   
2. Date of the witness statement filed and served in support of the neighbours’ charging order application;
   
   
3. The list (if any) of documents served in support of the neighbours’ charging order application;
   
   
4. The date by which the neighbour was to file & serve form N251;
   
   
5. Date of the court transcript to your withdrawn proprietary estoppel claim;
   
   
6. The paragraph number in that court transcript where the judge is asking counsel where form N251 is;
   
   
7. The date of your contract sale on your property and the date that the intended purchasers abandoned the same because of the neighbours’ interference;
   
   
8. The sale price of your property;
   
   
9. And if you can, will you please write out here, word for word, the details set out in the neighbours’ charging order application and in his witness statement (even if this witness statement is made by his solicitors).
   
   

That should keep you busy for a while and when you have provided these details, this will then enable me to draft your witness statement in opposition of the Final Charging Order based on these details and on the facts of this matter that you have posted here and I will post up that draft witness statement here for you to copy and print off and make whatever amendments that may be required.

Kind regards

The Mould

 

 

Ok.... I hope I have this right...

 

1: CO application is dated 30-04-14.

 

2: The application (above) has a little box at the end which is a Statement of Truth, dated 30-04-14, which should have been signed by neighbours lawyers, but isn't.

 

3: The application includes a copy of my title deeds, and Form N86, Interim CO dated 16-05-14.

 

4: Form N251 had a deadline of 31-03-13 in order to comply with a change if rule regarding Success Fees. (Lawyers say they sent it on 25-03-13).

 

5: 23-07-13.

 

6: Page 77 at 2, opponents counsel mentions; "I do have a bundle of correspondence, I can try and find it" ( this is following the Judges enquiry about a CFA.

 

At 4, Judge states; "I am not going to be assessing today whatever happens, but if I am going to think about a CFA, then I will need to have that information too".

At 8, counsel replies; "Yes".

At 10, Judge states; "Whether we were told too, I think. You normally notify the court if there is a CFA, do you not?".

At 13, Counsel replies; "You do in court proceedings. I am not sure, I have to say, what the position is".

 

Then they discuss the fact that the Judge would have prevously been sitting as an Adjudicator, but because of recent rule changes, he was now presiding as a Judge, but that there were no special changes to the rules relating to the CFA, (as I understand it).

 

7: The offer for our property was made on 27-03-14. Completion was estimated as at around 18-06-14, with an exchange of contracts a few days before.

On 12-06-14, our estate agent wrote to us in an email telling us our that our buyer had withdrawn from the sale and the precise reasons for this, naming our neighbour, who had apparently set up a meeting with our buyers on 09-06-14.

 

8: An initial offer was made of £325k which rose to £365k then we accepted a final offer of £375k.

 

This is at odds with the market value of a survey which was done in November, which gave a market value of £240k because the house needs modernisation. But the purchaser was desperate to buy in the area and properties here are very rarely available, they were cash buyers, so not limited by a mortgage valuation, and decided to pay above the market value to secure their purchase.

 

9: I WILL SEND THIS AS SOON AS I CAN... GIVING SORE FINGERS A REST FIRST!

[Dookist]

Haha... I know...

 

Bless you! I can stop pulling my hair out now, then....Don't expect anything before at least Monday, though...

 

The other thing; when my husband writes to neighbour's lawyers to object against the CO, and telling them that we will pursue their client for damages, etc.. He must give reasons for his objection?

 

Such as he is not the debtor, and he has always made all of the mortgage payments... (true) ...anything else he should add, please...? I don't actually see why he should have to give a reason...

 

Seems mad!

 

I will be indebted to you (and others) eternally. X

[The Mould]

On Monday, that should just about give me sufficient time to draft the witness statement and you must not forget that your witness statement must be filed to court and served on the neighbours’ solicitors by no later than 4:30pm on Wednesday 6th August 2014!! You will need to send this to both of them by Special Delivery so that you can prove that you filed and served it.

Well, if your husband is going to object to the Final Charging Order then he must do so by way of his witness statement and if he is not going to attend that hearing, then his witness statement will most likely be disallowed.

Kind regards

The Mould

[Dookist]

My husband is not allowed to object to the CO unless he attends the hearing? He has some work in Shanghai which he can't afford to turn down. Will this have serious implications? Will the court be more likely to allow the CO if he doesn't appear and object?

 

The hearing is on the 18-08-14, so I think I have until around the 11th to serve my documents, hopefully.

 

Oh... And I have to send a form N244 to request permission for an extension of time? Do I need to give reasons...? I was told by my costings lawyer that an appeal would probably fail. I was also having hospital tests around this time and wasn't well enough to cope with it all anyway... I admit I was suffering from depression and on all kinds of medicaion and I kind of gave up at that point... I don't know if they will accept those reasons, but it is all I have by way of the truth...

 

If it's possible to scan stuff and post it, does that not work for photos? I only have an iPad with auto correct... Can you imagine the gibberish it will write when I type out the statements...? Haha!

[The Mould]

What court is the Final Charging Order being heard in, your local county Court or High Court?

 

 

Don't worry about your husband making any statement to object to the Final Charging Order.

 

 

Yes, form N244 to the Court of Appeal if you wish to request that the time limit to file your appeal notice is varied.

 

 

I am starting to draft a witness statement for you and then you can view it and make all and any changes you like, but make sure that you file it and serve it 7 days before the hearing. In this case, your witness statement is a court document and therefore, you must file it to court and serve it on the neighbours' solicitors on WEDNESDAY 6 AUGUST 2014 by no later than 4:30pm because 7 days in this respect means 7 clear days - Mon to Fri and not 7 calendar days.

 

 

Kind regards

 

 

The Mould

[The Mould]

DRAFT WITNESS STATEMENT - EXAMPLE……………..EXAMPLE……………………….EXAMPLE

MAKE ANY AND ALL CHANGES THAT YOU WISH.

In the_______________County Court (put name of court) Claim no.(put claim or case no.)

Between:

Mr______________________________(put neighbour’s name) Applicant

-and-

Mrs______________________________(put your name) Respondent

1ST WITNESS STATEMENT OF______________________________(PUT YOUR FULL NAME) FOR THE

HEARING ON 18 AUGUST 2014 OPPOSING THE APPLICATION OF ___________(PUT NEIGHBOUR’S FULL NAME) DATED _____________________________(PUT THE DATE OF HIS APPLICATION)

I, Mrs_______________________(put your full name here) of ________________________(put your full postal address here) am the Respondent in these proceedings and I make this statement in opposition of the charging order application made by __________________________(put neighbour’s name here) dated ______________________________(put date here). The facts and matters set out below are within my own personal knowledge of this matter and which I believe true to the best of my knowledge and belief. Where the contrary appears, I state the source of those facts and matters which I believe are true and I will say as follows:-

1. It is my understanding that these proceedings are subject to the provisions of the Charging Orders Act 1979 (“the 1979 Act”) and Civil Procedure Rule part 73 (“CPR Pt 73”). In relation to CPR Pt 73, I wish to make it known to this court that there are two outstanding issues which are in dispute between Mr ______________________(put neighbour’s name) and myself and I believe that this court has the power under CPR Pt 73 r.73.8 (2) © & (d) to address and decide one of these issues or give directions on this first issue and on which I invite this court to do so and I respectfully ask this court to take the other second issue into consideration before it decides whether or not to make a final charging order to confirm that the interim charging order shall continue, with or without modification. I set out both of these two issues below for this court’s consideration and decision.
   
   First issue
   
   
2. The first issue that is still live between Mr _______________________(put neighbours’ name) and myself concerns the matter of Mr _______________________(put his name again) failure to file and serve form N251 on time in the proceedings to my (withdrawn) proprietary estoppel claim to land adjacent to my property that was owned by him. It was noted by the trial judge in those proceedings at the costs stage that Mr______________(put his name again) or his solicitors acting in that matter had failed to file or serve form N251. It was not with the court or in the court’s bundle and it had not been served on me. I attach a copy of the court transcript from those proceedings where at paragraph ____________(state the paragraph number) the judge is asking counsel where form N251 is because it is not in the court’s file. That transcript is marked exhibit (“_____”_) which I respectfully invite this court to read.
   

(Dookist, you must use your initials for the exhibits, so if your name was John Smith – your first exhibit would be marked “J S 1” and your second exhibit would be “J S 2” and so on and so on)

1. As Mr ___________________________(put neighbour’s name) failed to file and serve form N251, I believe that he is not entitled to the full costs awarded of £23,000.00 and in this regard, I rely on the authority of Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537 which makes it clear to all litigants that failure to comply with a rule, practice direction or court order will no longer be tolerated by the courts. It should be noted that in the Mitchell MP case, his solicitors prepared a costs budget of £506,425.00 but failed to file and serve it on time and so the Master order that he was to be treated as having filed a costs budget comprising only the applicable court fees which substantially reduced his entitlement to any costs; Mr Mitchell MP appealed the first instance decision but the court of Appeal dismissed his appeal and upheld the first instance decision. A copy of the transcript of that Court of Appeal authority is attached to this witness statement marked exhibit “______” which I respectfully invite this court to read.
   

1. I believe that this issue of Mr ____________________________(put neighbour’s name)failure to file and serve form N251 means that, in accordance with the above-stated Court of Appeal’s authority on such failures by any litigant, he is not entitled to all of the £23,000.00 awarded to him and that this issue must be addressed and decided on before this court hands down its decision on the final charging order application on my jointly owned property and the level of security which the charge will provide to Mr _____________(put his name) as a restriction against my beneficial interests in the property. I respectfully ask this court to deal with this issue under CPR Pt 73 r.73.8 (2) © & (d) in these proceedings which would then give effect to the overriding objectives of the CPR under CPR r.1.1.
   
   

Second issue

1. The second issue in dispute between Mr ______________________________(put neighbour’s name) and myself and which I respectfully invite this court to take into consideration before it makes it decision on the final charging order application concerns the matter of my equitable set-off against Mr __________________________(put neighbour’s name) under my claim against him, which is yet to be formally adjudicated on, in relation to his wrongful interference with contractual relations between myself and the intended purchasers of my property under a contract sale that was formalised and required only signatures to be applied to the relevant paperwork, where his interference towards the purchasers of my property caused them to abandon their purchase of it.
   

1. Further, under the rule and principles of Lumley v Gye [1853] QB J73 I have recognised grounds to sue Mr___________________________(put neighbour’s name) for the loss of the full sale price of my property which amounts to £_________________(put the sale price that was agreed with the purchasers). This sum of money is substantially more than the £23,000.00 that he now claims to be fully entitled to and seeks security for from this court against my beneficial interests in my property. Although this claim has not been formerly adjudicated on, it is only a matter of time before proceedings in this matter will be issued against Mr ________________________(put neighbour’s name) for recovery of the loss of £____________(state the agreed sale price) which he caused to my husband and I by wrongful interference with the contractual relations between us and the intended purchasers. There is no doubt that Mr ______________________(put neighbour’s name) is liable for this sum of money to my husband and I and that he will be found liable for that sum of money by the court in the proceedings to that claim.
   

1. For reasons set out above, I believe that this court can deal with the first issue and that it may have the power to deal with the second issue and if that is not the case, then I believe that, until both of these issues in dispute are formerly dealt with and resolved between the parties, it would not be in the best interests of justice for this court to hand down its decision on the final charging order and I respectfully request that this court stay these proceedings until such time when those two outstanding issues have been formally resolved.
   

STATEMENT OF TRUTH

I believe that the facts stated in this 1st witness statement are true.

Signed………………………………………………………………………..this ______day of July (or August)

(YOUR PRINTED NAME IN CAPS HERE) – RESPONDENT

The above draft 1st witness statement will get you going on this matter and remember, you need 3 copies of your witness statement and 3 copies of the authorities cited above. File one copy to the court, serve one copy on the neighbours’ solicitors and keep one copy for you to refer to.

File & serve everything by Royal Mail Special Delivery – for proof of posting and receiving.

Kind regards

The Mould

[Dookist]

What court is the Final Charging Order being heard in, your local county Court or High Court?

 

 

Don't worry about your husband making any statement to object to the Final Charging Order.

 

 

Yes, form N244 to the Court of Appeal if you wish to request that the time limit to file your appeal notice is varied.

 

 

I am starting to draft a witness statement for you and then you can view it and make all and any changes you like, but make sure that you file it and serve it 7 days before the hearing. In this case, your witness statement is a court document and therefore, you must file it to court and serve it on the neighbours' solicitors on WEDNESDAY 6 AUGUST 2014 by no later than 4:30pm because 7 days in this respect means 7 clear days - Mon to Fri and not 7 calendar days.

 

 

Kind regards

 

 

The Mould

 

 

Hi Mould... It is being heard in my local County Court...Is this where I send form N244 to?

 

I didn't realise how little time I had left! Do I have to let my opponent's solicitor know about the request to the court for a variation of the time limit... And if so, do I send them a N244 as well?

 

Kind regards, Dookist..

[Dookist]

DRAFT WITNESS STATEMENT - EXAMPLE……………..EXAMPLE……………………….EXAMPLE

MAKE ANY AND ALL CHANGES THAT YOU WISH.

In the_______________County Court (put name of court) Claim no.(put claim or case no.)

Between:

Mr______________________________(put neighbour’s name) Applicant

-and-

Mrs______________________________(put your name) Respondent

1ST WITNESS STATEMENT OF______________________________(PUT YOUR FULL NAME) FOR THE

HEARING ON 18 AUGUST 2014 OPPOSING THE APPLICATION OF ___________(PUT NEIGHBOUR’S FULL NAME) DATED _____________________________(PUT THE DATE OF HIS APPLICATION)

I, Mrs_______________________(put your full name here) of ________________________(put your full postal address here) am the Respondent in these proceedings and I make this statement in opposition of the charging order application made by __________________________(put neighbour’s name here) dated ______________________________(put date here). The facts and matters set out below are within my own personal knowledge of this matter and which I believe true to the best of my knowledge and belief. Where the contrary appears, I state the source of those facts and matters which I believe are true and I will say as follows:-

1. It is my understanding that these proceedings are subject to the provisions of the Charging Orders Act 1979 (“the 1979 Act”) and Civil Procedure Rule part 73 (“CPR Pt 73”). In relation to CPR Pt 73, I wish to make it known to this court that there are two outstanding issues which are in dispute between Mr ______________________(put neighbour’s name) and myself and I believe that this court has the power under CPR Pt 73 r.73.8 (2) © & (d) to address and decide one of these issues or give directions on this first issue and on which I invite this court to do so and I respectfully ask this court to take the other second issue into consideration before it decides whether or not to make a final charging order to confirm that the interim charging order shall continue, with or without modification. I set out both of these two issues below for this court’s consideration and decision.
   
   First issue
   
   
2. The first issue that is still live between Mr _______________________(put neighbours’ name) and myself concerns the matter of Mr _______________________(put his name again) failure to file and serve form N251 on time in the proceedings to my (withdrawn) proprietary estoppel claim to land adjacent to my property that was owned by him. It was noted by the trial judge in those proceedings at the costs stage that Mr______________(put his name again) or his solicitors acting in that matter had failed to file or serve form N251. It was not with the court or in the court’s bundle and it had not been served on me. I attach a copy of the court transcript from those proceedings where at paragraph ____________(state the paragraph number) the judge is asking counsel where form N251 is because it is not in the court’s file. That transcript is marked exhibit (“_____”_) which I respectfully invite this court to read.
   

(Dookist, you must use your initials for the exhibits, so if your name was John Smith – your first exhibit would be marked “J S 1” and your second exhibit would be “J S 2” and so on and so on)

1. As Mr ___________________________(put neighbour’s name) failed to file and serve form N251, I believe that he is not entitled to the full costs awarded of £23,000.00 and in this regard, I rely on the authority of Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537 which makes it clear to all litigants that failure to comply with a rule, practice direction or court order will no longer be tolerated by the courts. It should be noted that in the Mitchell MP case, his solicitors prepared a costs budget of £506,425.00 but failed to file and serve it on time and so the Master order that he was to be treated as having filed a costs budget comprising only the applicable court fees which substantially reduced his entitlement to any costs; Mr Mitchell MP appealed the first instance decision but the court of Appeal dismissed his appeal and upheld the first instance decision. A copy of the transcript of that Court of Appeal authority is attached to this witness statement marked exhibit “______” which I respectfully invite this court to read.
   

1. I believe that this issue of Mr ____________________________(put neighbour’s name)failure to file and serve form N251 means that, in accordance with the above-stated Court of Appeal’s authority on such failures by any litigant, he is not entitled to all of the £23,000.00 awarded to him and that this issue must be addressed and decided on before this court hands down its decision on the final charging order application on my jointly owned property and the level of security which the charge will provide to Mr _____________(put his name) as a restriction against my beneficial interests in the property. I respectfully ask this court to deal with this issue under CPR Pt 73 r.73.8 (2) © & (d) in these proceedings which would then give effect to the overriding objectives of the CPR under CPR r.1.1.
   
   

Second issue

1. The second issue in dispute between Mr ______________________________(put neighbour’s name) and myself and which I respectfully invite this court to take into consideration before it makes it decision on the final charging order application concerns the matter of my equitable set-off against Mr __________________________(put neighbour’s name) under my claim against him, which is yet to be formally adjudicated on, in relation to his wrongful interference with contractual relations between myself and the intended purchasers of my property under a contract sale that was formalised and required only signatures to be applied to the relevant paperwork, where his interference towards the purchasers of my property caused them to abandon their purchase of it.
   

1. Further, under the rule and principles of Lumley v Gye [1853] QB J73 I have recognised grounds to sue Mr___________________________(put neighbour’s name) for the loss of the full sale price of my property which amounts to £_________________(put the sale price that was agreed with the purchasers). This sum of money is substantially more than the £23,000.00 that he now claims to be fully entitled to and seeks security for from this court against my beneficial interests in my property. Although this claim has not been formerly adjudicated on, it is only a matter of time before proceedings in this matter will be issued against Mr ________________________(put neighbour’s name) for recovery of the loss of £____________(state the agreed sale price) which he caused to my husband and I by wrongful interference with the contractual relations between us and the intended purchasers. There is no doubt that Mr ______________________(put neighbour’s name) is liable for this sum of money to my husband and I and that he will be found liable for that sum of money by the court in the proceedings to that claim.
   

1. For reasons set out above, I believe that this court can deal with the first issue and that it may have the power to deal with the second issue and if that is not the case, then I believe that, until both of these issues in dispute are formerly dealt with and resolved between the parties, it would not be in the best interests of justice for this court to hand down its decision on the final charging order and I respectfully request that this court stay these proceedings until such time when those two outstanding issues have been formally resolved.
   

STATEMENT OF TRUTH

I believe that the facts stated in this 1st witness statement are true.

Signed………………………………………………………………………..this ______day of July (or August)

(YOUR PRINTED NAME IN CAPS HERE) – RESPONDENT

The above draft 1st witness statement will get you going on this matter and remember, you need 3 copies of your witness statement and 3 copies of the authorities cited above. File one copy to the court, serve one copy on the neighbours’ solicitors and keep one copy for you to refer to.

File & serve everything by Royal Mail Special Delivery – for proof of posting and receiving.

Kind regards

The Mould

 

 

Wow.... That's amazing! Thank you so much.... I really must get busy.... I have arthritic fingers... I hope they will hold out whilst I put this all down...

 

I will post back in a bit with some replies to the points you asked for in a previous post;

 

Kind regards,

 

Dookist. X

[The Mould]

Send your form N244 to the Court of Appeal Royal Courts of Justice London, you can google that and get the full postal address.

In form N244, you should be asking the court for relief from sanctions under CPR r.3.9 and for variation of time to file your appeal notice under CPR r.52.6. Your application will need to be supported with evidence, so you need to state that the neighbour did not file and serve the N251 in time and attach a copy of the court transcript for that judgment which clearly shows that the trial judge did not have a copy of the N251 in the court bundle and attach a copy of the transcript from the court of Appeal authority in the Mitchell MP case (the link to that is posted here on your thread) and that you rely on this authority for your appeal in respect of non-service of form N251by the neighbour or his solicitors.

You do not need to give your opponent or his solicitors a copy of your N244, but send them a brief notice of your intentions of your application (N244) to the appeal court for variation of the time limit to file your appeal notice against the judgment.

Kind regards

The Mould

[Dookist]

Send your form N244 to the Court of Appeal Royal Courts of Justice London, you can google that and get the full postal address.

In form N244, you should be asking the court for relief from sanctions under CPR r.3.9 and for variation of time to file your appeal notice under CPR r.52.6. Your application will need to be supported with evidence, so you need to state that the neighbour did not file and serve the N251 in time and attach a copy of the court transcript for that judgment which clearly shows that the trial judge did not have a copy of the N251 in the court bundle and attach a copy of the transcript from the court of Appeal authority in the Mitchell MP case (the link to that is posted here on your thread) and that you rely on this authority for your appeal in respect of non-service of form N251by the neighbour or his solicitors.

You do not need to give your opponent or his solicitors a copy of your N244, but send them a brief notice of your intentions of your application (N244) to the appeal court for variation of the time limit to file your appeal notice against the judgment.

Kind regards

The Mould

 

 

Thank you, Mould!

[Dookist]

Hi Mould.....

 

Did you see that I have replied to questions 1-8?

 

Now for Q9... This is my opponent's Application for a CO and witness statement, or Statement Of Truth as it appears here, which I note is not signed.

 

It is headed Application for Charging Order on Land Property...

 

His name (Claimant) vs My name (Defendant).... It has the wrong County Court address, however they are aware that the venue has changed to my local Court. It also has no claim number on it....

 

The claimant (the "Judgement Creditor") applies for an order imposing a charge on the interest of the Defendant (the "Judgement Debtor") in the land or property mentioned below to secure payment of the amount owing under the Costs Order awarded by the Property Chamber, Land Registration First Tier Tribunal on 8 April 2014 under reference number ************

 

 

 

1. The Judgement Debtor is (my name and address)

 

 

 

2. The Judgement or Order required the Judgement Debtor to pay £23,126.60. The amount now owing, including costs and interest, is £23,227.44

 

The Judgement or Order did not provide for payments by instalments.

 

 

 

3. The land or property. The address of the land or property upon which it is sought to impose a charge is (my address), the title to which is registered at HM Land Registry under title no ********

 

An Office Copy of the Land entities for this title is attached.

 

 

 

4. Judgement Debtor's interest in the land or property.

 

The Judgement Debtor is Joint Owner

 

This is shown by the Office Copy Land Registry entries attached.

 

 

 

5. Other creditors.

 

The Judgement creditor does not know of any other creditor of the Judgement Creditor.

 

 

 

6. Other persons to be served

 

The following persons have, or may have an interest in the property as detailed on the attached Office Copy Entries:

 

(My husband's name and address).

 

(Our mortgage lender's name and address).

 

 

 

7. Further information.

 

The Judgement Creditor asks the Court to take account of the following information

 

N/A

 

 

 

8. Sources of information (comp,ete only where the Judgement Creditor is a firm or a company or other corporation).

 

The information in this application is given by me after making proper enquiries of all persons within the Judgement Creditor's organisation who might have knowledge of the facts.

 

 

 

 

STATEMENT OF TRUTH

 

*The Judgement Creditor believes that the facts stated in this application form are true.

 

*I am duly authorised by the Judgement Creditor to sign this statement.

 

Signed. (The form has not been signed)

 

Dated 30th April 2014

* Delete as appropriate

Full name (******** ***** ****)

Name of Judgement Creditor's Solicitor's firm ***** ********

Position or office held: Litigation paralegal

(If signing on behalf of a firm or company)

 

There follows the applicants solicitors address and re fence numbers, etc.

 

 

Phew! I hope this is helpful...

 

 

Kind regards,

 

Dookist.

[The Mould]

Thank you Dookist

As regards the charging order application not being signed by that litigation paralegal, the application is not verified and therefore invalid.

Is there a separate witness statement to the charging order application and if yes, is that verified by a statement of truth and signed or not?

I now set out below the following CPR and Practice Direction rules which have not been complied with by the judgment creditor which means that his charging order application must be struck out and you must bring these facts to the judge’s attention.

The judgment creditor has not complied with CPR Part 22 rr.22.1 & 22.2, Practice Direction 22 paragraph 22 1.4 & paragraph 22 3.1, CPR Part 73 r.73.3 (4) in relation to his application for a charging order and the Court of Appeal in Mitchell MP has made it very clear that any litigant who fails to comply with any rule, practice direction or court order then such failures are to not be tolerated anymore and that the courts are to take a robust stance to enforce compliance with rules, practice directions and orders under CPR Part 3 r.3.9 to ensure that the Jackson reforms of the CPR are given their required effect and in respect of these failures by the represented judgment creditor it should be noted that CPR Part 3 r.3.8 states that sanctions have effect unless the defaulting party obtains relief and that the represented judgment creditor has not made any application to this court under CPR Part 3 r.3.9 in relation to his said failures, therefore, pursuant to the authority of Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537 on a party’s failure to comply with a rule, practice direction or order, this court must strike out the judgment creditors’ charging order application for non-compliance of those said mandatory rules and practice direction affecting his application.

Dookist, you must state the above paragraph in your 1st witness statement that I drafted for you and the court must strike out the judgment creditors’ charging order application because of those failures.

OK, does that make sense to you?

I will post up the relevant CPR rules and practice direction paragraphs shortly for you to print off x 3 copies, one for court, one for judgment creditor and one copy for you to refer to at that hearing.

Kind regards

The Mould

[caro]

Dookist - is the WS provided by mould correct?

 

Although this claim has not been formerly adjudicated on, it is only a matter of time before proceedings in this matter will be issued against Mr ________________________( put neighbour’s name) for recovery of the loss of £____________(state the agreed sale price) which he caused to my husband and I by wrongful interference with the contractual relations between us and the intended purchasers

 

If this is correct I would strongly advise that you seek professional advice before making a decision. This will not be a simple case and you need to consider the further costs.

[Dookist]

Thank you Dookist

As regards the charging order application not being signed by that litigation paralegal, the application is not verified and therefore invalid.

Is there a separate witness statement to the charging order application and if yes, is that verified by a statement of truth and signed or not?

I now set out below the following CPR and Practice Direction rules which have not been complied with by the judgment creditor which means that his charging order application must be struck out and you must bring these facts to the judge’s attention.

The judgment creditor has not complied with CPR Part 22 rr.22.1 & 22.2, Practice Direction 22 paragraph 22 1.4 & paragraph 22 3.1, CPR Part 73 r.73.3 (4) in relation to his application for a charging order and the Court of Appeal in Mitchell MP has made it very clear that any litigant who fails to comply with any rule, practice direction or court order then such failures are to not be tolerated anymore and that the courts are to take a robust stance to enforce compliance with rules, practice directions and orders under CPR Part 3 r.3.9 to ensure that the Jackson reforms of the CPR are given their required effect and in respect of these failures by the represented judgment creditor it should be noted that CPR Part 3 r.3.8 states that sanctions have effect unless the defaulting party obtains relief and that the represented judgment creditor has not made any application to this court under CPR Part 3 r.3.9 in relation to his said failures, therefore, pursuant to the authority of Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537 on a party’s failure to comply with a rule, practice direction or order, this court must strike out the judgment creditors’ charging order application for non-compliance of those said mandatory rules and practice direction affecting his application.

Dookist, you must state the above paragraph in your 1st witness statement that I drafted for you and the court must strike out the judgment creditors’ charging order application because of those failures.

OK, does that make sense to you?

I will post up the relevant CPR rules and practice direction paragraphs shortly for you to print off x 3 copies, one for court, one for judgment creditor and one copy for you to refer to at that hearing.

Kind regards

The Mould

 

 

Yes... I kind of understand it... I will try my best!

 

I can't find anything that has been signed... What a shower this firm is... No wonder I haven't received vital stuff... They are totally incompetent....

 

As for the interference.... I took out legal expenses insurance some months before the neighbour scuppered our sale... I wonder if this new element can be financed via this, or would the insurer say it is 'ongoing'? You know how they like to wriggle out of things....

 

Pffft! So now the court should strike out... ?!

 

This just gets more complicated by the hour.... Regards, Dookist.

[Dookist]

Dookist - is the WS provided by mould correct?

 

Although this claim has not been formerly adjudicated on, it is only a matter of time before proceedings in this matter will be issued against Mr ________________________( put neighbour’s name) for recovery of the loss of £____________(state the agreed sale price) which he caused to my husband and I by wrongful interference with the contractual relations between us and the intended purchasers

 

If this is correct I would strongly advise that you seek professional advice before making a decision. This will not be a simple case and you need to consider the further costs.

 

Yes... Obviously the costs are paramount, but I am wondering if my legal expenses insurance, which was taken out prior to the event, would cover it.... Regards, Dookist.