Patricia Pearl - Small Claims Procedure - A Practical Guide


An excellent guide for the layperson in how to use the County Court - a must if you are intending to start a claim.

£19.99 + £1.50 (P&P)

+ Reply to Thread
Page 1 of 2
1 2 LastLast
Results 1 to 20 of 29
  1. #1
    Basic Account Holder inabind Novitiate

    Follow Real_CAG on Twitter

    Cagger since
    Oct 2009
    Posts
    84

    Default Charging order - can I appeal?

    I had a charging order granted despite having an instalment order in place that I have been paying. It is not in default.

    Can I appeal against the charging order arguing the following:

    Section 86(1) The County Courts Act 1984:

    Where the court has made an order for payment of any sum of money by instalments, execution on the order shall not be issued until after default in payment of some instalment according to the order.

    This was further considered in the case of Mercantile Credit V Ellis in The Court of Appeal 1987. It was found that the wording of the Charging Orders Act states quite clearly that no further action could be taken without a default in payment. It should be noted, however, that in the case of Ropaigealach V Allied Irish Bank CA Nov 2001 where an instalment order is made AFTER an interim charging order has been made, a court has the jurisdiction to make a Charging Order final.

    (I included Mercantile in my objection but not the County Courts Act)


  2. #2
    Basic Account Holder rhodium78 Informative rhodium78 Informative rhodium78 Informative

    Follow Real_CAG on Twitter

    Cagger since
    Mar 2010
    Posts
    405

    Default Re: Charging order - can I appeal?

    Haven't looked into your case in detail but it depends...

    In Ropaigealach v Allied Irish Bank [2001], the judge there considered the Mercantile Credit case and came to the conclusions that:

    "There was jurisdiction to make a charging order absolute if a charging order nisi had been obtained before the instalment order had been made. It was also clear that in cases such as the instant case, where under the instalments order the debt would not be paid for many years, and where there was more reason to secure payment, there was nothing wrong in principle with the co-existence of the orders as s 1(1) of the Charging Orders Act 1979 set out. Further, when exercising its discretion under s 1(5) of the 1979 Act, the court could take all relevant circumstances, including the existence of the instalment order, into consideration. In the instant case there was no ground on which the court could interfere with the exercise of the court's discretion."

    Charging Order Nisi = Interim Charging Order

    Did you get the interim charging order BEFORE the court mandated an instalment order or afterwards?

    That will determine the likelihood of your success.


  3. #3
    Basic Account Holder inabind Novitiate

    Follow Real_CAG on Twitter

    Cagger since
    Oct 2009
    Posts
    84

    Default Re: Charging order - can I appeal?

    hey there,

    the instalment order was made on the 1st of feb and the application for the interim charging order on the 10th of feb.


  4. #4
    Basic Account Holder rhodium78 Informative rhodium78 Informative rhodium78 Informative

    Follow Real_CAG on Twitter

    Cagger since
    Mar 2010
    Posts
    405

    Default Re: Charging order - can I appeal?

    From what you have stated, you do have grounds to appeal.

    According to case law, the interim charging order should never have been granted in the first place with an installment order made which was not in default.


  5. #5
    Gold Account Holder
    Help the CAG!!
    Download our toolbar
    supasnooper Authoritative supasnooper Authoritative supasnooper Authoritative supasnooper Authoritative supasnooper Authoritative supasnooper Authoritative supasnooper Authoritative supasnooper Authoritative supasnooper Authoritative supasnooper Authoritative supasnooper Authoritative supasnooper's Avatar

    Follow Real_CAG on Twitter

    Cagger since
    Sep 2008
    Posts
    4,514

    Default Re: Charging order - can I appeal?

    A couple of questions -

    1/ What were the terms of the Installment Order ?

    2/ Did you make any payment to the creditor under the Installment Order ?



    Help us to keep on helping.
    Please consider making a donation, however small, if you have benefited from advice on the forums.
    This site is run solely on donations.

    You can make a donation HERE. Thank you.

    Any advice & opinions given by supasnooper are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability.
    Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.
    Follows
    0
    Following
    0

  6. #6
    Basic Account Holder inabind Novitiate

    Follow Real_CAG on Twitter

    Cagger since
    Oct 2009
    Posts
    84

    Default Re: Charging order - can I appeal?

    1. On the application of the defendant and the court having consideed the papers received from the parties. It is now ordered that the def pay the claimant the outstanding sum by instalments of £xx for every month the first payment to reach the claimant by xxx.
    2. Two payments before the final charging order hearing.


  7. #7
    Basic Account Holder inabind Novitiate

    Follow Real_CAG on Twitter

    Cagger since
    Oct 2009
    Posts
    84

    Default Re: Charging order - can I appeal?

    Quote Originally Posted by rhodium78 View Post
    From what you have stated, you do have grounds to appeal.

    According to case law, the interim charging order should never have been granted in the first place with an installment order made which was not in default.

    That is what I thought too. He kept saying having the charging order wont cause me hardship. Looking back I should have said it will because of the charges of the hearing and costs that will be added to the judgment debt.

    My understanding is that if they had applied to the High Court then a charging order can be made even when you are not in default. In the county courticon though this isnt possible. Should I reduce the debt to under £5k (threshold for the High Court) to make sure that they dont apply for one at the High Court since I am appealing?


  8. #8
    Basic Account Holder rhodium78 Informative rhodium78 Informative rhodium78 Informative

    Follow Real_CAG on Twitter

    Cagger since
    Mar 2010
    Posts
    405

    Default Re: Charging order - can I appeal?

    Let's rewind a second... In the hearing for a charging order nisi... was the judge aware of the fact that an installment order was made? Out of curiosity, was it a district judge or circuit judge?

    Follows
    0
    Following
    0

  9. #9
    Basic Account Holder rhodium78 Informative rhodium78 Informative rhodium78 Informative

    Follow Real_CAG on Twitter

    Cagger since
    Mar 2010
    Posts
    405

    Default Re: Charging order - can I appeal?

    Ps... 2 payments before the final charging order or the charging order nisi?


  10. #10
    Basic Account Holder inabind Novitiate

    Follow Real_CAG on Twitter

    Cagger since
    Oct 2009
    Posts
    84

    Default Re: Charging order - can I appeal?

    He was aware.

    He was a district judge.


  11. #11
    Basic Account Holder inabind Novitiate

    Follow Real_CAG on Twitter

    Cagger since
    Oct 2009
    Posts
    84

    Default Re: Charging order - can I appeal?

    Quote Originally Posted by rhodium78 View Post
    Ps... 2 payments before the final charging order or the charging order nisi?
    Not sure what you mean. final charging order hearing = charging order nisi?

    By the time the charging order was made absolute I had paid to payments under the instalment order.


  12. #12
    Basic Account Holder rhodium78 Informative rhodium78 Informative rhodium78 Informative

    Follow Real_CAG on Twitter

    Cagger since
    Mar 2010
    Posts
    405

    Default Re: Charging order - can I appeal?

    Old terminology -

    Charging order nisi = interim charging order
    Charging order absolute = final charging order

    Hmmmm.... not convinced that a district judge would err on such a point so there might be some pertinent piece of information missing here. Stranger things have happened.

    To all intents and purposes, appeal but also mention the fact that there is negative equity (if there is), etc. You can see other charging order threads for other points to appeal on.


  13. #13
    Basic Account Holder inabind Novitiate

    Follow Real_CAG on Twitter

    Cagger since
    Oct 2009
    Posts
    84

    Default Re: Charging order - can I appeal?

    With all due respect I stand to benefit nothing by twisting the truth. What I have said is exactly what happened. That is why I am asking for help because what happened defies logic to me.

    As for the negative equity position I argued it and he says is does affect me in any way. It is a risk that the creditor takes, if they fail to recover any money after the sale of the house its their problem.

    Thanks for your responses though.


  14. #14
    Basic Account Holder rhodium78 Informative rhodium78 Informative rhodium78 Informative

    Follow Real_CAG on Twitter

    Cagger since
    Mar 2010
    Posts
    405

    Default Re: Charging order - can I appeal?

    That wasn't a slight and I apologise if it was misconstrued as that. To be honest, an appeal is required and you should get more margin with a circuit judge but at least then he/she can clarify your position based on the evidence infront of him/her. I don't have the luxury of seeing the evidence that the opposing counsel has presented which is why I queried whether there was something else missing.

    Good luck and let us know how you get on.


  15. #15
    Basic Account Holder inabind Novitiate

    Follow Real_CAG on Twitter

    Cagger since
    Oct 2009
    Posts
    84

    Default Re: Charging order - can I appeal?

    Will let you know. Spending the weekend completing the n161 form


  16. #16
    Basic Account Holder meursault22 Novitiate

    Follow Real_CAG on Twitter

    Cagger since
    May 2009
    Posts
    226

    Default Re: Charging order - can I appeal?

    This same thing has happened to me. Found this information though. Is this right? I find it very worrying.


    Slapper & Kelly THE ENGLISH LEGAL SYSTEM, Tenth edition p368

    "Charging Orders.... Under the old law, the court could not make a charging order when payments due under an installment order made to secure the same sum were not in arrears. ... The Tribunals, Courts and Enforcement Act 2007 removes this restriction and enables access to charging orders in circumstances where a debtor is not yet in arrears with an installment order."
    It then goes on to say "As a safeguard, the Act allows the Lord Chancellor to set financial thresholds beneath which a court cannot make a charging order or order for sale, in order to ensure that charging orders are not used to secure payment of disproportionately small judgement debts."

    In my experience, the thresholds that have been set are so low that they are easily exceeded by adding court costs even if the original debt is only a few pounds - some protection that is for the householder! Not only that, but the judges I have encountered seem to feel that this threshold makes the precedent of Robinson v Bailey redundanticon.

    Follows
    0
    Following
    0

  17. #17
    Basic Account Holder inabind Novitiate

    Follow Real_CAG on Twitter

    Cagger since
    Oct 2009
    Posts
    84

    Default Re: Charging order - can I appeal?

    Hi mersault22,

    Sorry to hear that the same thing happened to you.

    Yep. That is also my interpretation of s93 of the 2007 Act. Decided not to appeal after all because even if I was sucessful, the Claimant could always apply for a charging order in the High Court and the fact that the instalment order was not in default wouldnt matter. This would mean more costs for me and the heartache of going to court again.

    Figured I might as well hang onto my £160 : )


  18. #18
    Basic Account Holder meursault22 Novitiate

    Follow Real_CAG on Twitter

    Cagger since
    May 2009
    Posts
    226

    Default Re: Charging order - can I appeal?

    The thing now is to try your hardest to protect yourself from an order of sale. If you're in negative equity they shouldn't even start the process but I've been through two of them now (from the same company) and they can get very expensive. I think the general idea is for them to make an obscene profit from the court costs.
    My advice is, if it happens, don't rely on a solicitor, get help here to prepare your defence, etc... and submit it by Special Delivery well within the 14 days of the date on the notification of hearing.
    Also get some advice here about sending some Terms and Conditions to show that you will also be going for costs if they don't behave reasonably. Wish I had learned about that sooner.
    Because of the mass deregulation and privatization that has happened in recent years, large companies all seem to be in a bun fight for the available money and play dirtier and dirtier.

    Follows
    0
    Following
    0

  19. #19
    Basic Account Holder rhodium78 Informative rhodium78 Informative rhodium78 Informative

    Follow Real_CAG on Twitter

    Cagger since
    Mar 2010
    Posts
    405

    Default Re: Charging order - can I appeal?

    It's not that clear cut unfortunately...

    The court must consider:

    1.) personal circumstances ot the debtor; and/or
    2.) whether any other creditor will be prejudiced by the fact that this creditor has the CO; and/or
    3.) whether it would infringe the debtors human rights and if doing so, whether ratifying the CO is necessary to protect the creditor.

    These are some of the principles to follow and if these can be argued successfully, then there is no reason not to appeal a CO. Alas, I do understand there is a lot of stress and money involved so you have to do what you feel is right for you at the time.


  20. #20
    Basic Account Holder rhodium78 Informative rhodium78 Informative rhodium78 Informative

    Follow Real_CAG on Twitter

    Cagger since
    Mar 2010
    Posts
    405

    Default Re: Charging order - can I appeal?

    To answer your question, meursault22, yes they can:

    Charging Orders Act 1979 (amended)

    s 1 ...

    [(6) Subsections (7) and ( 8 ) apply where, under a judgment or order of the High Court or a county courticon, a debtor is required to pay a sum of money by instalments.

    (7) The fact that there has been no default in payment of the instalments does not prevent a charging order from being made in respect of that sum.

    ( 8 ) But if there has been no default, the court must take that into account when considering the circumstances of the case under subsection.]



Viewing CAG on a small screen? Switch to the mobile version of the site

Reclaim the Right Ltd. - reg.05783665 in the UK reg. office:- 923 Finchley Road London NW11 7PE