Unfortunately I think it leaves you in a weak position, since these are all arguments that should have been raised at the time that a decision was made on costs. If they were raised at that time then presumably the judge already took them into account. It is going to be incredibly difficult to challenge anything to do with the costs judgment at this stage - civil procedure does not allow decisions to be re-opened or re-examined outside of following the formal appeal process, the general rule is that you have to bring forward every possible argument you might want to make at the time the decision is made.

 

My honest view is that rather than focusing too much energy on this hearing you may be better off thinking holistically about where a charging order would take you and where you go from here - particularly whether you want to issue a new claim against this person (I'm not sure this would be possible but it is worth examining the possibility in a lot of detail) and whether you have a potential way of dealing with this 23k debt.

Such as the fact he did not file his costs budget until 4:30 the day before the trial? Is that non compliance under the new rules? (CPR 3.14)

The judge had no idea what the costs were until my opponent's counsel mentioned them.... I have it all on the court transcript.

Isn't there something which states that unless costs are filed at least 7 days before a hearing, then only court costs can be claimed?

Hmmmm....

I have done nothing wrong...

During the course of this dispute my neighbour has resorted to lies, bribery, forgery, libel, threats, damage to property, interference with witness... Etc.. All of which I can prove...

So why am I the one being prosecuted...?

Where is the justice?!

Hi Dodgeball....

 

 

It is very difficult...

 

Of course one must not be seen to be challenging Judgement... Even if you feel, as I do, the judgement was biased and unfair... And I don't know where that leaves me.

 

Going right back to the start, the judge made a prejudicial remark to me prior to trial, which led me to believe he would go against me. The next day, when the audio loop wasn't working, the judge refused to adjourn. He then went on to ignore CPR rules, which lead to some serious procedural errors being made.

 

Every step of the way there seems to have been gross unfairness... and because of this, I have to go to court to fight a charging order and be left with huge debts...

 

I don't know any other way to argue my case than by challenging judgement... (If this is what I am doing).

 

Perhaps the County Court is the wrong place to do it, but I have tried very hard, especially in challenging the non receipt of the Part 36 Offer, but have been told my opponent's response has to be the last word on the subject, and his lawyer has stated that the documents were sent... so that's that, then?! I just have to accept they were sent, even though they cannot prove that they were? Even though the court seems to be missing these documents also?! Even though there was a deadline, which it is very likely they were unable to meet?!

 

For instance, I found out only at the weekend that my opponent's Statement of Truth has not been signed, which makes it invalid, apparently. I wasn't aware of this rule...

 

Yes, its a huge mess, but I don't have the means to go to the Court of Appeal...

 

And I don't know whether I have the strength to take more of the same, as I have multiple health problems.

 

I think I should just say what I think at this hearing and then try and pick up the pieces and get on with my life... Three years of stress is enough.

 

Thank you for your message... I really do appreciate everyone's opinion on this.

 

 

Regards, Dookist.

Yes i think others have clarified what i meant to say, simply the hearing for the CO is not the place to challenge the judgement.

As usual Mr Mould , although well meaning has the procedure completely wrong. or as he would say, he doth err.

Any news on this one Dookist?

I'm also hopeful for some news on this, reading the thread it's impossible not to feel considerable sympathy for the OP. Having said that, I really hope The Mould's frankly bizarre advice was given the weight it merited and the OP was able to make some headway.

Dear Doookist

I hope you have success in fighting your injustice.I hope you are able to continue with you fight.I found lots of similarities with our own experience.There is very little in the way of legal help for cases like this and some very poor solocitors to find help and are keen to charge top whack and take your money. t hen when you run out they don't want to know after they have bled you dry. Like you my partner and I have had 7 years of similar exoerience.We had to accept a settlement offer because of the mental stresses.Contenplating suicide rather than face another day of injustice and lies in the court room.Our insurers would not pay out and our legal rep failed to apply for payment from them in a reasonable time leaving the claiment to apply to court for our non payment. We lost out by hundred thousands,lost the land we legally owned. Our oponent failure to disclose information that he knew would have likely made his claim invalid.This I discovered after we had come to the end of our sanity and money needed to continue on and had agrred settlement. like you we had charges put on our property with out our notice by the court.Threatened with bankruptcy if we didn't pay his court costs.I could go on.You are so right when you say you have done nothing wrong just as our crime was to own property he wanted (and through his lies he got) to build half million pound houses on.NO JUSTICE ONLY LAW FOR THE HAVES. NOTHING FOR THE HAVE NOTS.

Dear Doookist

I hope you have success in fighting your injustice.I hope you are able to continue with you fight.I found lots of similarities with our own experience.There is very little in the way of legal help for cases like this and some very poor solocitors to find help and are keen to charge top whack and take your money. t hen when you run out they don't want to know after they have bled you dry. Like you my partner and I have had 7 years of similar exoerience.We had to accept a settlement offer because of the mental stresses.Contenplating suicide rather than face another day of injustice and lies in the court room.Our insurers would not pay out and our legal rep failed to apply for payment from them in a reasonable time leaving the claiment to apply to court for our non payment. We lost out by hundred thousands,lost the land we legally owned. Our oponent failure to disclose information that he knew would have likely made his claim invalid.This I discovered after we had come to the end of our sanity and money needed to continue on and had agrred settlement. like you we had charges put on our property with out our notice by the court.Threatened with bankruptcy if we didn't pay his court costs.I could go on.You are so right when you say you have done nothing wrong just as our crime was to own property he wanted (and through his lies he got) to build half million pound houses on.NO JUSTICE ONLY LAW FOR THE HAVES. NOTHING FOR THE HAVE NOTS.

Dear Pearlybabe... I am so sorry to hear about your problems... But yes... It is exactly that... Justice is only for the rich... I have found such bias from people who should know better... Judges who are supposed to make allowances when you are a LIP, but instead take advantage of your lack of legal expertise... My opponent also had an invalid claim... the judge would have been aware all along, but just bent the rules anyway...The systems stinks to high heaven, it really does... I am still struggling to obtain justice, but it is very soul destroying...As you say, it just sends you half crazy in the end I am taking medication to sleep... Suffering severe anxiety... Sometimes it feels as though you have a choice between getting justice or preserving what is left of your sanity... There have been so many procedural errors here that I can't even begin to list them because my heads spins with it all... The stress is terrible.

Having said that, I have met a wonderful person on here who has been an absolute Godsend, and without whom I would most likely have lost my case by now... He is extremely knowledgeable and has already helped get the case adjourned... Something I thought would never happen... So... There is a little light at the end of the tunnel for me at least... I wish you well and can only empathise at your plight... It's a very sorry situation when you have been wronged but have no money to fight for justice... I hope that you are able to put this awful thing behind you one day... Life is very short after all.... Nil desperandum... What comes around goes around, they say... Take care! Dookist xxxx

Hi, so did you get the DC hearing adjourned? On what basis?

Hi Dookist, any news or updates?

Hi Dookist, any news or updates?

It would be nice to hear how things are going.

Hello Caggers…

Just an update of this long and stressful legal saga… Some of you will have heard the first bit, but I am stuck with a new problem (please see title) and I am hoping that someone will be able to gel me, please...

Here goes… deep breath….

My problems started a few years ago when I was involved with a neighbour over a land dispute.

To cut a very long story short (ish), the small strip of land formed part of my garden and was given to me 12 years ago by a previous landowner, who sadly met with a fatal accident just before legal transfer took place.

However having occupied the land for more than 10 years, I made an application to Land Registry in order to register it in my name.

But the new landowner, a neighbour, objected to my application, (despite never having set foot on it), so the matter went to court.

On the day of the trial, the audio loop I had requested was not working at all, (I think it was the wrong sort) but the Judge refused to adjourn, so as a Litigant in Person, who was also very deaf, I tried to participate as best I could.

It was difficult, and I missed a lot of the witness statements, etc., and only on receiving a court transcript after the hearing, did I understand what was said.

So when it came to being cross examined, several hours into the first day of the trial, I became confused with the line of questioning. I became stressed and was having heart palpitations (which I take medicine for) and I panicked and decided to withdraw from the trial, and my neighbour was awarded his very substantial legal costs.

You will probably say that I did not have a fair hearing and I would agree, but there is nothing I can do about it.

I tried immediately after the trial to set aside, after finding that there had been several very serious, if not fatal procedural errors, however, the Judge was having none of it, (unsurprisingly, as I had accused him of bias) and barring going to the Court of Appeal, (which I couldn't afford to do at that time), I am stuck with this situation.

I knew I would have to sell my home in order to pay the costs, so we put our house on the market in January 2014 and secured a buyer in March.

Meanwhile, my neighbour's solicitors had made an application for an Interim Charging Order and a hearing was set for some months ahead, in July. (This was to allow my husband whom was contracted to work abroad to attend).

However, as soon as we were about to exchange contracts with the purchaser, in June, I had a call from my estate agent, saying that our buyer had pulled out due to being threatened by my neighbour… he had apparently told them that my septic tank leaked onto his land (untrue) and he would pursue them for damages if they went ahead with the purchase.

I have all the evidence of what was said, so intended to bring a counterclaim at the hearing for the final Changing Order because I was now left with no way of paying the debt before the hearing.

I sent a Letter before Claim to the neighbour, telling him I intended to make a counterclaim relating to tort of unlawful interference with a contract and I made the application to the court also and this was enough to lead to an adjournment of the hearing for the Final Charging Order.

Unfortunately, I made the fatal mistake of not having the matter referred to a higher court. I only found out at the hearing that my claim could not be adjudicated on at County Court level due to the amount. (375k), so the Charge against my property by way of a Form K restriction on our house, was made final on November 3rd 2014.

Apologies for the length of this… but sometimes a little background to the case helps…

The following is the part I need help with, please;

Having secured a Final Charging Order on 3rd November, the neighbour's solicitor then made a without notice application to vary the original Judgement Order on 4th December, resulting in a Judgement Order dated 8th December.

Why? Any solicitor worth his salt would be fully aware of the standard text of a form K restriction and would have had plenty of time to alter the text to suit before the Judgement was made final.

The new (without notification) application sought deliberately to exclude me, stating;

"This application to be considered by the court without notice of it to any other party on the basis that the overriding objective is best furthered by doing so. If the other party became aware of this application there is a substantial risk that even the "apparent" security offered by the charging order referred to would be lost".

Why did the court agree to this?

This was served on me by normal post on 6th January… too late to appeal.

On the application, they stated that the standard text of a form K Land Registry restriction did not provide enough security, so applied for the text to be modified to give their client a better chance if recovering the debt, in effect changing a standard restriction, in which notification to the creditor is only necessary AFTER the sale of the property, to a situation where I must now notify him two weeks BEFORE transfer.

I believe this to be unlawful as it does not comply with CPR r. 3.1 (7) due to the fact that a sealed (perfected) Judgement Order can only be varied or revoked if (a) There has been a material change of circumstances since the order was made, and (b) The facts on which the original decision was made were (innocently or otherwise) misstated.

And even then, surely a variation of an order must be made via the correct appeals procedure?

I have not had anything from Land registry to say that the standard text has been modified, nor has my husband who is co-mortgagee, so entitled to be notified of this change. Neither did the creditor's solicitor inform my husband of their application. This can't be right, can it?

Please, if anyone can help me with my application to set this aside, I would be so grateful.

Dookist.

Oh dear, very sorry to hear this, I will leave a message for the site team for you.

Hi

Sorry to hear about this.

I'm not totally clear on what exactly the other side are asking for on their latest application. Is it feasible to type out exactly what the other side have asked for on their application notice, or perhaps post up a scan with personal information removed? How are they asking for the form K restriction to be changed?

I think the court does have the power to do this. CPR 3.1 (7) says 'A power of the court under these Rules to make an order includes a power to vary or revoke the order.'. If they are applying to change the order that wouldn't be treated as an appeal, although you could legitimately ask why it wasn't done like that in the first place.

Threads merged...please do not start new threads on the same case.

Regards

Andy

They have changed the standard text to give their client more security… a normal restriction is worded so that you only need inform the creditor after the house is sold, with this new wording, I have to inform the creditor two weeks prior to completion.

But I believe a Judgement can only be varied in certain circumstances.. a, where there has been a material change of circumstances since the order was made, or b, where the facts on the original order were misstated… the slip rule? Neither of these is relevant.

See Tibbles vs. TIG plc (2012) EWCA Civ 518 in the Court of Appeal.

How did that happen?

Re: Without notice Judgement Order

Hello again…

I just came across this on another site… it would appear the co-mortgagee would need to be informed of the application, too as he is affected by the new Judgement Order… Can anyone comment on this, please?

I have had nothing from Land registry about the new non standard text for Form K Restriction which has been ordered...

Cripes...it's a minefield!!

Re: Completion of house sale with restrictions, solicitors saying debts need to be settled

In the case of jointly owned property, if only 1 of the owners owes a debt, only a restriction can be entered .

This is a K restriction which has specific wording.

Of course the creditor can ask the LR to use different wording so to stop sale without payment,

but the LR is not likely to agree due to the rights of the other co owner.

What usually happens is the purchasers Sol will tell the LR that a disposition has taken place and the creditor has been notified.

The LR will not insist that the creditors permission is needed.

Unfortunately many solicitors don't know this.

This is highly irregular.

Were you and your husband joint Defendants to the original Court claim? I find it strange that an Equitable Charge wasn'tregistered instead.

Hello!! No… Just me… my husband wouldn't get involved in my dispute with the neighbour… it's a restriction because I am the Judgement Debtor...

Hi again, Ganymede…

I am thinking that the creditor's solicitor has made a serious mistake by not notifying my husband of the application to vary the original Judgement Order, because as joint mortgagee, he is affected by a charge on the property.

Thanks, Dookist.

Hmmm…. I have found this. Very interesting!

The growth in personal debt, together with property prices, has meant that charging orders have become a popular debt recovery tool. A creditor obtains a judgment against a debtor and then a charging order on the debtor’s property. A number of creditors, particularly in the finance and

debt purchase sectors, having converted an unsecured debt to one with some security, sit back and wait for the debtor to pay the debt off as and when the debtor tries to sell the property. Unfortunately, sitting back and waiting for payment carries a number of risks:

A mortgagee with an earlier charge on the property might repossess and sell the property at a time when there is insufficient equity in the property to pay all or even part of the debt to the creditor.

Property prices might go down, wiping out any equity in the property. If the original judgment does not attract interest – as could be the case for debts less than £5,000 or given in proceedings relating to the Consumer Credit Act 1974 – the value of the debt will be eroded over time by inflation.

Some creditors will perhaps apply for an order to sell the property rather than wait and take the risks.

However there is another, more fundamental, risk which creditors are beginning to come across in respect of charging orders obtained after April 2003. Where a debtor owns property with another person, for example husband and wife, the debtor and the other person can, despite the charging order, easily sell the property and pay nothing to the creditor.

Before April 2003

Once a charging order was obtained against a debtor over his interest in a property, whether he owned it solely or jointly, the charging order was registered as a caution at the Land Registry. This meant that the creditor or his solicitors would get 14 days’ notice from the Land Registry that the debtor and other

owner or owners were trying to get rid of the caution, probably with the aim of selling the property.

The fact that such notice had to be given meant that a debtor knew he could not sell the property before the creditor knew about it and took steps to prevent the sale. So the debtor would usually pay the creditor before selling the property.

Cautions which were registered prior to April 2003 still remain effective and the creditor will get 14 days’ notice of any attempt to get rid of the caution.

April 2003 and afterwards

The Land Registration Act 2002 (LRA) and Land Registration Rules 2003 (LRR) introduced significant changes to land registration procedures. Cautions were no longer to be used. Instead when a creditor obtained a charging order against a debtor:

If the property was solely owned by the debtor, or all owners of the property were debtors, for example husband and wife owning the property jointly and being joint debtors, then an ‘agreed

notice’ was to be filed at the Land Registry by the creditor. Effectively this was almost as good as

having a mortgage. The debtor could not realistically sell the property without repaying the debt to the creditor.

However, if the property was jointly owned by the debtor with other nondebtors, for example husband and wife owning the property and only one of them being the actual debtor, the creditor was not entitled to enter an agreed notice. Instead the creditor could only file a ‘restriction’ at the Land Registry in the

following terms: “No disposition of the registered estate is to be registered without a certificate signed by the applicant for registration or his conveyancer that written notice of the disposition was given to creditor...] being the person with the benefit of an interim/final charging order on the beneficial interest of [name of... debtor].”

This restriction was, and remains, practically useless.

The effect of the restriction

The debtor and his joint owner’s freedom to sell the property is not affected by such a restriction. They could sell the property as if there was no charging order against the debtor. All that was required was that the new buyers or their solicitor write to the creditor informing them that they now owned the property and then confirm to the Land Registry that they had given that notice. Then the buyers could register the property with no further complications. The creditor, who is sitting back, waiting to get paid, instead just receives a letter confirming that a sale has already taken place, typically a week or two after

the sale so there is little they can do to get the debt paid. In theory the creditor could apply for a freezing order against the debtor to try and obtain the cash from the sale proceeds. However, most creditors will

never make such an application:

The cost of applying for such a freezing order would run into thousands of pounds.

The debtor might have spent the cash from the sale of the property before the freezing order was obtained, so there is little, if anything, for the freezing order to bite on.

An effective restriction

A restriction worded as follows would provide a creditor with sufficient protection: “No disposition of the

registered estate is to be completed by registration without a certificate signed by [name the creditor with the benefit of the charging order and their address], being the person with the benefit of an interim/final charging order on the beneficial interest of [name of judgment debtor], or his solicitor that he was given written notice of the disposition at least 14 days prior to the disposition or without an order of the court which granted the interim/final charging order.”

If the wording suggested above were to be allowed, a creditor would have the right to be notified before a sale. The fact that such notice has to be given would mean that a debtor will know he cannot sell the property before the creditor finds out about the potential sale – and of course takes steps to prevent the sale until the debt is paid.

So the debtor will pay the creditor before selling the property. Perhaps at some stage, the LRA will

be amended to allow such an effectively worded restriction. In the meantime, a creditor which obtains a charging order against a debtor who owns property jointly could try to persuade the Land Registry to allow the more effectively worded restriction set out above. If that attempt fails then the creditor could apply to the court for an order that the Land Registry must allow that wording.

Application to the Land Registry

The Land Registry may approve an application to allow a restriction in non-standard wording if it appears:

That the terms of the proposed restriction are reasonable, and That applying the proposed restriction would be straightforward, and not place an unreasonable burden on him. In our view, the Land Registry should allow a restriction which actually gives some protection to creditors. However,

we have yet to make such an application and suspect that the Land Registry will not readily allow such non-standard wording.

Applications to the court

If the Land Registry refuses to allow a non-standard word restriction, then a creditor may wish to consider making an application to the court. Inevitably there are risks with this:

Creditors should bear in mind that if the application is unsuccessful then they will have wasted the costs of making the application.

So far as we can ascertain, an application along the lines suggested has not yet been made. A court may adopt a restrictive view and state that a creditor may have nothing other than the standard-worded restriction set out in the LRA.

Conclusion

The current protection afforded to creditors who have a charging order on property owned jointly by a debtor with others is useless.

Unless the creditor can persuade the Land Registry or the courts to allow a more effectively worded restriction, the creditor must look at other ways of recovering the debt.

Hi again, Ganymede…

 

I am thinking that the creditor's solicitor has made a serious mistake by not notifying my husband of the application to vary the original Judgement Order, because as joint mortgagee, he is affected by a charge on the property.

 

Thanks, Dookist.

Unfortunately as your husband was not a party to the Court claim then the application has nothing to do with him and cannot beserved with a copy.

Did the Court amend the restriction in the end?

Yes… Just 4 days after the application was made… very quick! Wouldn't they have had to request a change of wording from Land Registry first? Hmmm...

Yes… Just 4 days after the application was made… very quick! Wouldn't they have had to request a change of wording from Land Registry first? Hmmm...

No. The Land Registry do what they're told by the Court, not the other way around.

Ok…so I will need to find out whether the creditor's solicitor followed correct procedure, then. Many thanks!