Mrs. E. Blackadder, you've got that right. It's virtually impossible to make a complaint, and if you manage, it's abosolutely impossible for the complaint to come out in your favour, and don't they all know it! In my case, it just cost me loads of extra money. The message from the judiciary is loud and clear. If you try to complain about blatant bias and miscarriage of justice, it will only cost you more.

Sounds familiar!! I thought it was my imagination… I was stitched up like a kipper by the biased district judges!!

This is all 100% true!

Does that mean there is no legal obligation to settle the debt?

As Sequenci points out, the LR PG 76 (Section 5 para 3) states that the Restriction will become overreached and automatically removed without application if the property is sold for value by the owners to a third party.

 

You need to get your Solicitor to earn his money by pointing this out to the buyers Solicitor that this will be the case. There are instances now arising where people are selling up without discharging the CO simply because it is a choice as also pointed out by the Land Registry in Landnet 19 (pages 16/17);

 

“Although generally a claim against an equitable share cannot be protected by restriction, the Land Registration Act 2002 expressly provides that for the purposes of entering such a restriction, Land Registry may treat someone entitled to the benefit of a charging order relating to an interest under a trust as if they had a claim against the trust property itself. This does not however entitle the judgment creditor to enter a restriction that would interfere with the ability of the trustees to overreach interests under the trust. We regularly have to reject on this basis applications for restrictions where judgment creditors have sought to prevent the registration of any disposition without their consent. The strongest form of protection that we are likely to approve follows the wording of Form K, which is set out in schedule 4 to the Land Registration Rules 2003 (which means the creditor cannot "block" a sale as some people believe)

An applicant seeking to register a disposition can easily comply with this restriction by sending a notice to the address specified and supplying the necessary certificate. The purpose of the restriction is not to prevent a disposition from being registered. (which is what should be pointed out to buyers conveyancers) It should however ensure that the judgment creditor is informed that a disposition has taken place so that they may try to recover payment out of the proceeds held by the trustees. The restriction will also ensure that the trustees or their conveyancers do not overlook the existence of the charging order when they decide how to apply the proceeds.” (meaning they have a choice not a legal obligation)

Earlier on, I think it was mentioned by Sequenci that a creditor could lawfully block a sale once an interim CO was in place…*confused*

Thanks for your reply. I have discovered that interest can only be added to charge orders over £5000 so no problem there. The house is my only and primary residence which raises another question in my mind. I own a large plot of land in Wiltshire which is on the land registry in my name. The plot is worth about £30,000. I assume that the water supplier and the county court failed to secure the charge order on my land and stuck it against my house so they could threaten me with being homeless. They could have obtained a charge order

on my land and then obtained an order for sale without having to threaten me with being homeless. I therefore consider water suppliers and County Court Judges to be evil people who want house owners to live on the streets. They had the choice of sticking the charge order on my house or on my land. They chose my house just to be nasty when I have another asset that would easily cover the debt many times over and could be sold without causing distress. Should I ever meet a County Court Judge in public I would be tempted to punch him in the face for being a house owner hating nasty person.

County Court Judges are evil….

The water company who took me to court knew that I was unemployed on no income and my wife was employed full time. I assume they didn't tell the judge in order to try to make a person homeless. Surely if the water supplier just wanted their money they would have applied for a CCJ against my wife and then applied for an attachment to earnings.

In this way they would have their money back by now. Instead they decided to apply for a CCJ and a charge order against me. That's why I conclude that the creditor and the courts want people living homeless rather than recover the debt by much easier and faster means.

 

Regarding the judge not taking into account income, about 15 years ago a friend of mine was taken to court for drink driving. He would have normally received a fine of around £800.

However, because he was unemployed he got a fine of only £80.

He would have owed the court and the police £800 but they let him off with a small fine due his low income.

This seems to imply that a county court case is far more serious than a magistrates court criminal case. I never received any reduction of my debt in the county court even though I had no income and had not committed any criminal offences. Perhaps the law should make utility debts criminal offences so you can then plead poverty and have them reduced on the basis of means testing.

I was under the impression that a judge is able to take one's circumstances into consideration before making an order, but when I went to court and told the judge I had no income or savings and was on ESA benefit, he still made me liable for the other side's legal costs, refusing to remove a 100% 'success' fee which doubled the costs, and even told the creditor he should secure the debt by way of a charge… so helpful of him!! So yes… criminals get a better deal.

Hi…. very confused as to whether I am in the right place to ask for advice about a possible mistake made by staff at the County Court, which caused my (counter) claim to be dismissed, resulting in a charge against my property.

The creditor had an Interim CO in place, and a hearing for the Final CO was adjourned to allow my equitable counterclaim to be taken into consideration.

Two weeks later I received a letter from the court stating that my fee remission application had been refused as the letter of evidence was more than 3 months old.

I immediately delivered (by hand) to the court the required up to date proof of exemption from court fees and awaited the next hearing which would take place 3 months later.

I received no further correspondence from the court, and closer to the date of the hearing, I became concerned that I had received no documents in defence of my counterclaim from the creditor's solicitor, despite emailing them several times.

I contacted the court, asking if they could look in my file and let me know how things were proceeding, and was told the file had been 'mislaid'.

A week before the hearing, when I had still heard nothing from either the court or the creditor's solicitor, I spoke to the court again, asking about my file and was told it had somehow been sent to a court in London, but they could not tell me how or why. They also said there had been no contact by the other side.

Three days before the hearing, I received a document from the creditor's solicitor, which stated the following;

"The defendant's equitable counterclaim has yet to be issued by the court on the grounds that the defendant has failed to pay the requisite fee".

This was followed by a request that my counterclaim be struck out.

I immediately phoned the court and explained the situation and was told that the judge would be informed but it was too late to do anything about it and that my counterclaim would not be considered.

At the hearing, the judge told me he was aware of the situation but could not adjudicate. HE told me I should pursue my claim at a later date as a separate issue and made the CO final.

I have been trying to make a separate claim, but my legal expenses insurance won't cover it, saying my claim arises out of an pre existing issue.

I have decided that I should make a complaint to the court, due to its maladministration.

I would be so grateful for any advice, please.

I think a bit more background is required to get sensible help. What is the counterclaim about - is it related to the main claim?

Why were you running the case yourself if it was covered by legal expenses insurance?

Hi Steampowered!

Apologies- I may have inadvertently confused the issue by mentioning the problems with my legal expenses insurers. (I wasn't insured at the start of litigation, but was covered when the incident arose that I wished to claim for). However, insurers being what they are, they are saying my claim cannot now be pursued as a separate issue from the main litigation, 'because it arises from the same dispute so is irrevocably inseparable'). Which I suppose it is.

As I understand it, the reason the court dismissed my counterclaim, was because it mistakenly believed I had failed to pay the requisite court fee. (I am exempt due to low income and had provided form EX160A). But it did not write and let me know and there passed more than 3 months between the adjourned hearing and the final hearing without any correspondence whatsoever from the court, despite my emailing them several times.

If they had decided to dismiss my claim, there should have been something in writing, giving a reason, surely?

When I asked them to retrieve my file to update me on what was happening with my application, they couldn't find it. Then I contacted them again and they told me the file had been sent to the County Court in London by mistake, possibly, this is where the document for my fee remission was lost.

So when the judge at the final hearing told me to pursue the claim as a separate issue, it was not for any other reason than that he was unable to adjudicate on the matter as the court had not issued the counterclaim. Not his fault, although he was informed of the court's mistake at the 11th hour so should probably have adjourned.

I suppose I need to make a complaint to the manager of the court but am not sure whether I should make a set-aside application at the same time.

I think you will find that they will only take into circumstances the ability to pay.. eg.. if you are requesting an instalment repayment.

After a hearing (about a boundary dispute with a neighbour), the Judge made an Order for Costs.The JC followed up with an application for a charge on my home and this was also Ordered at a hearing in November last year.

I argued prior to the hearing, making an application in my defence that I shouldn't have been liable for the costs in the first place as the claimant had a Conditional Fee Agreement but did not serve the necessary notice by way of form N251. It is a pivotal document but does not appear in the Trial Bundle as would have been expected. Also, I have a copy of the court transcript and the Judge mentions that it should have been served on the court.

The court failed to issue my argument and mistakenly stated that I had failed to pay the court fee (from which I am exempt).

Although I sent a letter to the court before the hearing, explaining everything, it was ignored or overlooked by the Judge and he refused to adjourn. He seemed only to favour the claimant and was not prepared to hear my side at all.

I found this information:

FAILURE TO SERVE FORM N251: ADDITIONAL LIABILITIES & PREMIUM DISALLOWED; RELIEF FROM SANCTIONS REFUSED

June 10, 2014 · by gexall · in Civil Procedure, Costs, Relief from sanctions · 1 Comment

We are seeing reports come through of cases that were decided some time ago. However they provide illustrations of the problems that can arise and the court’s likely approach. Ibbertson -v- Black Horse Ltd [Maidstone County Court] is available on BAILLI where the Deputy District Judge deals with the issue of whether a Form N251 was served. This decision was made before the Mitchell decision, however the judge expressly considered the new CPR 3.9.

THE ISSUES: HAD A FORM N251 EVER BEEN SERVED? IF NOT, SHOULD THE CLAIMANTS BE GRANTED RELIEF FROM SANCTIONS?

The initial claim had been settled with the defendant agreeing to pay the claimants’ costs. When the points of dispute was filed an issue arose as to whether the N251 had been served. The defendant asserted it had not.

The judge found that the N251 was not received, finding that the evidence before him was not satisfactory.

“11. All I have really is a written statement from Ms Y saying that in her view a letter was sent; her statement is written in very general terms and as Mr S rightly says that does not go into any great detail about the process by which the letter was sent.

Equally I have to say that Black Horse’s evidence does not tell me anything about the processes in its solicitor’s office about receipt of letters.

Nevertheless, I have been been pursuaded by the fact that the two recipients, allegedly to whom the letter was sent, did not receive the letter. I find that the solicitors representing Black Horse Limited did not receive it. I also have to find, simply because I have the file in front of me, that the Court did not receive that letter either. I have to say I am very concerned to note in the replies to points of dispute that in response to the allegation about recovery of additional liabilities, it simply says:

“The Claimants do not agree with the Defendant that a success fee or ATE premium is not recoverable. The Defendant was made aware in the Claimant’s letter before action dated 15th February 2011 that the Claimants entered into a Conditional Fee Agreement. The Claimants are of the view that the Defendant has dealt with the Claimants’ instructing solicitors on various claims before and they are aware of their practice to enter into a Conditional Fee Agreement which provides for a success fee. The Claimants also note that at the time when the Defendant received the letter before action or at the time of issue, this point was never raised”.

Why is the letter of 12th May 2011 not mentioned there? It seems to me an obvious point to make because the letter of 12th May 2011 encloses the N251, which is precisely the alleged notice which brings the matter back within the rules. I find it very odd I have to say, that the reply did not mention it. I cannot and do not say that Ms Y is telling lies. She is a partner and I would not suggest that she was telling me lies or untruths. It may be that the letter was certainly dictated, it may be the letter was certainly taken down to the post room but it does seem to me very odd that there is a lack of evidence from the claimants’ solicitors as to how that letter got out of the solicitor’s office and the general processes under which their postal system operated.

I also note (if I may say so) that on the alleged copy of the crucial letter I have seen at page 58 in the bundle, the font size of the name and address of the recipient and the letter itself seem to me to be different, which is again an odd point which I have noted from looking at these documents.

If, as I do, I find that on the balance of probabilities the letter of 12th May 2011 and form N251 did not get to their recipients. I also find that they were not posted and it seems to me that the breach of the rules is therefore much more fundamental than the claimants’ solicitors suggest.”

SHOULD RELIEF FROM SANCTIONS BE GRANTED?

The judge refused an application for relief from sanctions.

There was a finding that N251 had never been posted.

The claim was a relatively modest one and the additional liability and premium were large.

“even if I were looking at the old version of CPR rule 3.9 I would be looking in more detail at the issue of prejudice. I would have decided, in this particular case, that the prejudice was actually substantial, bearing in mind the amount of the claim itself. An “after the event” insurance premium of this size is extremely large and is something that the recipient of a notice would be bound to ask questions about and would be bound to consider very carefully in terms of negotiating with the claimant”

The judge rejected arguments that relief should be granted because the existence of an additional liability was mentioned in the letter before action.

The judge also did not accept an argument that relief should be granted because the defendant’s solicitors had dealt with the claimants’ solicitors on many occasions in the past and were aware that additional liabilities were claimed.

LESSONS THAT FLOW

I stress that this was a pre-Mitchell decision. However it very much anticipates the Mitchell judgment. There are a number of clear lessons.

Make sure the Form N251 is sent.

Make sure you can prove the Form N251 was sent.

This information is pretty clear cut and would suggest prejudice by the court, especially as I was a LIP, but I would be so grateful for any advice as to what I should do next, please.

Can I apply to have the Judgement dismissed/overturned or something?

Hi,

What are the other side saying about the N251 - Notice of Funding? Are they claiming one was sent with the proceedings?

As the judge was biased against you, you have irresistible grounds to appeal against the charging order and have the judgment set aside. See this case: Locabail (UK) Ltd v Bayfield Properties Ltd & Anor [1999] EWCA Civ 3004 (17 November 1999), which confirms the principle.

If your counterclaim was a large one and or complex, the lower Court would not have had authority to deal with it and therefore the whole matter (the charging order application and your counterclaim) should have been transferred by the lower Court to the High Court – Queen’s Bench Division or Chancery Division, depending upon what grounds and law your counterclaim is found. As this did not happen, this is a serious procedural error by that lower Court which has clearly caused significant prejudice to you.

If you do appeal against the charging order, as the judgment was made against you in November 2014 you must file an Application notice (form N244) with your Appellant’s notice (form N161) and by your Application notice seek an Order from the Appeal Court for relief from sanctions under CPR r.3.9 and for an extension of time under CPR r.52.6 for variation of time to file your appeal notice, this is because the 21 day time limit set under CPR r.52.4 for you to lodge your appeal has expired and in the absence of relief you will be unable to appeal. See this case: Sayers v Clarke Walker [2002] EWCA Civ 645, which confirms the principle.

For confirmation as to the principle on relief from sanctions, see these cases: Denton v TH White Ltd, Decadent Vapours Ltd v Bevan and Utilise TDS Ltd v Davies, all decided by the Court of Appeal.

Don’t waste your time by writing letters of complaint to the lower Court as regards the Court’s staff maladministration/incompetence in their handling of your counterclaim, because this will get you nowhere and will frustrate you.

Please reply to this post as soon as you are able to. Thank you.

ibberty bibberty

Yes… they say it left their post room by first class mail…. and considering their huge charges, you'd imagine they would send any important documents recorded delivery...

Finally someone who is able to give me some useful advice… I had almost given up & have been watching the tumbleweed roll past!! Many thanks!!

Hello and sorry to be a bit slow responding to this.

The time limit for appealing is 28 days. This is a hard deadline. You need pretty exceptional circumstances to get an extension to that. If you did get an extension you'd need a very good reason and would be expected to have acted as quickly as possible.

I understand the order was made in November 2014. You are now so far past the deadline that, in my view, appealing it now would be hopeless.

You may read the judgments given in some of the cases referred to by ibberty bibberty/The Mould, but I don't think these cases support you. For example, if you read the joined cases of Denton v TH White Ltd, Decadent Vapours Ltd v Bevan and Utilise TDS Ltd v Davies; you will see that relief from missing time limits was refused in cases where the delay was much less than in your case.

These days the 'success fee' under a Conditional Fee Agreement is not recoverable from the losing side. I assume that this has become an issue because the claimant was awarded a 'success fee' under their Conditional Fee Agreement and that the Conditional Fee Agreement was entered into before 1 April 2013, which is when the new rules abolishing the recoverability of CFA 'success fees' were introduced. If my assumptions are correct, I do believe that failure to serve an N251 would only prevent the other side from recovering the 'success fee' but would not prevent them from claiming the rest of their costs. Although in any event, unfortunately, I think it is now far too late for you to start appealing against an award of the success fee due to not receiving the N251.

The only thing you could possibly do is to bring a new claim forward if you do genuinely have an 'equitable counterclaim'. I would need to know more details to comment on that - it would have to be something different to the main dispute, and not just a rehash of the matters which has already been decided by the court.

Yes… they say it left their post room by first class mail…. and considering their huge charges, you'd imagine they would send any important documents recorded delivery...

Nothing will have been sent by recorded delivery.

Hello Steampowered

Well you may be forgiven as regards your assumption that I am ‘The Mould’, however, this is simply not true. While my writing style may be comparable to ‘The Mould’s’, which of course is because I was his Professor , ‘The Mould’ and I are two different legal entities.

I do of course, therefore, know ‘The Mould’ very well.

Now, on to more important and relevant matters, such as the subject matter of this present case, which still remain to be dealt with so as to help the original poster (op) to come to his decision on the matter.

Any judicial decision handed down by a judge who is bias towards the party in favour of which his judgment is given, presents irresistible grounds to the appeal court to allow the appeal and set aside such judgment.

This is because by being bias, the judge has violated the litigant’s fundamental right under art.6 ECHR to be given a fair and reasonable opportunity to put his case and his entitlement to a fair hearing by an impartial tribunal. That right is a strict legal right and a fundamental one, any judge who allows any judicial decision to be influenced by partiality or prejudice deprives the litigant of this strict legal right and violates one of the most fundamental principles underlying the administration of justice, as a consequence of the such the judge is automatically disqualified and his judgment set aside.

There are cases in the appeal court where the appellant, whether he be the Claimant or Defendant, has successfully appealed out of time in a whole manner of cases of differing issues and even as much as 4 years out of time.

Therefore, the op has irresistible grounds to appeal and set aside the judgment against him on the bias grounds and, contrary to your advice, which is plainly wrong in law; it is far from being too late for him to do so.

The gist of the circumstances posted here relate to the judge being bias, the non-service of N251 is a factor in the case but is not central to an appeal action in this case, as the op said he has the transcript of the proceedings and the judge states therein that N251 is not with the court, however, he disregarded this fact, among others, and such conduct provides further conclusive evidence as to him being bias.

ibberty bibberty

Nothing will have been sent by recorded delivery.

Evidently. But it would make life a lot easier (& fairer) if important documents needed a receipt. The rules around service are strange & complex, but so long as they say it was sent by 1st class post, then the Court will accept that and assume it was received.

But the document was not in the bundle and was not produced at court.

Steampowered;

Thank you for your post.

I had already brought the matter of the missing N251 to the court's attention prior to the hearing and the court unfairly dismissed my defence and counterclaim, saying that I had not paid the fee (from which I am exempt).

The Judge should have adjourned, as I had explained my exemption from fees in a letter to him before the hearing.

I know some time has passed since the JO, but I have not been in good health and have also recently been suffering from tinnitus which makes the drafting of legal documents impossible.

... suffer from tinnitus which makes the drafting of legal documents impossible.

I'm not sure if this is classed off topic, but can you explain that a bit more ?

I have tinnitus but it doesn't stop me drafting any letters or documents etc

I don't agree with the previous poster's assertion that the judgment can be attacked due to 'bias'. I do not see any evidence that the judge was 'biased'. To demonstrate bias you would need to show some pre-existing relationship between the judge and the other side.

Ill health can be a reason for getting a deadline extension. But how your illness prevented you from appealing the order within the time limit would be challenged and very closely analysed. Most illnesses would not normally stop you from filing an appeal within 28 days. If you were genuinely prevented from filing the appeal, for example if you had to stay in hospital, you would be expected to act as quickly as possible after leaving hospital. Unless you have been in hospital for the last six months I think you are very very unlikely to be allowed to file an appeal now.

ibbertybibberty, it is practically unheard of for one judge to find that another judge acted with bias. This is evident from the Locabail case you mention. Only if a judge had some kind of interest in a case would s/he be disqualified.If judges regularly got overturned because of bias then there would be many successful LIPs.

Evidently. But it would make life a lot easier (& fairer) if important documents needed a receipt. The rules around service are strange & complex, but so long as they say it was sent by 1st class post, then the Court will accept that and assume it was received.

 

But the document was not in the bundle and was not produced at court.

Setting aside the trial bundle for a moment, was a Notice of Funding ever served on you? What about with the original Court papers you received?

This is just for information

.... but so long as they say it was sent by 1st class post, then the Court will accept that and assume it was received.

Not any longer I'm afraid, it's about the 'probability' of it being delivered. In your particular case, as you sent the letter twice, then the probability of it being delivered would be high.

It's a bit complicated, but should anyone want to read it, Calladine-Smith v Saveorder Ltd in the high court

I'm not sure if this is classed off topic, but can you explain that a bit more ?

I have tinnitus but it doesn't stop me drafting any letters or documents etc

Well, you should consider yourself very lucky. I've suffered from tinnitus for many years and it was no problem at all, but a couple of years ago I had a procedure carried out which damaged an eardrum, since when I have been left with a very loud buzzing, like a bee trapped inside my head. I was ok at first but it has gradually worn me down because I can't sleep. I now have an anxiety disorder and depression.

I suppose I must be a bit thick, too, or perhaps it's my age, but I find the drafting of legal documents quite complicated.

This is just for information

 

 

 

Not any longer I'm afraid, it's about the 'probability' of it being delivered. In your particular case, as you sent the letter twice, then the probability of it being delivered would be high.

 

It's a bit complicated, but should anyone want to read it, Calladine-Smith v Saveorder Ltd in the high court

It probably wasn't delivered.

It didn't appear in the bundle & wasn't produced at court. But this is a non starter, due to the irrebutable presumption of service. If it left their post room, it is deemed to have been served.

I suppose I must be a bit thick, too, or perhaps it's my age, but I find the drafting of legal documents quite complicated.

Don't ever say or think something like that.

All LIPs get a fair hearing of course and a Judge would never side with the represented party.

Don't ever say or think something like that.

Thank you for the link… I will read it after breakfast… can't do this stuff on an empty stomach...

Setting aside the trial bundle for a moment, was a Notice of Funding ever served on you? What about with the original Court papers you received?

No, never.