Managing Agent leasehold Property 4th Court Claim same issue.

[BlurredFX]

I think this could be quite important for this case (claim2014) and also when it comes to dealing with claim2011 down the line. This is for my third line of defence really. My current thinking is

 

First line of defence - App for stikeout/SJ

Second line of defence - He never had permission from LL to manage the property hence all his legal action is without merit.

Third line of defence - If he finds permission from LL or current LL decides to back him, then I need this L&T s21B stuff, s47/s48 of the Landlord and Tenant Act 1987

 

In one of the letters the LL states he has concerns that the building isn't being managed as per the lease. I really would be happier with this in.

 

Adding/amending to defence is a bit of a pain do dong do it unless you really have to, you have to make an application, pay a fee, other side can request a hearing I think. Only do it if your defence has something real important missing.

 

I will do it, N244 isn't a problem, neither is the fee. Would you tend to agree it is important though?

 

Just checking my own stuff, and where I have written (or copied)

 

Service Charge demands do not comply with s21(b) of The Landlord and Tenant Act 1985

 

I think there might be a problem with it. I can't find a reference to anything in this link

 

http://www.legislation.gov.uk/ukpga/1985/70/section/21?timeline=true#commentary-c1994430

 

But i think what I am looking for is in this link:

 

http://www.legislation.gov.uk/ukpga/2008/17/section/303/prospective

 

Do I need to revisit this?

[BlurredFX]

Cancel the revisit question.

 

http://www.legislation.gov.uk/ukpga/1985/70/section/21B

 

I need to panic less!

[andydd]

Check if the other side can claim costs due to the amending of defence, I can't recall how it works now but you don't wanna be lumbered with their solicitors costs of £200 an hour.

[BlurredFX]

Letter from the Court:

 

The hearing for the defendant's application for . (see copy attached) will take place on 2PM on end of March at the County Court (hometown).

 

Cases are listed in accordance with local hearing arrangements.... blah blah, judiciary, unavoidable delays, etc

 

Attached to the notice was a copy of the N244 Application notice I sent in requesting

Summary judgement. The claim be struck out. The claim is relitigation of claim2011 at hometown CC

 

So there we have it. Hearing of my application at the end of March.

 

Check if the other side can claim costs due to the amending of defence, I can't recall how it works now but you don't wanna be lumbered with their solicitors costs of £200 an hour.

 

You're right, I don't! I have a feeling they may actually have involved a solicitor this time. But at the same time, I think they realise that they don't have any authority off the LL so see what happens!

 

Just to refresh - this is so I can add a third line of defence to my case, that they have not maintained the building/breach of lease.

 

According to CPR 26.3 upon my filing a Defence both parties are sent an AQ. No AQ had been received. Does that mean at this stage they have not considered my Defence?? That kind of works in my favour if it has.

 

According to CPR27.14, Rules 46.11 and 46.13 make provision in relation to orders for costs made before a claim has been allocated to the small claims track

 

46.11

(1) Part 27 (small claims) and Part 45 Section VI (fast track trial costs) contain special rules about –

(a) liability for costs;

(b) the amount of costs which the court may award; and

© the procedure for assessing costs.

(2) Once a claim is allocated to a particular track, those special rules shall apply to the period before, as well as after, allocation except where the court or a practice direction provides otherwise.

 

The claim is for just over four grand, hence I presume it will be allocated SCT. SCT provides me with a decent amount of protection doesn't it? I have a reasonable risk tolerance for costs. The Judge in claim2009 advised the claimant he would be liable for all costs as he had messed around to no end - hearings and what not, only to come up with absolutely nothing. The same applies here - if he had simply provided the authority I have been asking for since 2009, then all these costs would have been avoided. I am not qutie sure how to argue that, especially if the claim goes against me, but the point is most certainly valid - if he had provided me with authority to collect in 2009, there wouldn't have been any issue whatsoever.

 

I've had a look at "CPR 46.8 - Personal liability of legal representative for costs – wasted costs orders" and was wondering if this is relevant to the Agent. At the end of the day, I would rather (if I can) stick the costs on the Agent (their legal representative?) than on the RTM company, which ultimately means I would be paying a portion of the costs against myself!?

 

At this point, for all my ramblings, I am thinking I should leave it till after this hearing. If the claim is struck-out, it's a non issue. As it is, this is complicated enough, for me, CAG, and the Court. It seems prudent to my mind that we wait until after the hearing, and take stock at that point.

 

If the Judge decided he wants to hear the case himself, I can then make an application to amend my Defence. If he strikes it out, I move on to Restore claim2011, where I will probably need to amend my defence as well, but deal with it at the time.

 

Am I making sense still?

 

Cheers guys, you're all good uns!!

[BlurredFX]

Ohh, think I may be onto something.

CPR27.14 - Costs on the small claims track

(1) This rule applies to any case which has been allocated to the small claims track.

(2) The court may not order a party to pay a sum to another party in respect of that other party’s costs, fees and expenses, including those relating to an appeal, except –

...

(g) such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably

 

So maybe that will be useful for later when I have to either go for costs, or defend myself against a costs claim.

[DonkeyB]

There’s plenty of legal precedence regarding costs on SCT. If a claimant or defendant ‘behaves unreasonably’, ie. protracts a case that is clearly unwinnable, then a judge can award costs. It’s a complex area, but since the demise of pro bono/success fee work, it’s more prevalent. I don’t think you will ever fall in to that category, fortunately – but they might.

 

Rule 27.14(2)(g) of the CPR is the key. Google “small claims track (SCT) costs order unreasonable behaviour” for some info.

 

Bear in mind, too, that judges have the power to allocate a claim to the fast track if they think it is complex and will need time and specialist expertise to resolve.

 

So at some point it may be worth writing to them to point this out, stating that you will apply for costs on these grounds if they insist on pushing on.

[DonkeyB]

Snap!

[BlurredFX]

There’s plenty of legal precedence regarding costs on SCT. If a claimant or defendant ‘behaves unreasonably’, ie. protracts a case that is clearly unwinnable, then a judge can award costs. It’s a complex area, but since the demise of pro bono/success fee work, it’s more prevalent. I don’t think you will ever fall in to that category, fortunately – but they might.

 

Rule 27.14(2)(g) of the CPR is the key. Google “small claims track (SCT) costs order unreasonable behaviour” for some info.

 

Bear in mind, too, that judges have the power to allocate a claim to the fast track if they think it is complex and will need time and specialist expertise to resolve.

 

So at some point it may be worth writing to them to point this out, stating that you will apply for costs on these grounds if they insist on pushing on.

Snap

 

Wahheeyy! Made up I found something myself! I feel almost useful now! Thanks for your this, it builds my confidence.

 

To my mind they have behaved unreasonably, relitigating the same case thrice, not turning up to hearings, demonstrably starting litigation when they knew twice I had been rushed into Hospital. Not responding to Court Orders to produce documents, not paying his Court Fee until the third reminder, after his case was supposed to have been struck out. There's just a litany of stuff, most of it is evidenced by the courts own paperwork!! The only thing he's done promptly was applying to the mortgage company the same day he got judgement in default! And he even lied on that as well... claiming for Ground Rent that wasn't on the Claim Form or anything.

 

My argument would be, regardless of the outcome, that he should bear all costs in all cases (2009, 2011 and 2014), except maybe the first hearing fee, because if he had produced his evidence in 2009, there would be no further need for litigation. I would have paid what was due and kept the account up to date, end of story. Therefore he bears the costs. Does that sound reasonable?

 

With regard to writing to them to advise about further costs, I have made an application for modest costs regarding this case with the N244 I sent in.

 

But I think that would be a good idea to write again if this application goes my way - this case (2014) is thrown out and I then Restore the previous one (2011).

 

Fingers crossed it doesn't go Fast Track, I guess. What does that imply, apart from much larger scope for costs? I will have a look at CPR26.6 Scope of each track. From what I can gather, the only pert that's applicable is that

 

Section 3 "Subject to paragraph (1), the small claims track is the normal track for any claim which has a value of not more than £10,000."

 

26.6(1)b(i) the tenant is seeking an order requiring the landlord to carry out repairs or other work to the premises (whether or not the tenant is also seeking some other remedy);

does not apply

 

 

I don't see a reason why it would take me more than a day to explain that the claimant hasn't produced any authority from LL and has failed to establish any liability of myself to him.

 

If my application gets thrown out, then my first line of Defence (his documents or lack thereof) and it get's down to details such as what's payable under Service Charges etc., (i.e. he HAS established his authority to collect) then it may get more complicated, but even then, not that much - none of his invoices have the name of the Landlord on! He's failed until recently to produce certain documents in the requisite format (10 point, legible, things like that) but I guess that serves as a warning to me to get my ducks in order and make sure I can account for everything!

 

How's my logic and reasoning?

[BlurredFX]

I am just going through things, the hearing is on Thursday afternoon.

 

To recap, this hearing is for my application that this case be struck out on the grounds below. In short, claim2011 and claim2014 are completely the same, except for the dates - effectively claim2011 ends, and claim2014 starts the next day. Claim2011 was set-aside and hearing adjourned, and he started claim2014 subsequently.

 

This hearing s for claim2014 to be struck out, as below.

 

 

c) The circumstances in the current claim have not changed since the original claim nor has the Claimant asserted there are any new or additional facts which could possibly warrant the claim being bought before the Court again.

 

d) I refer to the “White Book – Civil Procedure Volume 1” (Sweet & Maxwell) and in particular the effect of rule 38.7 - “As a matter of common sense, where a claimant who has brought and then abandoned a claim ought not as a general rule to be allowed to start another claim arising out of the same facts.”

 

e) I invite the court to consider Westbrook Dolphin Square Ltd v Friends Provident Life and Pensions Ltd, 14th September 2011, where the court stated: (1) The principles identified by the maxims nemo debet bis vexari pro una et eadem causa (no one should be vexed twice in respect of one and the same cause) and interest reipublicae ut sit finis litium (it is in the public interest that there be an end to litigation) should inform the court’s approach to CPR 38.7. It followed that there was an analogy between the principles to be applied to an application under CPR 38.7 and those applied by the courts under CPR 3.4(2)(b) with respect to Henderson v Henderson abuse of process.

 

...and I wondered under what section of the CPR he might seek to alter claim2011, to incorporate the dates for claim2014 and claim2011 into one case, which is what I want. Could it be CPR17.1??

 

I am not looking to do the Claimant's litigation for him, just be in command of the facts, and able to withstand scrutiny. In my experience as a LiP the Judge generally wants to know that you have a rounded understanding of what you are applying for and why - I can imagine the PPI and CCA Agreements have made the Judiciary weary of litigants with copy-and-pasted documents. I had a couple of "wins" that way, and a £5k CCJ I shouldn't have... So I am wary!

 

Amendments to statements of case

17.1

(1) A party may amend his statement of case at any time before it has been served on any other party.

(2) If his statement of case has been served, a party may amend it only –

(a) with the written consent of all the other parties; or

(b) with the permission of the court.

(3) If a statement of case has been served, an application to amend it by removing, adding or substituting a party must be made in accordance with rule 19.4.

 

19.4 doesn't seem relevant as it is the "Procedure for adding and substituting parties" - which might come in handy if my mortgage co want to join my counterclaim, but that is unlikely, I feel! But it might be useful to quote it to the Judge if he tries to strike out my counterclaim before I am ready to withdraw it??

 

So, if the Judge asks questions about how the claimant is supposed to proceed, etc, at least I have the answers and can converse with the Judge instead of sitting there dumbstruck.

 

Is 17.1 right for the otherside to alter dates?

 

If the Judge wants to strike out my counterclaim, is the existence of 19.4 good to argue to keep the counter-claim alive?

 

FWIW, at the last hearing the Judge gave me the choice of whether to strike out my counter-claim, or leave it - having explained to me that the best resolution of this matter is likely to be pursuing my mortgage company who can then pursue the Claimant. I am claiming no relationship with the Claimant, and the Claimant has taken zero money off me - they have taken it off the Mortgage co, who have added it to my balance, plus interest plus fees. My relationship is with the mortgage company, not the claimant. The mortgage co can pursue the Claimant on his own. I intend to go FoS first before I start litigation against General Electric...

 

I asked him to leave it open, as I intend to do on Thursday if asked, because I can simply withdraw it if I confirm a future plan of action that requires it. Does that seem sensible? Retain as much control as you can for as long as you can.

 

I am going to put some consideration into costs as well, as I have requested them.

 

My worst fear is if the Court will consider the documents I sent in two weeks after my initial defence - if it doesn't that could make explaining things a little more laboured, so I will take copies for him - but last time this was in Court (claim2011), the Judge also had all the previous case details (claim2009) in front of him as well!

 

Is CPR17.1 the right one? Is 19.4 if I wanted to add the mortgage co to my counterclaim? Draft costs to follow. And I guess it's anyones guess if the Court will consider the later set of documents (evidence) - as I had to serve docs by 11th Jan (ish) and didn't send them till a fortnight later.

 

Thanks a lot guys. You're all amazing people!

[steampowered]

I suspect CPR 3 is what you are looking for:

 

I CASE MANAGEMENT

The court’s general powers of management

3.1

(1) The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.

(2) Except where these Rules provide otherwise, the court may –

(a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);

(b) adjourn or bring forward a hearing;

© require a party or a party’s legal representative to attend the court;

(d) hold a hearing and receive evidence by telephone or by using any other method of direct oral communication;

(e) direct that part of any proceedings (such as a counterclaim) be dealt with as separate proceedings;

(f) stay(GL) the whole or part of any proceedings or judgment either generally or until a specified date or event;

(g) consolidate proceedings;

 

If I were you, I would want to advance the counterclaim. It will be easier and quicker to claim from the claimant directly rather than trying to get your mortgage company to do it.

[BlurredFX]

Thank you Steampowered, very quick response! One question.

 

It will be easier and quicker to claim from the claimant directly rather than trying to get your mortgage company to do it.

 

I kind of agree, but the Judge said that isn't how it'll work. He certainly put every conceivable caveat in that he wasn't giving me advice. The Judges logic: I claim of mortgage co, as they have a duty of care to me and have put the bill on my account, and mortgage co claim off the claimant. At no point has the claimant taken anything from me, so I can't ask him for it back.

 

By the way, my counterclaim in claim2011 is for the £6k the claimant claimed off my mortgage company under threat of forfeiture (don't forget claim2011 was won by the claimant in default. Subsequently I had it set-aside and then adjourned - at which point he started claim2014!!)

 

I will claim costs off the claimant, if it goes my way. I think the counter-claim is dead. What's your logic for my claiming of the claimant? The Judge certainly hadn't had time to consider it fully, he said as much, and I certainly don't want to miss a trick! It's not like Judges don't make mistakes... so how would I go about it? Claim damages? Coz theres loads of them including the fact I've been unable to remortgage because of this. Also the fact he has misrepresented the Court and all kinds, I think it's criminal but that's another story.

 

Edited March 29, 2016 by BlurredFX
Poor inglrish

[andydd]

I would of said CPR 17 but yes CPR 3 does seem more relevant.

[BlurredFX]

I would of said CPR 17 but yes CPR 3 does seem more relevant.

 

Nice one, ta. I will go in armed with both! It won't hurt, and will build credibility with the Judge if I get put through the wringer like I did last time! Thank you.

[steampowered]

Nice one, ta. I will go in armed with both! It won't hurt, and will build credibility with the Judge if I get put through the wringer like I did last time! Thank you.

CPR 3.1 (g) deals with consolidation of separate sets of proceedings.

 

CPR 17 deals with amendments to statements of case. Statements of case are things like particulars of claim and the defence. This is not relevant to changing the dates on court orders (that is just done by way of a simple application under the court's general case management powers CPR 3).

 

CPR 19 deals with the addition and substitution of parties. This means changing the identity of the claimant or defendant, or adding new claimants or defendants. This would only be relevant if you were adding the mortgage co but that sounds unlikely. CPR 19 is not relevant to whether or not your counterclaim gets struck out.

 

I kind of agree, but the Judge said that isn't how it'll work. He certainly put every conceivable caveat in that he wasn't giving me advice. The Judges logic: I claim of mortgage co, as they have a duty of care to me and have put the bill on my account, and mortgage co claim off the claimant. At no point has the claimant taken anything from me, so I can't ask him for it back.

 

By the way, my counterclaim in claim2011 is for the £6k the claimant claimed off my mortgage company under threat of forfeiture (don't forget claim2011 was won by the claimant in default. Subsequently I had it set-aside and then adjourned - at which point he started claim2014!!)

 

I will claim costs off the claimant, if it goes my way. I think the counter-claim is dead. What's your logic for my claiming of the claimant? The Judge certainly hadn't had time to consider it fully, he said as much, and I certainly don't want to miss a trick! It's not like Judges don't make mistakes... so how would I go about it? Claim damages? Coz theres loads of them including the fact I've been unable to remortgage because of this. Also the fact he has misrepresented the Court and all kinds, I think it's criminal but that's another story.

 

I would be careful about reading into off-the-cuff comments made by the judge. Those are not an actual decisions and I doubt they had been properly thought through.

 

It sounds to me like your counterclaim is still live and out there (remind me of the status - am I correct to think it was stayed?)

 

I think you would find it a nightmare to try and get that money back from the mortgage company, for several reasons:

- The mortgage company has no way of investigating whether or not the service charges claimed by this person were legitimate, short of asking the freeholder.

- The mortgage company will not be prepared to be left out of pocket by repaying you the money without receiving anything from the freeholder.

- The mortgage company is very unlikely to start suing the freeholder. Who is going to pay for it to bring a court claim and instruct solicitors? Particularly as this would be a small claim and hence the mortgage company is unlikely to be able to recover any of its legal costs.

- Your mortgage T&Cs may not require the mortgage company to pay you back anyway. Have a look - I doubt there is anything in there which requires them to do this.

 

Realistically, I think you probably need to get this money back from the claimant, if you ever want to see it again. The legal basis would be negligent misstatement (if the freeholder was simply careless in claiming this money from the mortgage co) or the tort of deceit, which is also known as civil fraud (if the freeholder acted fraudulent, meaning he knew he was not entitled to this money, when claiming it from the mortgage co). In essence, the freeholder had a duty of care to you to claim the correct service charge, and his wrongful statement to the mortgage co has caused you to incur a liability to your mortgage co.

[BlurredFX]

Thank you for this SP. Very helpful.

 

It sounds to me like your counterclaim is still live and out there (remind me of the status - am I correct to think it was stayed?)

 

Like the rest of claim2011, it is "adjourned with either party at liberty to restore".

 

I think you would find it a nightmare to try and get that money back from the mortgage company, for several reasons:

- The mortgage company has no way of investigating whether or not the service charges claimed by this person were legitimate, short of asking the freeholder.

- The mortgage company will not be prepared to be left out of pocket by repaying you the money without receiving anything from the freeholder.

- The mortgage company is very unlikely to start suing the freeholder. Who is going to pay for it to bring a court claim and instruct solicitors? Particularly as this would be a small claim and hence the mortgage company is unlikely to be able to recover any of its legal costs.

- Your mortgage T&Cs may not require the mortgage company to pay you back anyway. Have a look - I doubt there is anything in there which requires them to do this.

 

Realistically, I think you probably need to get this money back from the claimant, if you ever want to see it again. The legal basis would be negligent misstatement (if the freeholder was simply careless in claiming this money from the mortgage co) or the tort of deceit, which is also known as civil fraud (if the freeholder acted fraudulent, meaning he knew he was not entitled to this money, when claiming it from the mortgage co).

 

For clarity, and importantly, the Claimant is not the Freeholder. The Freeholder (Landlord) was essentially absent, so the neighbours set up a company to deal with routine maintenance - gardens, tidying round etc. It is this company that has brought the action in claim2009 and claim2011 - they are not related to the Freeholder/Landlord in any way! They were acting without any consent from the LL.

 

in 2009 the Claimant withdrew his claim. in 2012 or 13, I had claim2011 set aside, and a hearing was held. Everything was adjourned at that point. The Claimant paid for the hearing but never turned up.

 

In Jul 2014, an RTM company was formed, and the RTM started claim2014, backdating to the end of claim2011.

 

In light of the above, I reckon your statement that "the tort of deceit, which is also known as civil fraud (if the freeholder acted fraudulent, meaning he knew he was not entitled to this money, when claiming it from the mortgage co" may be the case - if we replace freeholder with claimant.

 

Having been told to produce his evidence in 2009 he withdrew his claim. in 2011 when I was ambulanced into intensive care, he started and won the action by default. I had it set-aside, a hearing was scheduled, but he did not attend. The claim was adjourned, it wasn't thrown out as I didn't have the evidence to show the Judge that the Freeholder had not joined the action. I now have that (to a degree). Then once I was ambulanced into hospital again in 2014, he started claim 2014. This hearing is asking for claim2014 to be thrown out.

 

What do you think?

 

My loose plan was to get each claim thrown out, then approach the mortgage company, show them the orders, and say give me my money back, not my problem you paid out money that wasn't due, take it up with whomever you paid - nowt to do with me, just put my account right please.

Edited March 29, 2016 by BlurredFX
typo

[andydd]

CPR 3.1 (g) deals with consolidation of separate sets of proceedings.

 

CPR 17 deals with amendments to statements of case. Statements of case are things like particulars of claim and the defence. This is not relevant to changing the dates on court orders (that is just done by way of a simple application under the court's general case management powers CPR 3).

 

CPR 19 deals with the addition and substitution of parties. This means changing the identity of the claimant or defendant, or adding new claimants or defendants. This would only be relevant if you were adding the mortgage co but that sounds unlikely. CPR 19 is not relevant to whether or not your counterclaim gets struck out.

 

 

 

I would be careful about reading into off-the-cuff comments made by the judge. Those are not an actual decisions and I doubt they had been properly thought through.

 

It sounds to me like your counterclaim is still live and out there (remind me of the status - am I correct to think it was stayed?)

 

I think you would find it a nightmare to try and get that money back from the mortgage company, for several reasons:

- The mortgage company has no way of investigating whether or not the service charges claimed by this person were legitimate, short of asking the freeholder.

- The mortgage company will not be prepared to be left out of pocket by repaying you the money without receiving anything from the freeholder.

- The mortgage company is very unlikely to start suing the freeholder. Who is going to pay for it to bring a court claim and instruct solicitors? Particularly as this would be a small claim and hence the mortgage company is unlikely to be able to recover any of its legal costs.

- Your mortgage T&Cs may not require the mortgage company to pay you back anyway. Have a look - I doubt there is anything in there which requires them to do this.

 

Realistically, I think you probably need to get this money back from the claimant, if you ever want to see it again. The legal basis would be negligent misstatement (if the freeholder was simply careless in claiming this money from the mortgage co) or the tort of deceit, which is also known as civil fraud (if the freeholder acted fraudulent, meaning he knew he was not entitled to this money, when claiming it from the mortgage co). In essence, the freeholder had a duty of care to you to claim the correct service charge, and his wrongful statement to the mortgage co has caused you to incur a liability to your mortgage co.

 

This last bit is quite common a FH instead of instigating legal action and proving money is owed just contact the mortgage company CLAIM money is owed and SOME pay up, others investigate a bit more or require a court judgement. I'm not sure the process to recover this money though.

[steampowered]

My loose plan was to get each claim thrown out, then approach the mortgage company, show them the orders, and say give me my money back, not my problem you paid out money that wasn't due, take it up with whomever you paid - nowt to do with me, just put my account right please.

 

That sounds sensible. You can keep revival of the counterclaim in your back pocket if you don't want to go there for now.

 

As I said I'm a bit sceptical that the mortgage co will just roll over and leave themselves out of pocket, but there is certainly no harm is asking.

[BlurredFX]

As I said I'm a bit sceptical that the mortgage co will just roll over and leave themselves out of pocket, but there is certainly no harm is asking.

 

Good. I'd rather be challenged on my presumptions here first, than find out my ideas are flawed in the Court Room! Thank you.

 

I don't expect them to roll over, frankly. One can but try I guess. My first idea was going through F.O.S... they're consumer friendly.

 

With regard to Thursday, my car parking space is booked online for the NCP, which I thought was quite nifty! Right next door as well. Tomorrow's job is drafting up my costs just in case I get the opportunity, and getting a set of notes together with relevant facts I might need to refer to - such as the CPR stuff from today and a few other bits. I'm pretty confident of my stuff I think, it's just going into the unknown with regard to what the Judge makes of it all, or what the other side comes up with.

 

Thanks SP, thanks everyone.

[DonkeyB]

Get your costs together and in today – copy to defendant. Even in small claims, costs are possible if you can show unreasonable behaviour on their side, as mentioned in post #306 and others.

 

There is also the issue of whether they’ll turn up. Have they contacted you in any way?

[steampowered]

Good luck!

[BlurredFX]

Just got back.

 

Top and bottom of it is the Claimant was told to go away and get his case together, as what he presented is a load of rubbish.

 

21 days for the claimant to get his case together, and 21 days after that for me to respond with a detailed defence.

 

There's more to the tail than that, so I will post up some more in a bit. I need to calm down and get nourished, amongst other things.

 

I would have posted a thank you or something up yesterday or this morning, but I wanted my 800th post to be about a nice victory. Alas, it isn't.

 

But it was OK... I am more confident now than I was before! I think...

 

Well, the hearing was 45 minutes.

 

The Claimants submission consisted of the statement I had a long lease, plus a load of amounts, and that was it. My Defence has all kinds in it - which is on this thread. Basically, I knew what the Claimant was alleging but the Judge never! A

 

The Judge was asking the other side questions such as what lease? Why haven't I (the Judge) got a copy of the lease? Why do none of your dates match up properly? He went on to ask what are you alleging is owed and to whom because there are two companies involved here (pre-RTM and post-RTM).

 

The Claimant was struggling for words, and started going on about the lease being defective (which is cobblers) and the developer set up a company to manage things (which may or may not be true) - and the Judge said I have none of this. The Judge went on to say "if the Lease is defective as it has no provision for service charges, why are you claiming service charges?". The Claimant went on and mumbled something or other about changed lease or something and the Judge was like "OK, well were's the contract under which you are alleging the Defendant is deficient?". Claimant was just bewildered I think. I've long suspected the Claimant was as thick as two short planks, and after todays performance, I know as much. The Judge asked him if he knew what the hearing was for, and the Claimant said "I phoned the Court and asked them, and they just said to turn up". I am not joking!! Seriously. This is why it's dragged on for seven years. His only tactic is to start action when he knows I am in intensive care.

 

The Judge also reminded me that this case is in fact the post-RTM company bringing this claim, for dates prior to the RTM. I had mentioned it, but not made as big deal of it. Clearly that will change. Mind you, I am sure the Claimant can russle up some kind of assignment from the pre-RTM company to the post-RTM company, so the point is probably moot, but we will see. I promise you it won't have been done properly, but given he's told lies before (such as today) and one of the Directors isn't much better, I can see that being done "retrospectively".

 

Anyway, I asked across the Courtroom to the Claimant if he "could answer two questions: 1) When was the RTM company incorporated? July 2014. 2) Am I up to date with the RTM company? Yes! End of claim". He just looked at his feet.

 

The Judge went on to say that he needed evidence of all this, which was absent from the claim - that the Claimant should have sent in!

 

The Judge let me have a go at convincing him to lash it out, but he basically said this whole lot has gone on long enough and needs a proper resolution.

 

Then the next bit kind of irritated me. He went on to draft the order for 21 days for him, 21 days for me subsequent, and then, which is also going on the order, gave the Claimant a ten point plan in what he needs to do to bring his case properly. I wish the Judge would do my litigation for me!! I am the flipping Defendant, why on Earth the Judge is helping him get his case together is beyond me - I suspect somewhere in CPR 1 he would find his justification, given how long this has gone on.

 

Basically, nothings changed - no one ever had proper permission from the original LL to manage the building. And, significantly, I have it in writing from the current LL that the old-LL never employed them (the pre-RTM company) to manage the building. So he can bring whatever assignment from pre-RTM to post-RTM that he wants - in fact, thinking about it if he does formally transfer assets and liabilities from pre-RTM to post-RTM, even better - it means I can have a go at the post-RTM company for the money the (now wound up) pre-RTM company took off me. I'll hang him with his own rope, I'd love that.

 

All the claimant lies about defective leases where exactly that - and I think the Judge knew it when I told him the lease does contain provision for service charges, just not that they were payable to the Claimant, in any of his guises.

 

I'm probably into waffle mode now, I'll shut up.

 

Top and bottom of it is 21 days for him to get his case together and get something to me. After which, within 21 days, I can re-submit my application if his claim is still a pile of crap (which the Judge said he would put in the order - he said I would just need to write a letter saying that DDJ Presiding had said this was ok! Or, I can submit are detailed defence - which is quite nice, as I wanted to amend it anyway

 

I will post a full transcript from the Order when it arrives. I wasn't waiting round, it was half four and the traffic was building.

 

So what do we think?

 

Nice one guys.

 

Oh, yeah, I forgot to mention, I asked for longer to respond due to health grounds and the Judge said "Clearly you are very intelligent Mr FX, and have conducted yourself in an exemplary manner, I see no reason why you'll need the extra time. If you do, make an application with a letter from a Doctor". Which was fair enough I suppose, I am quite bright... NICE ONCE YOU LOT!! I'd be in a hostel without you.

 

I also went on to ask for wasted costs, but he said he's not prepared to give them to me at this stage. No harm in trying eh?

[AndyOrch]

Well done FX sounds like you had a good time ...I think its irrelevant the DJ advising them on how to present the next part...as it sounds like its claim is beyond correction and repair and the court has only allowed the extra time to finalise a strike out...see how/ if they respond.

 

Looking dead in the water from my perspective......well done a good day at the office.

 

Andy

[andydd]

The lease is the very first piece of evidence that the claimant should provide, it is the contract, without it nothing is owing, it's irrelevant if it's defective, it's the valid contract between the parties, there are ways to repair defective leases.

 

Yes it does sound good news, I assume the claimant is LiP too ?, maybe this is why the judge had been lenient ?

 

Not more you can do but carry on, maybe you could strike out after the 21 days if he case still makes no sense or not bother and just let it go to trial, although if its now on small track its too late for any sort of strike out plus you dont have the chance to claim costs (as its normally pre track allocation).

[DonkeyB]

The cracks! They grow! They widen! Well done.

[BlurredFX]

Hiya Guys,

 

Thanks everyone for the support and encouragement, much appreciated. It was kind of fun, just a pity the stakes are so high! I've stressed my self out all week over this lot, so I am going to leave it till Monday, and start having a look and think then. In one respect, there's not a lot I can do until I see his response. But, I want to be ahead of the curve with it, so I will cobble together some ideas, potential arguments, draft paragraphs, and areas I need to look further into. I should probably sort out the huge variety of daft invoices he has sent me as well. I will also be getting a section together detailing what a bleeding idiot he is - like the 2011 letter where he says they've decided not to do an interior or exterior decorating, despite what the lease says. Or the new windows that were proposed and agreed upon, and he was about to enter into contract for £70k worth of windows, till I pointed out we live in a conservation area and we need planning permission!!!

 

The Claimant isn't a LiP, he has two large offices and there are tens, probably hundreds of companies registered to his main office. I know he bought some older fella out - because it was the fella managing our flats and they wrote to us about the transfer of ownership. This is one point I will press home as well when we next go back into Court - I think the Judge may have thought he was a small time dude or something, you'd think so the way he was doing his litigation for him, so I need to dispel that illusion at the first opportunity! My suspicion, based on not a lot of evidence, is that he inherited some money and bought an existing business or two. But his two large offices and many many companies registered at his office should do that nicely.

 

Nice one everyone. I think he got the fright of his life, and 45 minutes of lectures off the Judge. He was out of there like greased lightening after the hearing, I tell ya!