LSTB being cheeky? *** Application for Judgment/CO thrown out with costs***

[Catchleen]

Hi, my husband had a LSTB CC where they brought him to court but we settled out of court a couple of years ago. He has now received a general form of judgement where LSTB have made an application but without a hearing for us to pay the outstanding amount forthwith.

 

The court considers that this would not be appropriate. The judgement then states that the defendant has the right to have the order set aside/varied under rule 23.10, within 7 days.

 

We have been paying the agreed amount since the arrangement was put in place and no payments have been missed. I am thinking that LTSB are being really cheeky and trying their luck to start this court case again, when they really have no grounds to do so.

 

I've started to look at the N244 form and setting it aside, but why should we have to pay another fee of probably £75.00 when we've done nothing wrong and have not broken the agreement.

 

What if we do not send an application to set aside? Can anyone help me please?

Edited May 17, 2012 by citizenB
formatted for easier reading

[ims21]

Thread moved to Legal Issues

[AndyOrch]

Hi Catchleen

 

When you state that it was settled out of Court was this by way of a Consent or Tomlin Order?

 

 

Regards

 

Andy

[Catchleen]

Hi Andy,

 

I don't have all the paperwork in front of me at the moment, but I believe it was a consent not tomlin.

 

Thanks,

 

C

[AndyOrch]

The Court considers that its not appropriate.So devils advocate would they allow it on its merits or refuse.If you do not make application to set a side will it be allowed?

Your application to set a side the application can be made in this instance without hearing so at a cost of £45 I would advise you make application, just for security.The Court has already implied it should not be allowed as obviously no breach has been played against the Consent.

 

Regards

 

Andy

[Catchleen]

Thanks Andy for your response, that's been helpful.

 

Cheers, C

[robcag]

Hi Catchleen

 

I'm slightly confused by this, see my comments threaded below in red;

 

Hi, my husband had a LSTB CC where they brought him to court but we settled out of court a couple of years ago. He has now received a general form of judgement where LSTB have made an application but without a hearing for us to pay the outstanding amount forthwith. As I understand from that comment; LTSB made an application and requested 'without a hearing', you received a 'General form of judgment' which surely means the court has made it's decision?

 

The court considers that this would not be appropriate. The judgement then states that the defendant has the right to have the order set aside/varied under rule 23.10, within 7 days. It appears the court has made its decision and decided that LTSBs application has failed, or have I seriously misunderstood that? AFAIK (from my own experience) it's standard practice for you to be allowed to apply to have the order varied or set aside because the application/order was without a hearing. So if that is indeed the case, why would you want to apply to have the order set aside?

 

We have been paying the agreed amount since the arrangement was put in place and no payments have been missed. I am thinking that LTSB are being really cheeky and trying their luck to start this court case again, when they really have no grounds to do so.

 

I've started to look at the N244 form and setting it aside, but why should we have to pay another fee of probably £75.00 when we've done nothing wrong and have not broken the agreement.

 

What if we do not send an application to set aside? Can anyone help me please?

 

My apologies if I've got the wrong end of the stick here, I'm not legally qualified and nowhere near as knowledgeable as some of the other CAG members.

 

Cheers

Rob

[AndyOrch]

If its in the terms of the Consent Rob then they can proceed without the normal formalities as the Consent will facilitate this, providing there as been a breach in the consent, which there as not.

 

Regards

 

Andy

[robcag]

Thanks for pointing that out Andy, but surely doesn't the 'General form of judgment' mean that the court has made it's decision on LTSBs application, which AIUI has been refused by reason that it would not be appropriate?

 

Therefore why would the Defendant want to have the Order set aside? (Although there may be reasons to vary it).

 

Cheers

Rob

[AndyOrch]

The Court would not be aware that a breach had or not happened when a claim is stayed and encompassed within the terms of a Consent/Tomlin Order.Merely taking the Claimants application in process.Without actually seeing the details of said application and their reasoning for requesting judgment.The Court as however flagged to Catchleen that it would not be appropiate yet has allowed the application to proceed without hearing.Its part of the process that the defendant be allowed to set a side or vary the judgment, why the Court as reached this decision is anyones guess without further information.I advised to set a side as a safety net in the absence of all the details.

 

Regards

 

Andy

[robcag]

Hi Andy

 

Apologies for taking up your time with what may be a wild goose chase. I understand what you're saying in post #10 above and I mentioned in post #7 my understanding of the Defendant being allowed to apply to have the Order set aside or varied because the decision had been made without a hearing. That may be the crux of the matter in that it means a decision has been made.

 

As I said above, I may be getting hold of the wrong end of the stick, but I think we need some more information from Catchleen to clarify matters. Maybe even a scan of the document itself (with personal details obscured). What do you think?

 

Cheers

Rob

[Gaston Grimsdyke]

Sounds like LTSB want a charging order but the instalment judgment is preventing them applying, so they need it varied to a forthwith one. The court has decided that it is inappropriate for this to be dealt with without a hearing, so presumably has told LTSB to make a formal application on notice. There must have been some correspondence with the OP prior to LTSB doing this, they wouldn't just make this application out of the blue.

[robcag]

That certainly sounds feasible. But it still raises the question (to me at least) why the Defendant (Catchleens OH) would want to set aside the decision the court has come to as it appears to have gone against LTSB and appears (to me) to be a satisfactory outcome at this stage for the Defendant.

 

I still think this needs to be clarified by Catchleen.

 

Cheers

Rob

[Gaston Grimsdyke]

Yes agreed. The order just sounds like a direction to LTSB to apply on notice, no reason for the OP to challenge that particular order. If and when they apply to vary the order on notice then is the time for the OP to get involved.

[robcag]

I'm glad you agree, I also agree with your further comment.

 

Anyway, I think I've stirred this thread up enough and I hope I haven't upset Andy, in any case I could be completely wrong.

 

I'll stay out of this now unless we see some more info from Catchleen.

 

Cheers

Rob

[Gaston Grimsdyke]

Yes we're all second-guessing a bit here till the OP clarifies. Bet I'm right though ;-)

[Catchleen]

Hi everyone,

 

Thank you for your posts and feedback. Ive got the original paperwork and the consent order in front of me. I dont have access to a scanner at home but here are the details:

" By consent it is ordered: 1. As far as they relate to the parties, all further proceedings be stayed upon the terms agreed by the parties hereto and set forth in the schedule save for the purpose of enforcing the said terms for which purpose the parties be at liberty to apply."

Schedule: "1. The defendant agree to repay the claimant the total sum of X by monthly installments of X commencing on 1st of month, and on 1st of each month thereafter. 2. The level of repayments shall be reviewed every 6 months, with first review during XX, with a view to varying the level of payment if there is a material change in the defendant financial circumstances, and the parties may agree to increase or decrease the level of payment following a review. 3. The defendant shall supply the claimant with such financial particulars as may reasonably be requested for the purpose of a review. 4. That in the event of any default of payments of the schedule the claimant is at liberty to apply to the court to enter judgement against the defendant, plus costs. 5. That the above terms shall be in full and final settlement of all claims that any party shall have or may have against the others arising out of the others arising out of the matters in this action and this action only. "

 

The payments are being made on time and none have been missed. LTSB have not contacted us to review the payments and this is the first time we have heard from them.

 

I feel loathed to pay a court fee when we haven't defauled on the consent order! But if I'm missing a point, I'm grateful for any help and guidance. Cheers C x

Edited May 18, 2012 by Catchleen

[robcag]

Hi Catchleen

 

My comments weren't concerned with the consent order but with the recent 'General form of judgment' which you referred to at the beginning of the thread, and which you were considering applying to set aside. If you re-read the thread you should be able to understand what I was getting at.

 

It is details of that document which interests me (and I think others) if you could post it up. There is probably (if I'm right) no need to set aside,

 

Cheers

Rob

[Catchleen]

Ah yes, that would make sense!! Here it is:

"Before DJ X ...

Order upon application but without a hearing.

Upon the application of the claimant but without a hearing, the court considering that this would not be appropriate.

It is ordered that

1. There be judgement for the claimant against the defendant in the sum of £X payable forthwith."

 

 

"Because this order has been made by the court without hearing representations of the defendant, the defendant has the right pursuant to rule 23.10 to have the order set aside or varied. The defendant must send or deliver the application to the court to arrive within 7 days of service of this order."

 

Thanks,

 

C

[Guest]

there you go. as andyorch suggested, apply to set aside/vary the order. # within 7 days #

Edited May 17, 2012 by Ford

[robcag]

 

It is ordered that

1. There be judgement for the claimant against the defendant in the sum of £X payable forthwith."

 

 

That little snippet of information (unfortunately missing from the opening post) appears to throw a different light on what my thoughts were. It looks like we may have to dig deeper and you may well need to apply for a set aside contrary to what I had been hoping.

 

Following Andy's comments I don't think you should have any difficulties getting this Order set aside if there have been no missed payments.

 

I'm off out in 5 minutes (already late!) but I'll try and remember to look in again tomorrow to see if there are any more comments.

 

Cheers

Rob

[Catchleen]

Thank you for your help. I'll download the N244 form tomorrow and make a start on the details. I'm thinking the main reason for asking for a set aside is that we have been making the payments as agreed, we are not in a position to pay the amount in one go and asking us to do so would be a waste of the courts time. If there is anything else I should be including, I'd appreciate the input.

 

Cheers,

 

Catchleen

[Guest]

catchleen

if you want to look into the technicalities of their application and the order see the civil procedure rules eg rule 23.8 ©, 23.9 etc and any relevant practice direction etc. 23.8© explains the '......court considering that this would not be appropriate' statement re no hearing, and so on.

Edited May 17, 2012 by Ford

[AndyOrch]

The only breach here is one made by the Claimant who has broke the agreement and applied for Judgment.Garston touched on it and confirmed my initial thought,s that the Claimant is after a forthwith to enable the application of a Charging Order.However they are locked in to the consent order and are misleading the Court and the Defendant. Shameful!

 

Regards

 

Andy

 

P.S Rob you have not upset me, I admire your enquiring train of questioning, that's what CAG is all about.

[Guest]

just goes to show, as op says, how 'cheeky' they are. and that's being polite. snakes. what weight is a consent order then if they feel that they can just apply for and possibly get judgment despite no arrears/default. and the courts just go ahead despite.

Edited May 18, 2012 by Ford