Urgent CCJ Charging Order defence question. We applied for instalments first.

[Mike_hawk]

I'm not sure the court can grant an I.C.O pending redetermination...... 6 weeks from filing of N245 to receipting notice, seems an awfully long time.

[Mike_hawk]

You could refer to CPR and PD73 to check if anything relevant in your case, if you believe there may have been a procedural error you should bring it to the courts attention within your witness statement.

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part73#id4541824

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_part73#id4541905

[Mike_hawk]

One other thing to possibly consider.... you noted the following:

 

- Defendents are myself, my wife + another director we're not in contact with

 

Have the other side received payment from, or been granted security against the other party?

[Mike_hawk]

I'd be inclined to include anything you feel is relevant, anything within the rule containing 'must' is not exactly negotiable - try CPR73.3. It's difficult to see how an ico was granted 2 weeks prior to the application.

 

The redetermination forms the judgment and should be heard before the final co is granted. Section 2 of the N379 applies, there may have been a forthwith judgment but in abeyance of determination I'd argue the judgment has not yet been set down.

[Mike_hawk]

You can but I couldn't think of another way to state it; handed down, set down, ordered, ajudged..... hmmmmm, all carry the same meaning within the context of your statement I guess.

 

Re/Determination is probably best explained within part 14 [admissions 5.1 thur 6.2] - http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_part14

 

I don't think that would be the right way to argue the case [3rd defendant], possibly better placed to argue that you may be prejudiced by the lack of transparency to any other payments or reduction of judgment sum.

[Mike_hawk]

Probably a bit late but.......... you should only serve by fax or e-mail if you have their prior agreement they will accept.

 

tbh, I think you'll struggle to overcome a fco but if it looks like its not going your way you should at least argue for terms within any order..... ie, no order for sale within the next xx months/years, regular statement of account, dislcosure of any agreement with 3rd defendant.

 

It does give the impression that they are inclined to accept payments from 1 defendant and hold security of the others.

[Mike_hawk]

The judgment has been "set down" as you call it. .

 

Afternoon Gany

 

I don't believe that would be correct in the context of a c/o hearing, applications are heard in order of filing... redetermination could affect the outcome of the c/o [unlikely I know] but still a possibility. As far as I'm aware the effect of s.93 [2007 amendments to the charging order act] do not apply to s.53 of the c/o act until October so an instalment order should still be considered. The other side are attempting to enforce an order whilst awaiting the outcome of a judgment yet to be heard.

 

Still can't work out how the ico was granted or noted prior to the application? The only thing I can think of is a possible N24 hybrid type order but I thought the courts had distanced themselves from that approach.

Edited September 1, 2012 by Mike_hawk

[Mike_hawk]

Eddie, the instalment order only has to be 'considered'........ that's why it's important that you attend the hearing in the knowledge that the fco will likely be granted but you must request terms to protect yourself. No order for sale is a priority, although this is an app by the original creditor and they tend to stop action at security. You should also request disclosure of any other arrangement with the 3rd defendant as this could compromise the charge.

 

Joint rebuttal shouldn't be an issue, the court will consider the effect of the fco on all parties [section I of PD 73 should assist for reference]

[Mike_hawk]

Given that from 1 October charging orders can be granted even when an instalment judgment is up to date, it's pretty unlikely the court will refuse the FCO here.

 

Gaston........... no offence intended by why is it that neither you or Gany can actually take the time to read previous posts with the same information?

[Mike_hawk]

Hi Gany

 

Read back through the thread and your responses, maybe its the way I interpret your replies. I don't actually disagree with your position at post 21 [its within the quoted text], although we seem to have moved away from the difference in opinion of procedure at post 14.

 

Quite happy to engage in meaningful exchange but repetition is lost on me.

[Mike_hawk]

S.93 Commencement is here http://www.legislation.gov.uk/uksi/2012/1312/article/3/made

 

It's referred to in posts 19 and 21 but I've added the link below for reference:

 

http://www.legislation.gov.uk/ukpga/2007/15/section/93

 

Ideally separate witness statements should be served, but in this instance where you are co defendants with shared beneficial interest in the property I honestly can't see that the court will be concerned by a joint statement.

[Mike_hawk]

eddie

 

From reading your posts I think you're going to keep worrying about the w/s unless you do something, I really can't see the court dismissing the 'defence' but hopefully this suggestion should help settle your nerves;

 

______________________________________

 

Using the defence served on the other side as your template:

 

Copy the body of the statement into a w/s [assume you know the correct format?]...... do not make any material changes with the exception of the header amended to 'Witness statement - Final charging order hearing'.

 

Make 3 copies for each of you, each to sign your own copies as a statement of truth [6 statements in total]. Ensure there are 3 copies with your name and 3 with your wifes.

 

______________________________________

 

Draft a further short witness statement to the court, just a few lines will do;

 

Again, make 3 copies for each of you, each to sign your own copy as a statement of truth [6 statements in total]........ I'd suggest something along these lines, but really it's entirely up to you what you say as long as you cover all bases.

 

1. I am a litigant in person

 

2, Not conversant with the civil procedure rules both defendant parties to charging order hearing served a joint defence [enclosed Document xx] to charging order application.

 

3. I now understand that the correct procedure would be for each witness to file and serve separate statements.

 

4. In the event that the court cannot accept the joint defence pursuant to Practice direction 32.25(2), I respectfully request that the individual witness statement enclosed [Document xx] is substituted.

 

5. Copies of this and enclosed documents have been served on the claimant party

 

______________________________________

 

Take 1 copy of each for filing at court [that's 1 w/s to the court with your name on, 1 with your wifes name on, 1 joint defence, 1 each of the witness statement created from the joint defence] 5 pages in total for filing at the court.

______________________________________

 

Send an identical bundle to the claimant with a short covering letter stating the reason for service.

______________________________________

 

Practice direction referred to above is here http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_part32#IDA5YVJC

 

Defects in affidavits, witness statements and exhibits

 

25.1

 

Where:

(1) an affidavit,

 

(2) a witness statement, or

 

(3) an exhibit to either an affidavit or a witness statement,

 

does not comply with Part 32 or this practice direction in relation to its form, the court may refuse to admit it as evidence and may refuse to allow the costs arising from its preparation.

 

25.2

 

Permission to file a defective affidavit or witness statement or to use a defective exhibit may be obtained from a judge17 in the court where the case is proceeding.

[Mike_hawk]

No probs, although tbh I think you'd have been OK anyway.......... this is really a 20 minute fix just for your peace of mind.

 

One thing you should question at the hearing is the current status of the judgment value. This is all supposition until/if the claimant discloses otherwise but........ judgment value March at 15k, payments totalling £300.00 by application date in May would infer a repayment schedule of either 50 or 100 months. The latter is stretching it a bit but 50 months is reasonable enough for the court to consider against the c/o application.

 

I don't know the reason for the business relationship breakdown with the 3rd defendant but if at all possible it may prove useful to try to make contact and discuss.

[Mike_hawk]

I wouldn't change any of the text,whilst its a pain reading a change from 1st to 2nd person the reality is that the other side are seeking security of joint beneficial interest in the property. No matter how its drafted all other creditors 'should' be considered, the judge will take a balanced view, ask questions if necessary and interpret accordingly.

[Mike_hawk]

OK. Actually it's not a problem anyway as even though a witness statement might be written by 1 person, that person can still use we, us, etc

 

You can indeedy, think of it as writing a short story of events so that the court can better understand your position

[Mike_hawk]

Re making contact with the 3rd defendant, I can't see that happening.

 

 

No possibility of an intermediary involvement [family, friend etc] or are things too far down the road to consider? Appreciate it may be difficult but when faced with a challenge such as this it may prove worthwhile for both sides to make a little effort.

[Mike_hawk]

For 15k? I'd sell my granny....... joking, sorry nan

 

Wait on the hearing now. You've asked for and covered everything that you could in the circumstances. It really is a game of chance on the day when it falls to charging orders.

 

I think the thrust of any argument should be to protect yourself for the future, if you believe the hearing is moving away from you try to mitigate your exposure to any future enforcement and/or compounding of interest as best you can.

 

Would probably have shown you in a better light if you had serviced the order during the previous 6 months but it's a bit late in the day now. Work on what you have and remember to bite your tongue even if you don't like what you hear.

[Mike_hawk]

wait there, i've got a buyer. 10% broker fee though.

 

Lol, she's gone mate........ 15 years ago.......... god, does that make me a bad person

[Mike_hawk]

Thanks for all your input Mike.

 

I'd still like to know about the case law Ganymede mentioned, about instalments needing to be enough to pay off in lifetime of debtor. Not necessarily for this hearing, I just want to see the evidence if this really is true, as I find it hard to believe.

 

Honest answer, not aware of any case law............ I'm sure there probably is something persuasive [there always is] just not aware of it or where to point you.

[Mike_hawk]

Hi Ford

 

Do you have a link please mate, I remembered seeing a few posts [quite a while back] and considered the possibility of a N24 earlier but couldn't find anything relevant on here?

[Mike_hawk]

this one http://www.consumeractiongroup.co.uk/forum/showthread.php?337719-Hybrid-installment-orders-allowing-application-for-C-O-help-please

not a long thread, and prob not quite what you're looking for. but referenced s93.

 

Cheers Ford

 

Not sure what to say except ooooer!! Variable consent grafted to a judgment...... I honestly thought the courts had started to distance themselves from hybrids, there isn't a procedure, rule or S.I that covers it so I'd guess someone got mugged and it gradually winged its way down through the system from Northampton

[Mike_hawk]

Hi Eddie

 

As you say, not an unexpected result but at least you gave it a shot.

 

Were there any terms applied?

[Mike_hawk]

What happened with the app to vary?