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Enforcing a part 36 offer, Court order


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Hello everyone. I am new to this forum, but do need some urgent advice.

 

To cut a story. I won a high court partnership case against my ex girlfriend. I had made an early offer part 36. In which I offered her the amount she originally put into the partnership.

 

Our partnership ended and our relationship, when I found out that she had taken £59,000 out of our account. She also kept the partnership car that was worth £11,000.

 

For some reason she took me to court to end the partnership. On our first visit I explained to the judge the circumstances and it was transfered to the high Court.

 

I did not hear anything for 10 years, then had a knock on the door on christmas eve by a court bailiff. He handed me a summons from the courts in France saying My ex was going to sell the house I bought. She had said that When I bought the house in france she put in £5,000 and it was a partnership asset.

 

She said this to the English Courts but now said French law means that she owns half the house, although it was my Mortgage. Anyway it was bought indivise by mistake. To stop the French action I had try and open the 10 year old action she started against me, Luckily the Judge agreed.

 

My ex girlfriend strongly opposed the opening of the case even though she started it. I opened the High court action As andefendant, But it was the only way I could prove that she had stolen the Car And £50.00. My offer part 36 was I would give her £5,000.

 

But she had to stop the French action. Pay all me french Legal costs to date and take her name off the deeds an transfer it to my sole name only. She agreed on this in the end and had to pay most of my costs about £35,000.

 

Anyway she has not taken her name of the deeds despite meeting me in France me telling 3 Notaires and giving them the Offer and court order.

 

She does not sign for leeters and I get the back and emails sent to her on Facebook get ignored. She now lives in France. Can anybody please tell me hoe I can get her to conform with the part 36 offer and court order.

Edited by honeybee13
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Hello and welcome to CAG.

 

I'm sorry you haven't had any replies yet. This could be because it's the weekend or because your query is something that not many people here would know the answer to. I've put some paragraphs into what you posted in case it gets you more replies.

 

My best, HB

Illegitimi non carborundum

 

 

 

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You can't enforce a Part 36 offer unless it has been accepted.

 

What court order are you trying to enforce? The French one awarding you 35k legal costs in France?

 

What happened with the English litigation? Has it been formally discontinued or settled, or is it still going on?

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Thanks for the replies and correections to my layout.

 

My x statrted a county court action regarding a partnership dispute in 1996. I attended and the Judge agreed on my points and sent it to the High court. My x must have thought about it and with her council thought not to continue,

 

When we were together we bought a house in france, With all the costs i was short of £,3000 and money to buy furniture Total £5,000. Because of this she asked for her name to be put on the French deeds. although the mortgage was in my name only

 

!0 years went by and then had a summons from France saying my x was using the French law of indivise to sell the French house. The trouble was that I could not prove in France the money and assets she had taken from the partnership, which amounted to over £50,000. All income derived from the partnership, went into my x's bank account which went missing.

 

The only way I thought of proving that she had been paid for the French house was to try and open the English partnership Dispute that my X had started and not continued with. I knew she would have to show all the bank statements. I had all the books so I knew what should have been in the accounts but repeat there was more than £50,000 missing. If I could prove this in the High court, I could then show this to the French courts to prove she had been paid off.

 

A part 36 went in, saying i would give her back her loan of £5;000, not look into the missing money, as long as she agreed to removing her name from the French house deeds. Stopped all The French action and pay my French expenses, as there were 2 cases going on. One in France, which I was trying to stall while I proved my x had taken loads of partnership money in the High Court.

 

Anyway the French action was stopped. The High court judge issued an order. There is no time limit, but says each party must endeavour to provide assistance and supply all documents so that a transfer of names aan be organised. On the completion of the deeds being put in my sole name, I would give my x her £5,000.

 

So I have a part 36 offer and a Highcourt judges order to my x telling her what to do. Which has been accepted.

 

The problem is getting the French notaires in on the act. My x would have to come to a notaires office in France to sign. But they do not write letters like our Lawyers.

 

I have met and sent loads of letters and have kept the returns as refused. She now lives in France and the same thing happens.

 

AS far as I can tell a part 36 offer if accepted is always open as the High court action is stayed until performance of the part 36 is satisfied. If there is no compliance to the order you can ask the court to place sanctions on the person not comlying with the part 36 and order.

This is what I would like to know how do I tell the High court that my x is not complying. With the part 36 and Judges orders.

 

What forms do I need to fill in and send to court. There is no need to open another action as the original action is just stayed.

 

Any help would be great. I have given her a time limit response now, by email, as she refuses to accept letters.

Edited by biro
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If I understand correctly, you don't need to rely on the Part 36 offer anymore because you have a court order containing its terms. You are enforcing the court order not the underlying Part 36 offer and acceptance.

 

As your ex- lives in France you need to remember that any future court order would need to be enforced in France. You also need to remember that French real estate is a matter exclusively within the jurisdiction of the French legal system. If the property were in England you could get a District Judge to sign a land transfer form on her behalf and file this at the Land Registry to complete the conveyance but I don't know how it would work in France. If the ex does not cooperative I imagine you will have to file the English court order with the French courts and get them to formally enforce it before the notaries will complete the conveyance.

 

Under EU regulations known as the Brussels Regulation the French court should recognise and enforce the English court order as if it were a French court judgment, once you have followed the procedures set out in the regulations. The normal procedure is to apply to the relevant French court with a copy of the English judgment, a certificate in the form set out in the Brussels Regulation, translations prepred by an official translator in France and any other documents required by French law.

 

If the court order you have at the moment was agreed by your ex (i.e. it was a consent order she signed), then you can use an expedited procedure under the European Enforcement Order regulations. You would need to get a certificate from the English court using form N219. You would then give this to your French lawyers, who should be able to enforce in France as if it was a French court judgment. Have a read of the regulation here: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004R0805:EN:HTML. The Brussels Regs and EEO enforcement methods are both pretty similar and both would work, the advantage of doing it under the EEO is that it is more difficult to challenge EEO enforcment in the French courts.

 

Unfortunately I think you are going to have to instruct French lawyers. You will need to instruct an avocat, notaries are not lawyers and won't cut it for something like this. If your ex refuses to co-operative without court action I think you should be able to claim the costs of all this from her as part of the French enforcement proceedings. This would be expensive for her. If this is not possible under French law then you would have a claim against your ex for damages in England for breaching the English court order, but of course enforcing a damages award is another matter.

Edited by steampowered

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Thanks for the reply.

I have looked at the various methods of enforcing the court order agreement. Including the EEO.

 

The problem is that it seems for a money dept only. And not for a specific action.

 

I also do not understand on which form is needed first and to whom it is sent. I know that you need a certificate of the court order, but am clueless on how to start from the begining and carry it through with all the right forms.

 

I have always had a good Avocat and he has worked for me before, especially when she opened the French action. He was arguing my case in the French courts , saying that my x had had all the money shw was entitled to and it will only become obviouse once accounts had been taken in the English courts. Obviously the last 4 years of trading bank statements went missing from her. In the end after the costs were £80,000, she had to stop as she knew that under partnership law, she would only get back what she had put in as an asset. As this was only £5,000 she could not win.

 

I think that I will also need to know, I have the figures tucked away somewhere, what the mortgage repayment figures were when the partnership came to an end. But that is for the French courts if needed.

 

So to recap, it is not for a money order but for a specific action by her to satisfy the Order.

 

Biro.........................

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If EEO doesn't work for this then you will need to use the Brussels Regs.

 

You will need to make an application to the courts in France for a declaration of enforceability. For this you will need to check what documents are required with your French lawyer. The English system has a specific Civil Procedure Rule covering enforcement of EU judgments in England so I imagine there is something similar in France. There will be specific requirements (e.g. who qualifies as an official translator in France).

 

Have a read of CPR 74 and Practice Direction 74A. Assuming the Order came from the Chancery or Queen's Bench Division of the High Court, you will need to make an application to the court where judgment was issued. I think you have to do this under the procedure in CPR 23, which is an Application Notice form N244. You will need to attach a witness statement setting out the details required by CPR 74.13. You should get what is set out in paragraph 7.3 of the Practice Direction - a copy of the judgment with a certificate signed by a judge sealed with the court seal. You will then need to get a translation done, I believe this must be done by an 'official' translator in France, check with the French lawyer what is required.

 

The French courts won't do anything with proof of mortgage repayment - they will only enforce the court order as it stands.

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Thanks for the reply.

 

I understand the Notaires position in the legal system. It should be an easy task. 2 people go into a Notaires office, One of the persons say's I have been given £50,000, to take my name of the house deeds, can you please do the paperwork, so we can sign.

 

The good thing about the High court order, is that she cannot defend an action if I was to start a court case in France. This would be against the accepted high court Order schedule. So if my x contradicted and defended the French action she would be in contempt.

 

There is a problem that the French do not recognise an English partnership. The french court would ask for accounts on the input of each party to the house purchase. This may not happen if an EEO was used, as you say It is a done deed where my x has agreed on the terms of the order and schedule.

 

I still run a risk though that although my ex may not defend the French action, the French court may not recognise it because it was a partnership dispute, which as above they may throw out. If they do this then accounts would have to be prepared to show outlay by each person. The French courts do take this into concideration when someone calls for a division.

 

I would like to keep it in England and ask the high court to enforce the order. If this means my x has to come to England to explain herself, then It woud save me a lot of costs.

 

The problem I have is that I have been very ill the last 3 yeard with 3 cardiac arrests and after that lung cancer. I am fine now but it has taken me a long time to get myself fit physically and mentally. I can borrow money if needed but would rather keep the costs to a minimum as I have not worked for a long time.

 

It is also very hard for me to understand the wheres and whyfores of the legal process. Yes I can dowload a form, but i am ignorant as to what to do with them and it what order. Is it send 1 form in at a time or all of them and hope the court can make sense of them.

 

I cannot afford a lawyer, although I may speak to one for a half hour, to see what to do. But would prefer if somebody could itemize the forms and order which they have to be prepared in and the subsequent sending of forms and to whom.

 

Many thanks Biro....................

Edited by biro
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Unfortunately you cannot enforce this through the High Court. The High Court has no powers whatsoever over property in France. EU Regulation 44/2001 governs jurisdiction within the EU and it says "The following courts shall have exclusive jurisdiction, regardless of domicile: 1. in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Member State in which the property is situated."

 

The most you could do from England is sue her for damages in the High Court for breaching the court order. However, this is unlikely to get the result you want since it will be difficult to prove you have suffered quantifiable economic loss. Even if the High Court awarded you damages, if your girlfriend did not pay the award the High Court could not enforce the award in France. You would have to use mechanisms of enforcement under French law.

 

I do not think the thing about French law not recognising partnerships is a problem. This should not matter. The EU has created a system where judgments issued by one member state must be recognised and enforced by courts in other member states. Because the English court has already dealt with the dispute the French court is not allowed to re-open it, the matter is now lis pendens which means the French courts are not allowed to decide on any related claims. The French court is not allowed to examine the High Court order and must simply enforce it. The French court could refuse to enforce if it would be contradictory to French public policy or morals but this is not really applicable here. Of course I am just telling you what EU law says, I can't promise there will be no difficulties or delays in the French legal system.

 

I am sorry that is not the answer you are looking for, but we are dealing with French property here. If your ex won't co-operative I do not see any way of avoiding instructing French lawyers.

 

I can help you get the documents together for getting a certified copy of the judgment and Brussels Regulation certificate from the High Court for use in France, but if you want to go legal you should check exactly what is required from the French side of things with a French lawyer first.

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Thanks again for your input. I downloaded and printed out the regs about the EEO. They do seem to be on my side. am i right in that my ex has no right of appeal against the EEO. Or is it me that will have no right of appeal if the French courts court decide to not honour the High court Judgement.

 

I will probably change my avocat as I think it would be best if they could speak, read and understand the High court papers. I speak French but not fully conversant, so a meaning may get lost during a meeting.

 

I will be over there in about a months time so will arrange beforehand, I have given my ex another week to reply, but do not hold out much hope.

 

I really would be most gratefull if you could give me the way forward with the forms and certificates, It would be great if I could take them over with me, so I could get it started.

 

My x has probably heard about my bad health and is tactically being non co=operative. But as said earlier, I am to look at, quite normal and healthyish.

 

I am giving you tjhe wording of the Order and schedule in the next post. hopefully in a minute or 2.

 

Hearty thanks Biro. may take a bit longer.

Edited by biro
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[ATTACH=CONFIG]43005[/ATTACH][ATTACH=CONFIG]43004[/ATTACH]Please find Pdf of order, It may help with the EEO forms and certificate. I am going to phone the French Avocat to see the documents he would need. THe High court order may already be translated as my x had her own Avocate and would assume he would have had it translated for the French courts to end the action. I will look into this as it may save me money.

 

If you could please now let me know in which order and what forms are chonologically needed.

 

Many thanks Biro............

Edited by biro
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You will not find the answers you are looking for on CAG. This case is well beyond the expertise of anyone on here.

 

You really need to go an see a solicitor that specialises in French law.

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I was just asking how to start a court action in England against the non compliance of the said order. There are financial implacations regarding the French house. My ex holds under trust as a trustee. The problem is that it could cost me a lot of financial distress. I have since married and have been married for 12 years.

 

If I was to die, my ex would still be on the house deeds in France, so If the house was sold, my ex would receive half the proceeds. The house as it stands in France was a partnership asset and it was ordered by the High court that she has to take her name off. I could have sold it years ago, to raise capital for another venture, but cannot. So I would like to open a case or return to court to explain this in England, as I cannot even get my wifes name on the deeds. It is after all a High court matter and does include financial restraints on me and my family, while my x continues to defy the order.

Regards Biro............

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I can only help you with getting the certified judgment and certificate you will need from the High Court, not with the actual enforcement as this has to be done in France. The High Court simply does not have the power to enforce this order in France: enforcement is exclusively a matter for the local courts. In practice, I guess you are going to need something that a French notary is happy with (presumably they will want a French court order). Here is information on enforcement in France: http://ec.europa.eu/civiljustice/enforce_judgement/enforce_judgement_fra_en.htm#3.1.

 

You cannot use the EEO Regs for this because the EEO only applies to orders to pay a sum of money and not an order that the ex remove her name from the deeds (see Article 4). Sorry for confusing you, I should not have mentioned the EEO. Instead you need to use Regulation 44/2001 also known as the Brussels Regulation.

 

To get the certified judgment and certificate needed for enforcement in France, I believe you need to file an Application Notice N244 with the court that issued the judgment. The level of judge is Master, Registrar or District Judge (I would ask for registrar). In the box asking about the order you are asking for put something like 'An office copy of the order dated [x] together with a signed certificate and sealed with the Seal of the Senior Courts. This is requested to enable enforcement of the order in accordance with EU Regulation 44/2001 and paragraph 7.1 of the Practice Direction to CPR 74'.

 

I would attach a draft of the certificate to assist the court. Click the link at the bottom of the Practice Direction (http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_part74), put Annex V into a word document and complete it as best you can. You also need to attach a witness statement. This must include the details and attachments listed in CPR 74.13 (http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part74).

 

There is a second enforcement option. That is to sue your ex for damages in the High Court for breach of the court order. But even if you did get a money award you would still have to enforce it in France if she does not pay (though I guess enforcing a money award might be simpler than enforcing an order she take her name off the property). There are difficulties with this, especially as you might find it difficult to prove you have suffered loss.

 

By the way, did the legal costs she was ordered to pay you ever get paid? If not, perhaps this should be dealt with at the same time as you deal with the order she take her name off the deeds?

 

On a technical point, as far as I am aware the house cannot be held as a trust because there is no such thing as a trust in France. Trusts are a property law concept relying on a distrinction between "legal" ownership and "equitable" ownership. As far as I am aware France does not have a distinction between these two types of ownership and has no concept of a trust. In practice I imagine France has some other concept (perhaps contractual) which reach a similar result to a trust.

 

Realistically, enforcement in France is probably not something you will be able to do yourself. If your ex won't co-operate you are going to have to open enforcement proceedings in France, I do not see any way of avoiding that. This will cost you, but as far as I am aware legal costs are recoverable in French litigation so hopefully you will be able to recover them from your ex (in theory at least). One would hope that your ex would back down when sent a lawyer's letter explaining this, hopefully common sense will prevail unless she wants to end up paying thousands of euros for no good reason, but we shall see.

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I will start at the begining. I bought a house in France in 1989. I was £5,00 short this includes notaires fees and furniture left in the house. My ex lent me the money. The mortgage was in my sole name. When I signed the compte de vente, my ex said she wanted her name on the deeds because she put in £5,000. We ran a business together, but after 8 years I found out that she had taken about £50,000 fron the accounts. The bank accounts were in her name only. I left the house we lived in, in 1996. In 1997 she started a countycourt action against me to end the partnership and distribute the partnership assets. I attended and convinced the judge that she had taken far more than she had put in,

 

It was transfered to the high court. I was the defendant. I take heed of your signature comment that keep all documents. I had all the documents to prove the amount she had taken. I waited and waited but did not hear from the high court apart from a solicitors letter asking me if any dates needed to be avoided. I replied and said no. At the same time I received a letter from our French notaire saying she wanted to sell the house in France. I explained to the Notaire that there is a court case that my x started and listed all the money and assets my ex had taken to which she was not entitled.

 

 

In 2000 I married, But in 2006 christmas eve I had a summons for the French courts saying that my x wanted to sell the French house and that as an indivision I could not stop it. The other co owners allways have first refusal to buy out the others half. I contacted an Advocate and explained that my x had started a high court action in London but she has not continued with it as it would prove she had been paid for her half with the assets she falsely took.

 

I went to a good solicitor in Englan and showed him the French court action and asked if we could open up a 10 year old stayed action in the High court. He aplied for me and despite pleadings from my x's barister, the Judge agreed that it should go ahead, because of the money involved.

 

I made a part 36, in which I offered her back her original £5,000 and made it a stipulation that she takes her name of the French deeds and to stop the fRench action and not to start one again Anyway she fought back for a year with several visits to the High court. All the time i am trying to stall the French action, by saying we have to have the accounts from the high court to show the amount she had taken. The French courts did not like this as they do not recognise partnerships.

 

Anyway after a year and about £80,000 woth of costs, my x agreed to the part 36. She had to sell a house in England to cover the costs. She still had another house, without mortgage. Plus alot of money in the bank left to her by her parents.

 

On agreeing to my part 36 and High court order which stated the Notaire we had to use, I went to France and gave him all the paper work relating to the English action and the French action. I did not hear anything further. The Notaire had been a friend of my x and I, and had looked after his son in England. I thought he was in contact with my X.

 

After what seemed to long for the process , 2 years, i telephoned and found out he was retired. Without writing to me to inform me. I went to another Notaires in the sam town in France. They had all my papers as they were transfered to them. I again asked them to progress with the house deed change and gave them my X's French address as she had now moved over to France.

 

Despite this another 2 years went by. So I contacted another Notaire who was closer to my address in France agian showing him all the paperwork and Orders that may need translating. He said it would take 4 months but again after several visits to him, he just acts dumb. In trhe meean time my X has visited me twice in France and said she will adhere to the order but she does not. I have sent countless letters to her, which has been ignored and signed for letters have just been refused.

 

My x is on the electoral roll in England and still owns property.

 

Thanking you for your attention, Biro..............

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Just some more info. In 2012 the French were made under european convention, to accept trusts, as a legal entity They did not want to as they think it is a tax loophole.

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I doubt the notaries are able to do anything with a High Court order. The High Court has no jurisdiction in France. Until the High Court order has been through the enforcement procedure set out in the Brussels Regulation, it has no effect in France so is just toilet paper until that procedure has been completed. Notaries just administer legal documents so it sounds like the notaries you dealt with were completely in over their heads. Notaries are not lawyers and do not represent clients so I think you need to go directly to an avocat.

 

There is still no such thing as a trust in French law. The French now recognise the effect of foreign trusts (they had been trying to treat offshore trusts of money as transparent, so that the beneficiaries of the trust can be taxed). Under the Brussels Regulation, real estate is a matter exclusively for local law, so I think that even if there was a trust in England the property itself would have to be held under French law and not under a trust (trusts are how the English deal with joint ownership of land). However I believe the French courts should still recognise the High Court order but only once you have followed the procedure set out in the Brussels Regs.

 

Unfortunately I do not see any way to help you from England. I think you need to instruct an avocat to enforce the High Court order through the French courts. You could sue your ex for damages in England, and potentially enforce those damages against her English property... but you don't really want damages you just want to get her removed from the deeds of a property in France, which can only be done in France and only the French courts can force this if the ex does not cooperate. The English courts cannot get her removed from the deeds of French property.

 

Another option would be to bring committal proceedings against her for contempt of court for non-compliance with the court order. I wouldn't advise this as it is a bit of a road to nowhere. You could also try to sue her in the English court for damages for her non-compliance, perhaps for the rental value of the property since the date of the order if it is vacant... and if you get a damages award enforce that against her English property. However this is not a particularly straightforward claim, I think it would be simpler just to enforce through the French courts.

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Thanks again for your input to this problem. It just seems so ridiculous that you can have a High court order which you cannot inforce.

Even the French side is normally simple. If one person says that he does not want to be in indivise anymore, they visit a Notaire who draws up a new deed. While the buyer just gives the other half money.

For me it is just a simple matter of getting her into a Notaires office and say she has been paid for her half. My x can even do it by proxy.

 

So it looks like I will have to visit an Advocate and then claim all the costs from my x, through the High court.

 

As above strange how you can have an order and not enforce it. It is not a legal matter. my x just has to comr to a Notaires office, as per the order and sign papers.

 

Oh well. Thanks again

Biro............

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No worries, good luck.... hopefully she will see sense before more costs are incurred. Sounds like she is adopting the "head in sand" approach so hopefully a lawyer's letter will do the trick.

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