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I owe legal costs- Judgement Creditor charging daily interest.

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Hello!

 

I went to court with my neighbour over a land dispute. I had to withdraw from the trial because I am deaf and the audio loop wasn't working, but the Judge refused to adjourn...

 

This is probably a whole other area, however, the neighbour was awarded costs of £23k and has now placed an Interim Charging Order on our jointly mortgaged house. My husband is not the debtor.

 

I want to know if I can argue that the Award is unfair, not just because of what happened in court, but also because it includes a 100% success fee, which I feel they are not entitled to because I did not receive the Part 36 Offer which the neighbour's lawyers said they sent to me prior to trial. They are unable to prove I received it as they only sent by first class post.

 

The hearing to decide whether the Charging Order is to be made final is in August, and I wonder if anyone can advise what I should do if I wish to object to the award for costs.

 

My husband will object to the Charging Order. What argument should he provide, please?

 

There is little equity in the property, as there is a lot of work which needs doing, including subsidence.

 

The Judge was biased and failed to adjourn when it was discovered that the Audio Loop necessary for me to participate in the Trial, was not working.

 

He instructed the room to shout and speak slowly for my benefit.

None did as they were all the opponents witnesses.

All of what they said under cross examination was of no consequence.

 

I entered into litigation after much studying, and was confident of success.

What went wrong?

I am now being taken to court by my opponent for his costs.. £23k..

He is trying for a Charging Order, too.

Edited by dx100uk
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Hi Dookist,

 

These cases are extremely difficult and you really should instruct a good barrister to act for you if you can afford it mainly because they won't take any nonsense from a judge and they will be familiar with case law. Would this be a possibility for you?

 

I would appeal against it all as you were unfairly disadvantaged at the Hearing.

 

Your husband can of course object to the Charging Order too.

 

Do you have any young children? Even if they do manage to get a Charging Order you can ask that this cannot be effected until the youngest child leaves full-time education and generally judges will agree to this.

 

DD

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Hi,

 

This is a bit of a mess can I ask a few questions please:

 

1) How deaf are you could you not hear anything at all?

 

2) Did you not ask that others spoke up?

 

3) Would you have accepted the Part 36 offer if you had received it?

 

4) Did you or the other side have legal representation at the hearing?

 

You need to make sure you do things in the right order.

 

Do you want to appeal the original decision at trial? When was this?

 

Were costs summarily assessed on the day of the trial?

 

The FCO hearing is not the appropriate place to raise issues from the trial or the costs order. The judge won't go into anything other than the FCO which will more or less be automatically granted I'm afraid.

 

Sorry for so many questions but you missed key information from your original post.

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Hello... Many apologies for the lateness... I have been running around in circles and had forgotten about this post...

 

At the time of the trial I was awaiting an NHS appointment to fit two hearing aids...

I have severe hearing loss...

At some frequencies I can only hear at 80dB..

It is worse in a soundproofed environment, as the acoustics don't bounce the sound.

 

I did complain about not being able to hear,

i told the judge I felt unable to participate fully and it is obvious from the court transcript that I was becoming very confused.

I can only hear vowel sounds,

so try to guess what is being said.

.. this is quite common with people who have been deaf for a very long while.

 

At one point I asked to sit nearer to my opponent's counsel, and the judge refused.

I felt that he was most definitely biased, even before the trial.

 

At a site visit the day before the hearing,

he arrived together with my opponent and his counsel,

which I thought odd,

as they would have been able to comment on the case without me being present,

and when the other two were in discussion,

he asked me (in an aside) why I thought I could just take somebody else's land.

 

I told him it was a rule of Adverse Possession, then he said, 'But even so....'

Then trailed off and I did not catch the rest.

 

I don't know if I would have accepted the Part 36, as I thought I had a very strong case.

 

I initially had legal advice to set up the Application to Land Registry. I told my opponent at least SIX months in advance of the intended application. He could have legally started proceedings to have me removed from the land at that point, but chose not to, for whatever reason.

 

Neither did he bother to get any legal advice until six months prior to the trial, and then his lawyers managed to create a bill of nearly £40,000...

 

As my own advice over two years amounted to £1,400 and it was a very simple case, I wasn't expecting such huge legal costs.

 

It was because I thought we were on an even footing as regards to the costs that I felt confident enough to go ahead. I would never have had the courage to do so otherwise.

 

There was no actual decision made at trial, as I withdrew under duress.

 

I appealed the next day for permission to set aside my decision to withdraw and continue with the trial, but this was refused, by the same judge who presided at the trial.

 

Then there was an oral hearing, which I was told I wasn't actually entitled to because of the new rules, but which they allowed anyway, although it seemed as though they were just going through the motions and they said I had brought no new evidence, and refused my appeal again.

 

I am not sure what new evidence was required, though, as I pointed out some serious procedural errors relating to LR rules which were not addressed prior to the Trial.

 

On withdrawing, the costs were discussed, with the judge saying that mynopponent's costs were "over the top and at least 2-3 times what he would have expected" he also queried the 100% Success fee, as there had been changes in the rules.

 

As far as I know, my opponents lawyers should have served a Form N251 for this, but I am not aware whether it was received by the court in time, if at all. It was not in the trial bundle.

 

I understand that only a Restriction rather than a full CO can be placed on a jointly mortgaged property as my husband is not the debtor...

 

I will try for pro bono help, and apply for a set aside, I think....as you say, it is a huge mess...

 

I had a legal right to the land, initially as it was given to me by the previous landowner because of an agreement we had.

Unfortunately, he died before the transfer of the land.

 

I was told by my solicitor that there was something called a Proprietary Estoppel,

and that this was enough to entitle me to make the application to Land Registry,

but notwithstanding,

 

I had occupied the land for 12 years and should have been able to claim Adverse Possession through the current landowner's acquiescence, but this was ignored by the Judge.

 

Sorry for not replying earlier... I can hardly think straight at the moment!

 

If I had been able to afford a barrister in the first place, we wouldn't be having this conversation...

My lawyers quoted £400 per hour, so I had to decline... Just in case I lost!

 

Apparently, a Charge cannot be placed on the property, only a Restriction as it is jointly mortgaged... Which is something of a relief at least...

 

I still have to prepare an argument, though as the costs are huge, and I have no money or equity.

 

I will be so glad when this is done and dusted...

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hi dookist

when you say you 'appealed' yr decision to withdraw, what did you do, did you apply for a set aside of the courts decision, or was it a formal appeal?

and, what was the oral hearing you mentioned you had after being denied permission to set aside/appeal, was that a formal appeal?

have you made a formal appeal (not a set aside) app'n?

did you raise any human rights act arguments (eg re no fair trial re not being able to hear in court due to the loop not working) in any of yr app'n?


IMO

:-):rant:

 

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http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Ch/2012/63.html&query=Mark+and+Levy+and+(Trustee+and+in+and+Bankruptcy+and+of+and+Ellis-Carr)+and+v+and+Ellis-Carr&method=boolean

 

See the above case, in particular paragraphs 30 to 37 as regards adjournment at short notice on medical grounds.

 

Further, see CPR Pt 39 r.39.3(3) as regards an application to set aside the judgment for costs on the grounds that, notwithstanding you being in attendance at the handing down of that judgment, the court was fully aware of your hearing inability and that the audio loop was not working at the trial and so you were deprived of your right to a fair trial because you were unreasonably denied a reasonable opportunity to put your case.

 

 

The judge’s decision was plainly wrong and he should have granted your request to adjourn the matter, he erred in this respect and in doing so violated your right under Art.6.1 ECHR.

 

Did you withdraw your proprietary estopple claim on the land at the trial solely because of your hearing impairment and the fact that the audio loop was not working at that time?

 

Do you still have faith in your case?

 

Can you scan in a copy of the Order in respect of the award for costs to your opponent please, minus all personal details?

 

Adjourning hearings

3.1.3 In determining whether to grant an adjournment the court must have regard to the overriding objective.

 

 

Therefore the court should deal with appellant's case in a manner which saves expense, is proportionate to the amount of money involved and allocates to it an appropriate share of the court's resources (Boyd & Hutchinson (A Firm) v Foenander [2003] EWCA Civ 1516; October 23, 2003, unrep., CA (court proceeding to hear appeal where appellant made late application for adjournment on basis that it would refuse an adjournment if it concluded that the appeal had no prospect of success, rather than simply putting the point off to a future occasion)).

 

 

For an example of circumstances in which a trial judge's (1) refusal to grant a defendant an adjournment of a trial, with the result that the trial proceeded in their absence, and (2) their subsequent refusal to set aside that judgment under r.39.3(3), were upheld on appeal, see National Westminster Bank v Aaronson [2004] EWHC 618; March 9, 2004, unrep. (Royce J.) (neither decision exceeded the generous ambit within which a reasonable disagreement is possible).

 

A refusal to adjourn a hearing pursuant to r.3.1(2)(b) was unsuccessfully challenged in Daisystar Ltd v Woolwich Plc March 16, 2000, unrep., CA. See also Lloyds Bank Plc v Dix 2000; October 26, 2000, unrep., CA (adjournment would have made no material difference to the outcome of the litigation in view of the weakness of the appellants' case).

 

 

Where a litigant in person requests an adjournment on the ground of ill-health the court should be slow to refuse, provided that it is their first request and their case has some prospect of success: Fox v Graham Group Ltd The Times, August 3, 2001, Neuberger J.; as to the further proceedings in that case, see Fox v Graham Group Ltd [2002] EWCA Civ 1124.

 

 

In Bowden v Homerton University Hospital NHS Foundation Trust [2012] EWCA Civ 245, liability had been admitted and trial on quantum was fixed to take place on January 12, 2012. On December 21, 2011 an order was made that the claimant's solicitors come off the record. On December 29, 2011 the claimant, acting as a litigant in person, issued an application to adjourn the trial to allow him to obtain fresh representation.

 

 

The judge refused that application on January 4, 2012. The Court of Appeal held that the judge had failed to give adequate weight in the balancing of prejudice to the extremely difficult position that the claimant would be in if he had to represent himself. The overriding factor was the dilemma into which the claimant had been placed shortly before Christmas in circumstances which the judge expressly said were not his fault.

 

Generally, no appeal from the decision of a court may be made without permission. Rule 52.3(2) states that, where an application for permission to appeal may or should be made to the lower court, it is to be made at the hearing at which the decision to be appealed against is made.

 

Godzilla

Kind regards

The Mould

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Thread moved to General legal Issues.

 

Regards

 

Andy


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I was a Litigant In Person and I withdrew from the two day trial halfway through proceedings because I was unable to hear what was being asked and getting confused with the cross examination questions and I made a mistake with one of my answers.

 

No decision had been made, although the Judge at this point told me I was likely to lose the case, because of the answer I had given, so under duress, and the anxiety I felt at being unable to participate fully because I unable to hear properly, I made the decision to withdraw.

 

The next day I realised I had made a serious mistake by withdrawing, and I asked the court to set aside my decision to withdraw, but this was refused. I was allowed an oral hearing, but again permission to set aside my decision to withdraw was refused.

 

I do not understand what you mean by a formal appeal... I had no lawyer to guide me through this... So I have probably made mistakes in trying to argue my case.

 

Many thanks for your reply...

 

I am not sure whether I mentioned that I was not only hard of hearing, but also a Litigant In Person?

 

I truly felt that the Judge was biased against me throughout, as I told him prior to the Trial that I was awaiting two hearing aids to be fitted, and I asked him to check for himself whether the Audio loop was working, but he refused to even try it.

 

My opponents counsel even suggested that I was not deaf and I had provided no proof... I had in fact contacted the court several times prior to the trial to request the audio equipment, and even travelled there twice to ensure that it would be available. I obviously have proof if it was needed, as I have evidence from my hospital appointments and GP history going back to childhood.

 

I became confused under cross examination and answered the estoppel question incorrectly, saying that I did not know at the time of the landowner's death that an estoppel arose, because it was not established whether assets had been frozen because of pending bankruptcy.

 

The judge then cast doubt on my argument about estoppel, saying that I had kept my arrangement with the previous landowner a secret and had not made the new owner aware of it.

 

Absolutely untrue, my opponent, whose garden is alongside the land was fully aware of the situation, as I kept the previous landowner's pig on there for many years.

 

It is completely true that I had an arrangement with the previous landowner who, when he sold our house to us, was unable to locate where our septic tank lay... When we found it just outside of our boundary fence, the owner promised he would transfer that land to us following a trip abroad, and I offered to take care of his farm animals at my own expense in return, as he was not charging us for the extra land.

 

Unfortunately, the landowner died 3 months later whilst still abroad, so the transfer did not take place, though I continued to use that part of his land as part of my garden for a further 12 years and then made the application to Land Registry for Adverse Possession.

 

The small piece of land in question was part of a larger 6 acre field which was eventually sold to my opponent, who did not seem to have an interest in the part I was using, but objected when I made the application to Land Registry.

 

He made his objection by way of Form NAP, but it was incorrectly filled in, so he should not have been able to rely on para 5 of schedule 6, of the Land Registry Act, 2002, and after the expiration of 65 working days, the land should have automatically transferred to me.

 

However, this was not noticed by the Judge at the time of the trial, even though the incorrectly filled NAP form was included in the Trial bundle and the Judge should had noticed the mistake.

 

I only realised the implications of this after the hearing, and although I did bring it to the court's attention as being a serious procedural error, along with the fact I was not served the Part 36 offer, it did not make any difference to their decision in refusing my appeal.

 

So, despite a lot of unfairness, I now have to pay my opponent's costs, and he has asked for a Charging Order on our property.

 

There is a hearing on 18th August, and I am not sure how to proceed, especially as I still have complete faith in the validity of my case and believe I would have been successful, had I been represented.

 

I have applied for pro bono help, but this is still to be agreed, and time is running out for me.

 

I do not have a scanner, but I may be able to send the Judge's award for costs by way of an attachment to an email.

 

What does this mean, please? I find the site quite difficult to navigate...

 

Hello again, Godzilla,

 

The info you sent was very useful, thank you!

 

I would add that I have further matter to add regarding my opponent. It is of a serious nature, but I can't send a private message yet, apparently, as I am new to the site.

 

I have told DonkeyB, though, who has my email address and my permission to forward it to you.

 

Very kind regards, Dookist.

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It is preferred that all advice is kept on the forum...please refrain from using others to forward messages and email off forum.

 

Regards

 

Andy


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Afternoon Dookist. Suggest you simply state the facts – perhaps generalised.

 

For info, I chatted online to Dookist about this through a social media channel – I suggested using CAG and, lo and behold, by coincidence Dookist already had a thread which I bumped.


“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

If a Cagger helps you, click their star. Better still, make a donation however small, so that CAG can continue to help others.

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http://www.bailii.org/ew/cases/EWCA/Civ/2002/1040.html

 

YunezTeinaz v London Borough of Wandsworth [2002] EWCACiv 1040 is a key authority on adjournment at short notice on medical grounds where Lord Justice Peter Gibson and Lady Justice Arden said:

LORD JUSTICE PETER GIBSON:

 

 

[*]“Before I consider these points in turn, I would make some general observations on adjournments.

Every tribunal or court has a discretion to grant an adjournment, and the exercise of such a discretion, going as it does to the management of a case, is one with which an appellate body is slow to interfere and can only interfere on limited grounds, as has repeatedly been recognised.

 

But one recognised ground for interference is where the tribunal or court exercising the discretion takes into account some matter which it ought not to have taken into account: see, for example, Bastick v James Lane Ltd [1979] ICR 778 at 782 in the judgment of Arnold J giving the judgment of the EAT (approved as it was in Carter v Credit Change Ltd 1980 1 All E.R 252 at page 257 per Lord Justice Stephenson, with whom Cumming-Bruce and Bridge LJJ agreed).

 

The appellate body, in concluding whether the exercise of discretion is thus vitiated, inevitably has to make a judgment on whether that matter should have been taken into account. That is not to usurp the function of the lower tribunal or court: that is a necessary part of the function of the reviewing body.

 

Were it otherwise, no appellate body could find that a discretion was wrongly exercised through the tribunal or court taking into account a consideration which it should not have taken into account or, by the like token, through failing to take into account a matter which it should have taken into account. Although an adjournment is a discretionary matter, some adjournments must be granted if not to do so amounts to a denial of justice.

 

Where the consequences of the refusal of an adjournment are severe, such as where it will lead to the dismissal of the proceedings, the tribunal or court must be particularly careful not to cause an injustice to the litigant seeking an adjournment. As was said by AtkinLJ in Maxwell v Keun [1928] 1 KB 645 at page 653 on adjournments in ordinary civil actions:

 

"I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the Court has power to review such an order, and it is, to my mind, its duty to do so."

 

[*]A litigant whose presence is needed for the fair trial of a case, but who is unable to be present through no fault of his own, will usually have to be granted an adjournment, however inconvenient it may be to the tribunal or court and to the other parties. That litigant's right to a fair trial under Article 6 of the European Convention on Human Rights demands nothing less. But the tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine, and the onus is on the applicant for an adjournment to prove the need for such an adjournment.

 

 

  1. If there is some evidence that a litigant is unfit to attend, in particular if there is evidence that on medical grounds the litigant has been advised by a qualified person not to attend, but the tribunal or court has doubts as to whether the evidence is genuine or sufficient, the tribunal or court has a discretion whether or not to give a direction such as would enable the doubts to be resolved. Thus, one possibility is to direct that further evidence be provided promptly. Another is that the party seeking the adjournment should be invited to authorise the legal representatives for the other side to have access to the doctor giving the advice in question. The advocates on both sides can do their part in assisting the tribunal faced with such a problem to achieve a just result. I do not say that a tribunal or court necessarily makes any error of law in not taking such steps. All must depend on the particular circumstances of the case. I make these comments in recognition of the fact that applications for an adjournment on the basis of a medical certificate may present difficult problems requiring practical solutions if justice is to be achieved”.
     
    LADY JUSTICE ARDEN :

 

  1. I agree with Peter Gibson LJ that applications for adjournment may raise difficult problems requiring practical solution. While any tribunal will naturally want to be satisfied as to the basis of any last minute application for an adjournment and will be anxious not to waste costs and scarce tribunal time or to cause inconvenience to the parties and their witnesses, it may be that in future cases like this a tribunal or advocates for either party could suggest the making of further enquiries and a very short adjournment for this purpose. I am not, of course, saying that that course would necessarily have assisted in this case, but it may be helpful to advocates and tribunals to bear this point in mind in a future case.

 

  1. No reference was made in argument to Article 6 of the European Convention on Human Rights, which was incorporated into our domestic law with effect from 2nd October 2000, that is after the decision of the Employment Tribunal in this case. Article 6 guarantees to everyone in the determination of his civil rights and obligations the right to a fair and public hearing within a reasonable time. I do not think that Article 6 added anything to the argument in this case, but it does underscore the need to approach applications to adjourn on the grounds of applicant's health with great care. As the President put it in the Employment Appeal Tribunal in this case:

  2. "If the adjournment was improper then Article 6 would only strengthen the case for the merits decision arrived at in Dr Teinaz's absence being set aside."
     
    Kind regards
     
    The Mould

 

 

For the record, DonkeyB does not have any personal contact details of mine and I do not have a pm facility.

 

Kind regards

The Mould

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Aahh...ok! Sorry for confusion... I am still trying to get my head around the way the site works...

 

 

Ok... Am new to the rules...!

 

I called you Godzilla last time... So sorry!

 

Thank you for this article... It would appear that the Judge should have at least adjourned and asked me to provide evidence of my deafness, which I could easily have done, having only a few weeks previously been given a hearing test which proved considerable loss in both ears, for which I was consequently given an appointment to have two hearing aids fitted.

 

There is no doubt, in my opinion, that this lead to an unfair trial, especially as a Litigant In Person, unaccompanied on the day, so unable to keep up with proceedings.

 

Much of what I now know of the hearing has been determined only through the reading of the court transcript.

 

For instance, I did not hear the Judge say that I had "kept secret my arrangement with the previous landowner", or I would have argued that this simply was not true. The Judge took my silence to be an admission of the truth of his his accusation, obviously, which is why he then went on to say that I was "very likely to lose my case".

 

This remark was the deciding factor which caused me to withdraw after struggling for several hours. I did not want to go through more of the same the next day, especially as costs were mounting. I felt the Judge had made his decision, even though at this point he invited me to provide further evidence, but adding that there was unlikely to be anything I could say that would change his mind.

 

I have been told that my best option is to try and set aside the hearing, but will need expert advice in wording my argument.

 

Hello DonkeyB!

 

I am struggling here... I am quite confused... So sorry!

 

Must try harder... By way of an excuse, my anxiety meds are fogging my brain somewhat...

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Nope, no external contact other than my coincidentally trying to help Dookist in lumps of 140 characters... not easy, especially as this field of property and appeals is not my strong point...

 

However, the key issue to address is this: What can Dookist realistically achieve in terms of getting this judgment appealed or set aside? What is the process?


“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

If a Cagger helps you, click their star. Better still, make a donation however small, so that CAG can continue to help others.

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OK Dookist, don’t worry about being new to this site or being new to civil procedure.

 

As regards the hearing for the Final Charging Order in August, you could make an application (form N244) to the Court dealing with that and request that the Court stay those proceedings pending the outcome of your appeal against the judgment. The fee would be £55 without a hearing.

 

And while you are waiting for the Court to make its decision on that application, both you and your partner should start preparing your witness statements in opposition of the Final Charging Order, so that you have them ready in plenty of time to file to the Court and serve a copy of the same on the Claimant (your opponent from the trial) in case the Court decides that it will not grant a stay in those proceedings.

 

As regards the trial, did the trial judge refuse you permission to appeal his decision or is it the case that he dismissed your application to set aside your withdrawal from those proceedings?

 

Come back on the above my dear fellow and we shall see what can be done to help you with this matter.

 

Godzilla (this is a phrase I often say which in my world means all things good come from the heart that no man can make, Godzilla is a good thing then, bestowed upon you)

 

Kind regards

The Mould

 

 

Nope, no external contact other than my coincidentally trying to help Dookist in lumps of 140 characters... not easy, especially as this field of property and appeals is not my strong point...

 

However, the key issue to address is this: What can Dookist realistically achieve in terms of getting this judgment appealed or set aside? What is the process?

 

 

 

Will try and answer that Donkey after Dookist has replied to my recent post. CPR Pt 52 Appeals is the process.

 

 

How is the swamp these days Donkey?

 

 

Kind regards

 

 

The Mould

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Thank you Mould.

 

The swamp is being drained, alas, according to the politicians. I’m back in the barn.


“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

If a Cagger helps you, click their star. Better still, make a donation however small, so that CAG can continue to help others.

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With a barn full of carrots, so better off than being with the politicians.

 

 

Kind regards

 

 

The Mould

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The sure has gone all weird again! Just getting code...arrgh!!

 

Hello Mould!

 

Ok... Trying again... But the writing has gone really small and I can only just read it....

 

I withdrew before the Judge had made any decision at Trial... The next day, realising my mistake, I asked the court permission to set aside my decision to withdraw and continue with trial, but Judge refused... Is that the same as it being dismissed?

 

Sorry for being a bit simple, but it is such a mess, I don't know where I am... Would be a lot easier with a lawyer... Completely understand why they charge so much money now. What with all the Latin and what not... We didn't take Latin at Secondary Modern!

 

This is all so hard, and won't bring the land back- I believe the landowner is trying to sell it, but is now harassing me because my tank is on the land...

 

We have been trying for the last 6 months to sell our house as we have not been able to pay the mortgage since my husband lost his regular salary.

 

We recently found a buyer and were about to exchange contracts when my neighbour threatened our buyers, saying that if they did not buy the land (for a hugely inflated price) he would prosecute them for the 'leaking' septic tank... They withdrew from the sale, such was his threatening tone.

 

I have evidence of what exactly was said, both by email from my estate agent and by text from the buyers themselves. I called the police, but they have said my evidence is hearsay.

 

I doesn't improve matters, but may go against him at court.

 

The man is a monster, he interfered with my main witness and included fraudulent documents in his evidence amongst other stuff... But we didn't get that far, so I was unable to tell the Judge about his lies.

 

He even paid an estate agent to reveal the sealed bids when I was trying to buy the land from the previous landowner... He admitted it to me, saying that mine was the highest bid, and he was annoyed that he had had to match it!

 

The other thing is that my husband lives and works abroad. We have had marital problems over the years, and he is not in the UK very often.

 

He was not part of the legal dispute with our neighbour, is not the debtor and refuses to get involved in this, so I will have to act for him with regard to the CO.

 

I have never paid anything towards our mortgage, and have not worked since we were married more than 40 years ago.

 

Now we have severe financial problems to add to the worry, no savings, no equities, no pensions... I am receiving ESA, so have a very limited income.

 

I don't know if this make everything clearer or not... I would never have entered into this if I had known how ill it would make me...but I only did it because I knew we would have problems if our tank was on someone else's land...

 

Many thanks again.

 

Kind regards,

 

Dookist.

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If the case was not judged, surely you effectively withdrew or discontinued, and therefore can start again?

 

The costs issue is a separate matter, not related to winning or losing at present.


“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

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http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090325/thorn-1.htm

Dookist the above case is the leading authority on the doctrine of proprietary estoppel and the highest authority in England and Wales, you can rely on this judgment for your proprietary estoppel claim. The House of Lords has since been replaced by the Supreme Court, but the judgment in that case still remains as the highest authority.

If you withdrew your claim then the matter has not been formally adjudicated on, it is not, therefore res judicata (as solicitors say in Latin) and so I believe that you can re-issue your claim through the Court process again without the need to obtain permission from the Court and without the need to seek permission to appeal.

In this respect, you may be able to rely on the above as grounds to make an application (form N244) to the Court to stay the proceedings relating to the Final Charging Order pending the outcome of your proprietary estoppel claim on the land.

Your husband must respond by witness statement to the Final Charging Order and request that it be allowed in those proceedings in his absence due to him not residing within the jurisdiction. Failing that, you will need the Courts’ permission to make representations on behalf of your husband; this will involve you making an application (form N244) for such in advance of that hearing, the sooner the better.

Godzilla

Kind regards

The Mould

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If the case was not judged, surely you effectively withdrew or discontinued, and therefore can start again?

 

The costs issue is a separate matter, not related to winning or losing at present.

 

Well... That's what I thought, but when I asked the court for permission to set aside my decision to withdraw and continue, permission was refused... And not knowing the rules of law, I just had to accept that...

 

Hello Mould.....

 

Thank you again. The link is very interesting, and certainly, at point 15, I seem fulfil the necessary criteria of the three main elements in that the land was promised to me which I came to rely upon, and that by not having the land, which contained my septic tank, it would be to my detriment, as we are seeing now, with the current landowner preventing me from selling my home, buy telling prospective purchasers that it is leaking over his land. (It isn't).

 

It is a shame that this promise was not made in writing, but I have a witness who was aware of the arrangement and who provided me with a statement for court. He was the gardener for both the original landowner, then afterwards for the neighbour. Unfortunately, he was prevented from appearing in court by the neighbour who threatened to reveal that he had been paid cash in hand.

 

The other problem is that when I was refused permission to continue with my claim, Land Registry removed my application, and now the landowner is trying to sell the land with my septic tank on it to another neighbour. Can I prevent him from doing so?

 

Just to be clear; my husband has never been involved in this land dispute... It is solely between myself and the neighbour...

 

But he must respond to the Interim Charging Order being made Final?.........and here I am confused as to what his argument should be and what he should be telling the court, because I was led to believe that a CO cannot be placed on a jointly mortgaged property if only one of the mortgagees is the debtor, and that only a Restriction can be put in place, which I has already happened.. Is this correct, please?

 

Dookist.

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In relation to the Charging Order, your husband can object to it being made final but in reality there is very little he can do to prevent this. As long as that Court judgment stands the Court will treat the FCO hearing as a rubber stamping exercise.

 

As you already know the Charging Order can only be registered as a Restriction against your beneficial interest in the property, not your husband's.

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Thanks, Ganymede...

 

If the CO is a forgone conclusion, is there any point in my husband making an objection to it?

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Whilst the CCJ stands yes it's 99% certain to be made final.

 

Up to your husband what he does. Certainly won't make it worse by objecting so nothing to lose really.

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There is no CCG....

 

The Interim Charging Order was automatic...

 

Sorry... I meant CCJ of course.

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Sorry... I meant CCJ of course.

 

Yes there is. The costs order

 

 

The Interim Charging Order is automatic yes, but the Final Charging Order isn't and requires a hearing.

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