Consent order signed by third party solicitor and their client not paid, can I sue solicitor?

[tifo]

Hi,

 

I took a company to court and the day before the hearing their solicitor called and agreed a settlement sum. He then wrote to the court to say we had settled.

 

The next day before the hearing we signed a consent order (myself and the third party solicitor). I went to the hearing and the judge put through an order as per the consent.

 

The third party did not pay and despite chasing their solicitor he always said "I'm waiting further instructions".

 

During the claim I did not speak or deal with any of the third party, only their solicitor.

 

The company went into liquidation some 6 months later and I am not getting any payment (nothing left liquidator says).

 

Can I sue the third party solicitor as he signed the consent order and I believed his client will pay? Solicitor says this was not an undertaking, just following instructions.

 

Thanks.

[AndyOrch]

Tifo I think you need to flesh the bones a little more to enable any advice...what is it in connection with...who and why is there a third party...etc....

 

Regards

 

Andy

[Ganymede]

Can I sue the third party solicitor as he signed the consent order

 

No. You cannot.

[tifo]

I had default judgment against the company, they applied twice with N244 to set this aside but failed, the defendant solicitor then settled and signed consent order prior to the disposal hearing .... I applied for enforcement but could not locate the director to serve documents, the company is now in liquidation ... all this was over a 11 month period.

 

Did the defendant solicitor have no duty of care to make sure payment is made for the consent order HE signed? Otherwise they've both played the system, defendant solicitor can sign with no fear of reprisals, defendant does not pay with no fear of enforcement, this makes a mockery of the proceedings and hearings .... meanwhile i agreed settlement of my claim from £2,000 to £1,400 because I thought they'll pay, i end up getting nothing, plus costs are £750 inc time, court fees, postage (papers, folders, SD delivery x 2).

[tifo]

No. You cannot.

 

Why not?

 

I've trusted the defendant solicitor when he's signed a court document to say his client will pay XXX.XX .... There must be some responsibility in signing a court document ....

[Guest]

in most scenarios, a con/tomlin order has to be signed by the legal rep if represented (LiP's obviously excluded) eg cpr 40.6 and associated PD 40B, therefore may not generally be seen as a solicitors undertaking to pay. but, thats not to say that there wasnt one, depends on the terms/nature/circs of an order.

[BazzaS]

Why not?

 

I've trusted the defendant solicitor when he's signed a court document to say his client will pay XXX.XX .... There must be some responsibility in signing a court document ....

 

You can sue if he gave an undertaking (but it would be rare for a solicitor to give an undertaking [which would bind them / be enforceable via the Legal Ombudsman] unless their client had deposited cleared funds, precisely because it would mean they would be accepting responsibility for their client's action / inaction!)

 

The solicitor signs the court document as an agent of the client, following the client's instructions, rather than "signing to say the solicitor, rather than the client, will pay"

 

If the solicitor was going to be bound by signing, expect to see a lot fewer forms signed or many more parties to litigation appearing in court to sign .........

[tifo]

I do understand that the solicitor signed the consent order on behalf of his client, but does he bear no duty of care towards me, as the party he was dealing with, to ensure that his client did what he the solicitor was signing for, i.e. chase his client to make payment within the 14 days or make sure funds are on account before signing the consent order?

 

As he was my sole contact for the whole claim, I dealt with it in the way I did because of the information he provided me.

 

It is an unusual situation where the defendant has gone into liquidation ....

[steampowered]

No, the solicitor does not owe you a duty of care. The solicitor's role was to conduct the litigation on behalf of the other side. The solicitor does not have any control over whether or not his client pays the sum he is supposed to pay.

 

You say the company was put into liquidation and that there is nothing left. You need to try and find out what happened to the assets. As you were an unsecured creditor, you should have been paid in proportion to any other unsecured creditors (and certainly before anything went to the shareholders of the company). You should speak to the liquidator about this and see if you can get accounts.

 

You should go on the 'Companies House beta' website and download the recent filings and accounts filed with Companies House in order to try and get a clearer picture of what has happened. If you are able to provide more precise details about what was happened in the insolvency process so far, then we might be able to help you a bit further (and we really do need to know the details - for example, a members' voluntary liquidation and a creditors' compulsory liquidation are different).

 

If it turns out that the shareholders of this company were also directors and took money out of the company for themselves and then liquidated it to avoid paying you, you would be able to sue the responsible directors personally, on the basis of provisions in the Insolvency Act 1982 dealing with transactions defrauding creditors.

[tifo]

Hi, the company went into voluntary liquidation.

 

I'm trying to get hold of the director's info but CH and Liquidator both are not interested. The director has given the former trading address as his contact address (he is also the biggest creditor of the company) yet not one of them is willing to provide me with his residence address. The company's former trading address has gone through several businesses since then.