hearing thursday - Premier Estates LTD . taking 70yrs olds to court about old pipework

[Benny1973]

hi

 

To cut a very long story short

 

 

An estate management company [removed] through JB Leitch are taking my 70 year old parents to court Thursday over withheld service charges and an external gas boiler pipe that they didn't install that is apparently "maiming the building"

 

The pipe was installed 3 years prior to them moving into the flats by the previous owners.

My parents have proof of this and put this in the defence.

 

Leitch then wanted to change their claim to include the fact that it was installed by my parents and / or the previous owners.

Not that it makes any difference in my eyes as they didn't do it,

the previous owners weren't taken to court over the issue

and nowhere in the lease does it say they inherited the problem.

 

my parents are quite happy to go to court as they feel they have a very good case and they feel wronged.

The stress this has caused them is great.

 

Whilst waiting for the hearing Leitch haven't left them alone

continually sending them continually what I consider to be scare letters

aimed at getting them to back down rather than see it out at the hearing.

 

 

The latest sent 6 days before the hearing claiming their "fees" are now at just over £5000.

My parents have ignored all their letters because as I say they dont mind defending and that's what they are going to do.

 

My question is

do JB Leitch often even not turn up ?

 

 

My impression reading about Leitch are that they are a glorified debt collection solicitor

aimed at scaring the unknowing into paying ridiculous fees.

 

 

Do they have much history of going through with it to small claims hearing stage ?

 

If they were that confident of winning surely they would just come to court

rather than send threatogram letters all the way up to the week of the hearing ?

 

Any advice welcome

 

Apologies this is probably posted in the wrong place ...

[callum1999]

Hi Benny1973,

 

Based on what you have stated,

sounds to me like they are just using the Courts as a scare tactic

which has backfired since the defence was made.

 

Now, and based on the defence,

they want to change the pleadings,

but this makes no difference.

 

If it was me and my parents were adamant to take it all the way to court, which i totally agree with,

give them notice and the court notice that you will be counter claiming for breach of contract.

 

Tell them you will be claiming legal costs, in any event on the litigant in person basis

and tell them that you are also considering making application for a wasted costs,

which will be the case, based on what you say, watch them move:-D.

[dx100uk]

JB would be working on the instructions of their client, the claimant

please name them

[BazzaS]

Do they have much history of going through with it to small claims hearing stage ?

 

is this in the small claims track of the county court?

Small claims has very limited costs allowable (as opposed to fast track, or multitrack of the county court)

 

 

Tell them you will be claiming legal costs, in any event on the litigant in person basis

and tell them that you are also considering making application for a wasted costs,

which will be the case, based on what you say, watch them move:-D.

 

Poor advice.

As stated above : costs may be limited if in small claims track, but "wasted costs" are inappropriate : where is the suggestion the other side's solicitor has done wrong against their client's wishes? (rather than following their client's wishes).

 

If the solicitor knows you haven't got a cat in hells chance of going after them for "wasted costs" it will make you look like a "bluffer" who doesn't know what they are talking about, and uses phrases they've picked up off the Internet without understanding them. They'll take you less seriously as a result.

 

"Costs" are ordered against (to be paid by) the solicitors client.

"Wasted costs" are against the solicitor themselves.

If a solicitor has pursued a hopeless case, because their client has insisted, "wasted costs" won't be awarded, only costs (dependant on which track?).

The "punishment" that should be asked for, for a claimant who has acted unreasonably by insisting on their solicitor pursuing a hopeless case, isn't "wasted costs" but "costs on an indemnity basis"

 

Ask for the wrong thing and it'll be declined. The risk is that you may then also not be given what you might have got if you had asked for the right thing!

[BazzaS]

"Wasted costs" are against the solicitor themselves.

If a solicitor has pursued a hopeless case, because their client has insisted, "wasted costs" won't be awarded, only costs (dependant on which track?).

 

Correction: "near hopeless".

If it was indisputably, absolutely hopeless, "wasted costs" are possible, just vanishingly rare.

 

the correct test was whether no reasonably competent legal representative would have continued with the action when there was a hopeless case.

 

From https://kerryunderwood.wordpress.com/2015/12/01/wasted-costs-and-non-party-costs-orders-unified/

[Benny1973]

Hi thanks for the replies

 

 

JB are working on the instructions of Premier Estates LTD

 

 

A quick background to the case.

 

 

The block is managed by Premier Estates.

It has a director of the site who lives a few doors away from my parents.

 

 

A few years ago another tenant wheeled some 200 bricks outside my parents window along with the site director because he was fed up with them being outside of his property.

 

 

They were loosley stacked and covered over with a tarpaulin.

A health risk to my parents and my 4 year old daughter whom they look after twice a week there.

 

 

According to the lease they are also "blocking the common parts" and effecting my parents "quiet enjoyment".

 

 

My parents met with people from the management company, who initially agreed with them they would ask the site director to shift them.

 

 

He refused. saying they were for some building project he wants to do which will never occur.

The management company then said there was little they could do as the final decision rests with the site director.

My parents then saw no option but to withhold the service charge which they did.

 

 

What followed then was a series of issues that they received letters for which were nothing more than "sticks to beat them with"

 

 

My father must remove his van from the car park as this isn't allowed in the lease,

even though the site manager said it was for the first 2 years.

 

 

They must remove all tables chairs, plant pots from outside the building

even though no other residents have even been asked to do this.

The idea being that if parents are complaining about the bricks then the site director is playing tit for tat with their items !

 

 

The external gas pipe that was installed 3 years before they moved in by the previous owners must be put right by them.

 

 

He moved the van,

they refused to remove their items

and said they will replace the gas pipe when there's call to replace the boiler again

bearing in mind its now 6 years old but at present being pensioners there's no way they can find the funds to do the work immediately.

 

 

Then in stepped JB Leitch.

The bricks were finally removed over a month ago,

the site director moved them as he knew in the pipeline was a court claim from JB Leitch

which duly was hand delivered while they were out the very next day !

 

 

Once the bricks were removed my mother immediately contacted premier and wanted to pay the withheld service charge and set up the direct debit again. the issue was resolved as far as she was concerned.

 

 

Premier wouldn't let her and said it was now in the hands of JB Leitch

and they would let my parents know what the situation was.

 

 

Leitch then emailed my parents saying they " were confident they would be successful in their claim in the matter nevertheless under civil procedure rules to try and resolves the dispute and potential benefit to both parties in terms of costs and interest they were prepared to make a settlement offer of

1. paying them £1239 2. provide a written admission pursuant to section 168 commonhold & leasehold reform act 2002 as to your breach of paragraphs 6 and 11 of the forth schedule of the lease"

ie admit that they installed an external gas pipe and "maimed" the building 3 years before they had even moved into the property - utterly ridiculous !

 

 

My parents put this in their defence and leitch said if they didn't remove it they would ask to have all my parents defence struck out ! Hasn't happened.

 

 

They also said my parents defence wasn't "good enough" etc

They then wanted to change THEIR claim and wanted my parents to pay for the fee,

now adding that my parents OR ANOTHER PARTY installed an external gas pipe without requesting permission and paying the assoctiated fee. Bit hard when you are 3 years away from even buying the property !

 

 

My parents have ignored all the nonsense from them as advised by the court.

They said the judge will decide if their evidence is "good enough" not JB Leitch

 

 

So here we are, Its due for Thursday.

Edited August 22, 2016 by Benny1973

[callum1999]

Good luck, think you have a very strong case, remember if the Court gives your parents judgment, it will be polite to ask the court to consider the costs which could be recovered in defending this outrages claim.

[Benny1973]

Good luck, think you have a very strong case, remember if the Court gives your parents judgment, it will be polite to ask the court to consider the costs which could be recovered in defending this outrages claim.

 

Thank you

- the only possible thing they can lose over is non payment of service charge

which they only ever "withheld" until the issue with the bricks that were dumped outside their property was resolved.

The gas pipe issue is laughable.

They aren't really interested in claiming costs

they just want it over with

but if they win I will make sure they request costs,

 

 

they sent 1 solicitor letter in the early stages that cost them £200.

Also the stress on the family has been great.

 

 

Not something 70 year olds that have moved to their final property should have to put up with JB Leitch constantly sending threatograms with ridiculous costs added on.

[SuperVillain]

So is the service charge element of the claim admitted by your parents?

[callum1999]

Thank you - the only possible thing they can lose over is non payment of service charge which they only ever "withheld" until the issue with the bricks that were dumped outside their property was resolved. The gas pipe issue is laughable. They aren't really interested in claiming costs they just want it over with but if they win I will make sure they request costs, they sent 1 solicitor letter in the early stages that cost them £200. Also the stress on the family has been great. Not something 70 year olds that have moved to their final property should have to put up with JB Leitch constantly sending threatograms with ridiculous costs added on.

 

Yes that is understandable, both the stress and the fact that your parents have to put up with this, it's wrong, but it goes on and they normally get away with it, cowboys.

 

Fair play to you on fighting your parents corner for them, and fair play to your parents who like most people, do not accept as being wronged, because of the threat of courts.

[Benny1973]

So is the service charge element of the claim admitted by your parents?

 

Its is admitted it is "withheld"

in protest at the bricks issue and they have submitted evidence.

 

 

They have also submitted evidence as to the bullying they feel they have experienced.

 

 

Obviously JB Leitch have ignored the bricks issue existing in the claim and are just making like they are refusing to pay service charge.

 

 

It is actually a Case Management Conference they are attending Thursday 25th lasting 1 hour - Is this by telephone ?

What will it entail ?

 

 

Interestingly I read "At least 3 clear days before the case management conference the Claimant must file and send to the other party or parties preferably agreed and by email: draft directions a chronology a statement of the issues a case summary." They have not had any of this yet - no communication

[SuperVillain]

Its is admitted it is "withheld" in protest at the bricks issue and they have submitted evidence. They have also submitted evidence as to the bullying they feel they have experienced. Obviously JB Leitch have ignored the bricks issue existing in the claim and are just making like they are refusing to pay service charge. It is actually a Case Management Conference they are attending Thursday 25th lasting 1 hour - Is this by telephone ? What will it entail ? Interestingly I read "At least 3 clear days before the case management conference the Claimant must file and send to the other party or parties preferably agreed and by email: draft directions a chronology a statement of the issues a case summary." They have not had any of this yet - no communication

 

How much are they claiming from your parents?? Case management conferences don't usually happen in small claims...

 

The purpose of the case management is to establish how the case will progress. A timetable will be decided for disclosure, witness statements etc and the trial window should be established. (if you don't receive these it might be worth making your own draft directions chronology and case summary to refer to/take to Court)

 

Are you 100% sure the order says the Claimant must file, and not, the Parties must file? If it definitely says the Claimant, I would send a chasing email asking for the documents they've been ordered to send to you.

 

It will say on the order whether the hearing is by telephone, or alternatively which County Court it is to be heard at.

[BazzaS]

Since this looks like it is fast-track or multi-track, and the reason why your parent's have been witholding the service charge has now been removed, your parent's should consider making a Calderbank offer (like a part 36 offer, but not meeting the stricter formalities of a Part 36 offer) to settle the service charge.

 

They could explain in it that the service charge was witheld due to the issue of the bricks, and now that has gone they are happy to pay the service charge, and in return all legal action should cease, with each side bearing their own costs.

If they admit that the service charge is now due, what do they have to lose by such an offer?.

If the offer isn't accepted and it goes to court they'd likely have to pay the service charge anyway, now the bricks issue is resolved, and making such an offer might protect them from costs implications, especially if they were then only found liable for the service charge part of the claim.

 

They shouldn't make a Part 36 offer, as if they did so they'd be accepting responsibility for the legal costs up to that point.

[Benny1973]

How much are they claiming from your parents?? Case management conferences don't usually happen in small claims...

 

The purpose of the case management is to establish how the case will progress. A timetable will be decided for disclosure, witness statements etc and the trial window should be established. (if you don't receive these it might be worth making your own draft directions chronology and case summary to refer to/take to Court)

 

Are you 100% sure the order says the Claimant must file, and not, the Parties must file? If it definitely says the Claimant, I would send a chasing email asking for the documents they've been ordered to send to you.

 

It will say on the order whether the hearing is by telephone, or alternatively which County Court it is to be heard at.

 

They are claiming just under 5k I believe

 

The order doesn't tell them to do anything apart from turn up at Walsall county court Thursday as it cannot take place over the telephone.

[Benny1973]

Since this looks like it is fast-track or multi-track, and the reason why your parent's have been witholding the service charge has now been removed, your parent's should consider making a Calderbank offer (like a part 36 offer, but not meeting the stricter formalities of a Part 36 offer) to settle the service charge.

 

They could explain in it that the service charge was witheld due to the issue of the bricks, and now that has gone they are happy to pay the service charge, and in return all legal action should cease, with each side bearing their own costs.

If they admit that the service charge is now due, what do they have to lose by such an offer?.

If the offer isn't accepted and it goes to court they'd likely have to pay the service charge anyway, now the bricks issue is resolved, and making such an offer might protect them from costs implications, especially if they were then only found liable for the service charge part of the claim.

 

They shouldn't make a Part 36 offer, as if they did so they'd be accepting responsibility for the legal costs up to that point.

 

 

A calderbank offer was made to my parents i believe as below. The sticking point was they wanted them to give a written admission they had "maimed the building" with an external gas pipe when they didn't. Once signed they they I assume would have hammered them to get it changed and all the costs involved.

 

Without Prejudice Save as to Costs

 

Dear Sir & Madam

 

We refer to your recent communications with our Client’s agent.

 

We understand that you have indicated that you wish to resolve the Claim. For the reasons set out in our earlier correspondence, both we and our client are confident that our client will be successful in its claim in the above matter. Nonetheless, our client is mindful of the obligations on parties, under the Civil Procedure Rules, to try to resolve their disputes and of the potential benefits to the parties, in terms of costs and interest, of making a settlement offer. Our client is, therefore, prepared to make the settlement offer set out below.

 

TERMS OF OUR CLIENT'S FULL AND FINAL SETTLEMENT OFFER

 

Our client hereby offers the following terms of settlement:

 

· This offer is made in full and final settlement of the whole of our client's claim referred to in the particulars of claim dated 7th June 2016, including any actual or proposed counterclaim.

· You to pay our Client’s costs of this matter, on the standard basis, to be subject to detailed assessment if not agreed.

· 14 days after you accept this settlement offer in writing, you will:-

1. Pay to our Client the sum of £1,239.12 via electronic transfer into our Client account quoting reference 45/C using the account details set out in the attached methods of payment form.

2. Provide a written admission pursuant to section 168 Commonhold and Leasehold Reform Act 2002 as to your breach of paragraphs 6 and 11 of the Fourth Schedule of the Lease.

 

CONSEQUENCES OF FAILURE TO ACCEPT THIS SETTLEMENT OFFER

 

If you do not accept this settlement offer, we reserve the right to bring the contents of this letter to the attention of the court on the issue of costs. If you fail to do better than this settlement offer at trial, we intend to seek an order requiring you to pay our Client’s costs on the standard basis until 21 days after the date of this Offer and thereafter on the indemnity basis, together with interest on those costs until payment.

 

We await hearing from you.

 

Yours truly"

[BazzaS]

A calderbank offer was made to my parents i believe as below. The sticking point was they wanted them to give a written admission they had "maimed the building" with an external gas pipe when they didn't. Once signed they they I assume would have hammered them to get it changed and all the costs involved.

 

Without Prejudice Save as to Costs

 

Dear Sir & Madam

 

We refer to your recent communications with our Client’s agent.

 

We understand that you have indicated that you wish to resolve the Claim.

 

I agree with the risks of accepting their offer.

Nothing to stop your parents sending back the counter-offer I suggested (settle the outstanding service charge, each side to bear their own costs, all legal action to cease)..... sending it as a Calderbank offer (so noting the cost implications of them declining it).

[Benny1973]

Where would the offer be made ? To their solicitor or at the case management conference ?

 

Where would this leave us with the gas pipe issue ?

 

Genuinely what are the chances of them being liable for a gas pipe that was installed 3 years prior to them buying the property ? The previous owners that installed it weren't taken to court, it wasn't mentioned until they kicked up a fuss about the bricks.

[BazzaS]

Where would the offer be made ? To their solicitor or at the case management conference ?

 

In writing, to their solicitor / at the "address for service" on the court papers.

 

Where would this leave us with the gas pipe issue ?

 

Genuinely what are the chances of them being liable for a gas pipe that was installed 3 years prior to them buying the property ? The previous owners that installed it weren't taken to court, it wasn't mentioned until they kicked up a fuss about the bricks.

 

You say "buying the property", but you also say "lease".

Do they own the leasehold or freehold?. Is it that they own the freehold of the their flat but the rest of the building / common area is leasehold?

If they own the freehold, is the gas pipe in the part of the property they own freehold and / or in the non-freehold part.

 

Other may be better able to answer than me, but may need the answers to those questions to best be able to advise.

[steampowered]

Where would the offer be made ? To their solicitor or at the case management conference?

Put the offer to their solicitor in writing.

 

You may need to prove that a written offer to settle on the basis of paying the service charge was made, if it is later alleged that your parents were unreasonable in failing to pay the agreed service charge and/or unreasonable in failing to respond to a settlement offer and should therefore pay legal costs. It is strongly advisable to ensure that a written response is provided for this reason.

 

Where would this leave us with the gas pipe issue?

This should be mentioned in the response to the solicitor on their offer - simply say that they do not accept that there has been any breach of the lease agreement and that the boiler was installed long before they acquired the lease. Perhaps make the settlement conditional on the freeholder acknowledging this.

 

It is quite important that they do NOT agree to admit liability on this, as that would then potentially enable the freeholder to threaten forfeiture of the lease.

 

Genuinely what are the chances of them being liable for a gas pipe that was installed 3 years prior to them buying the property ? The previous owners that installed it weren't taken to court, it wasn't mentioned until they kicked up a fuss about the bricks.

It is very difficult to advise on this unless you are able to tell us exactly what the claimant is alleging on this in the 'particulars of claim' which they have submitted to the court, and exactly what points 6 and 11 of Schedule 4 of the lease state.

 

On another note, it might be possible for your parents to raise a counterclaim against the freeholder for breach of specific terms of the lease, or breach of the covenant of 'quiet enjoyment' generally, if the freeholder's actions have not been as per the agreed lease. If this is a route they want to go down, I suppose an application to make a counterclaim should be made at the upcoming case management conference.

[Benny1973]

The original reply to the 1st JB Leitch letter from my parents was this

"

Dear Sir,

 

I am in receipt of your letter dated 24th March 2016.

 

We are currently in dispute with , another resident, of the Oakridge Development, regarding the placement, some 8 months ago of over 200 loosely stacked bricks adjacent to our property. This large quantity of bricks constitutes a grave loss of both amenity and our “ quiet enjoyment “ and a danger to our young Granddaughter, who we childmind on a daily basis.

 

Despite many requests for removal, they remain and we have been given no inclination as to when they will be removed. For this reason, we withhold the service charge. The withheld amount is to hand and will be paid once the bricks are removed.

 

Premier Estates Accounts Department were notified by phone and letter the day the service charge direct debit was cancelled.

 

, Estates Manager of Premier Estates came to view the bricks and notified us by letter that in his opinion, the bricks were “ inappropriately stored “ and that “ they should be removed “.

 

We were also informed by letter that the service charge account would be “ put on hold “ whist the matter was resolved.

 

The van which we asked for, and were given permission, to park, with the only request to remove it being your solicitor’s letter, has now been removed from the car park as requested.

 

The gas boiler pipework has been in situ almost 6 years, placed there by the previous owner some 2 years before we took occupation. We explained to

 

There is a great deal of correspondence involved with the above matter, which I should be pleased to submit to you should you require it."

 

When the bricks were removed my parent sent this email to Premier Accounts dept

 

"

Dear ,

 

I write in respect of our telephone conversation this morning.

 

As explained, now that the two hundred loosely stacked bricks have been removed from adjacent to our property (on Wed 3rd June) I consider the dispute settled and wish to make arrangements to re-establish our monthly service charge direct debit. I also wish to make arrangements to settle the outstanding balance.

 

You advised that this was not possible unless arranged through JB Leitch however because of the outstanding court case I do not feel that this path is in our best interests.

 

Thank you for your efforts in assisting me today.

 

Regards,"

 

As regards the sections outlined in the lease I will find out the wording but its along the lines of not to alter the common parts, maim the building and not paying a fee to apply to make these changes etc.

They are claiming that it was my parents that did this whilst installing the boiler.

 

 

The problem for them is they were clearly informed by premier that It was my parents but it was 3 years before they bought the flat. It was the previous owners who they never hassled about it.

 

 

Having seen my parents defence of this they wanted to change the claim to include my parents " and or the previous owners" which is ridiculous.

[Benny1973]

 

It is very difficult to advise on this unless you are able to tell us exactly what the claimant is alleging on this in the 'particulars of claim' which they have submitted to the court, and exactly what points 6 and 11 of Schedule 4 of the lease state.

.

 

The brief details of claim are

 

"carried out structural alterations without first getting consent of the claimant and failed to pay the service charge"

 

6 is "Not to appropriate any facility or obstruct any area of the commonwealth parts" re the pipework

 

11 is "The defendants have installed pipework outside premises maiming the development and obstructing the communal parts"

 

They didn't install it the previous owners did

 

They are also claiming

 

10 " Didn't get written consent prior to this from the claimants and didn't pay the £25 fee"

 

Impossible to do this they lived elsewhere 3 years before

 

12 which is "failed to pay the service charge"

[callum1999]

The brief details of claim are

 

"carried out structural alterations without first getting consent of the claimant and failed to pay the service charge"

 

6 is "Not to appropriate any facility or obstruct any area of the commonwealth parts" re the pipework

 

11 is "The defendants have installed pipework outside premises maiming the development and obstructing the communal parts"

 

They didn't install it the previous owners did

 

They are also claiming

 

10 " Didn't get written consent prior to this from the claimants and didn't pay the £25 fee"

 

Impossible to do this they lived elsewhere 3 years before

 

12 which is "failed to pay the service charge"

 

What makes them so sure that your parents carried out the structural alterations's, i take it they have all the required evidence that would satisfy a Court, that your parents carried out the alterations, in order for the service charge to be payable.

 

How do you know that it was installed three years ago, have you the proof?

 

If you have, and i am no doubting you have, add to that, proof of address which could be obtained as to where your parents lived three years ago, your parents would not be liable.

 

Can you proof the above??

[Benny1973]

What makes them so sure that your parents carried out the structural alterations's, i take it they have all the required evidence that would satisfy a Court, that your parents carried out the alterations, in order for the service charge to be payable.

 

How do you know that it was installed three years ago, have you the proof?

 

If you have, and i am no doubting you have, add to that, proof of address which could be obtained as to where your parents lived three years ago, your parents would not be liable.

 

Can you proof the above??

 

They have a building regulations compliance certificate and a quotation document compiled by the installers for the benefit of the previous tenant both dated 2010. They have a current and dated picture of the same boiler in the kitchen. They also have 2 emails from the estates manager at premier one that states " I can see the previous owners were persued to remove the pipework but this was unsuccessful" another that says " I do sympathise that you personally haven't installed the boiler and associated pipework"

[SuperVillain]

As regards the sections outlined in the lease I will find out the wording but its along the lines of not to alter the common parts, maim the building and not paying a fee to apply to make these changes etc.

They are claiming that it was my parents that did this whilst installing the boiler.

 

The problem for them is they were clearly informed by premier that It was my parents but it was 3 years before they bought the flat. It was the previous owners who they never hassled about it.

 

Did your parents install a new boiler since they have been in the property?

 

If they did and no alterations were made to the pipework then perhaps speak to the fitter of the boiler and seek any paperwork for the boiler installation. This would be relevant when it comes to disclosure.

[Benny1973]

Did your parents install a new boiler since they have been in the property?

 

If they did and no alterations were made to the pipework then perhaps speak to the fitter of the boiler and seek any paperwork for the boiler installation. This would be relevant when it comes to disclosure.

 

No it is exactly the same boiler that was installed back in 2010 by the previous owners of the property. I imagine the boiler wont have many years left - my parents have already stated in their original letter back to JB Leitch that they "would take their request on board at such a time that a new boiler is necessary"