Managing Agent leasehold Property 4th Court Claim same issue.

[BlurredFX]

"Abuse of process" - that's the term I was looking for.

 

So it would make sense, if the first part of my defence went along the lines of:

1) The claim should be in two parts anyway - pre-RTM and post-RTM. And there should be different companies pursuing different alleged debts.

2) Pay the post-RTM stuff.

3) Apply for the pre-RTM stuff to be struck out as it is re-litigation of their cases from 2009 and 2011. Point out that 2011 case was essentially a re-litigation of the 2009 case. Here we could include reference to CPR 38.7, as andydd said.

 

So if I go for getting it struck out on the basis that it is re-litigation, is that the same as SJ route? Are they different terms for the same thing?

 

I know when they litigate against me, they must lay their cards on the table. But they have failed to do so every time!!

 

In 2009 case, I got an Order saying that they MUST produce their documents (I borrowed a CPR defence from the credit card enforcement files and modified it for this case) - but they didn't produce anything, and the DJ told them they were on a hiding to nothing without it. At the hearing he had a stack of paperwork 12" high - but when directly asked by the DJ if he had evidence to back his case, he said "No". I couldn't believe it. The case was adjourned, and he later informed the Court that I had settled the claim!!!! LIAR LIAR PANTS ON FIRE!!

 

They didn't have to produce any documentation in 2011, as they got a Judgement in Default. They did not oppose my application for set aside, nor did they attend when the case was re-heard - their claim was struck out, and I was awarded (as yet unassessed) costs. So they have never produced anything!! It's beyond a joke!

 

So, perhaps after the first lines of attack described above, I could dig out that old application, and use it to ask them to produce their documentation! Or get an order form the Court anyway.

 

You say if they are withholding info - this could be to my advantage. Are there other ways we can exploit it as well??

 

This is all before westart ont he fact that none of their documentation is complicit with the right laws, even if they are entitled to collect. I forget the exact rules we used, but they are earlier on in this thread.

 

I have also heard from the Court today. Good news I feel.

 

UPON reading the Defendant's application dated 2xth October 2014 and the attached documents including the medical evidence provided

 

IT IS ORDERED THAT

 

1. The claim be stayed until 4.00pm on the 1xth February 2015.

 

2. The Defendant shall file and serve his detailed defence to the claim by 4.00pm on the 1xth February 2015 and in default shall file and serve further medical evidence supporting his inability to do the same.

 

It then goes on to give the other side 7 days to serve their objections. If I make an applications, the case shall be transferred to my home court. In all other cases requiring a hearing will be transferred to the preferred court.

 

So, how does that sound for a plan of action forming?? At least I have a deadline to work towards. In reality, it would be nice to beat that deadline, but also have a full defence all done and dusted as best I can anyway. Don't want to be taking a flier again - want it dealt with if I can - health permitting!!

 

PS - thinking about it, as far as this 2014 stuff goes, he hasn't sent me a LBA in any event!!! That'll do as well, might as well throw it in there, possibly avoid with getting hit with costs for him pursuing two months worth of debts. Just a thought.

[BlurredFX]

Andy. You are so lucky in having a LL that thinks the law actually applies to him. Or maybe just not one that waits until you are literally on your death bed before litigating. You really couldn't make it up how stupid, cruel and nasty this fella is

 

I would take a lighter view of the clown I am dealing with, except that he has already taken me for a good few thousand - I hope to get it back, plus interest, plus interest on the interest with mortgage co, but it isn't the point- I honestly don't think he understands that all he is doing is saving up all these problems!! He got some money once, and he thinks he will get it again. He thinks I am that fool!!?? He has no documentation, as the company was only ever simply set up as a friendly collective that I didn't bother with - and he seems to think he can assume the privileges of the LL in the absence of the real LL - but he cant!!! Wouldn't mind but none of the external decoration or anything stipulated in the lease had occurred, it hasn't and the place looks a show.

 

Gets me soooo angry

[andydd]

"Abuse of process" - that's the term I was looking for.

 

So it would make sense, if the first part of my defence went along the lines of:

1) The claim should be in two parts anyway - pre-RTM and post-RTM. And there should be different companies pursuing different alleged debts.

2) Pay the post-RTM stuff.

3) Apply for the pre-RTM stuff to be struck out as it is re-litigation of their cases from 2009 and 2011. Point out that 2011 case was essentially a re-litigation of the 2009 case. Here we could include reference to CPR 38.7, as andydd said.

 

So if I go for getting it struck out on the basis that it is re-litigation, is that the same as SJ route? Are they different terms for the same thing?

 

I know when they litigate against me, they must lay their cards on the table. But they have failed to do so every time!!

 

In 2009 case, I got an Order saying that they MUST produce their documents (I borrowed a CPR defence from the credit card enforcement files and modified it for this case) - but they didn't produce anything, and the DJ told them they were on a hiding to nothing without it. At the hearing he had a stack of paperwork 12" high - but when directly asked by the DJ if he had evidence to back his case, he said "No". I couldn't believe it. The case was adjourned, and he later informed the Court that I had settled the claim!!!! LIAR LIAR PANTS ON FIRE!!

 

They didn't have to produce any documentation in 2011, as they got a Judgement in Default. They did not oppose my application for set aside, nor did they attend when the case was re-heard - their claim was struck out, and I was awarded (as yet unassessed) costs. So they have never produced anything!! It's beyond a joke!

 

So, perhaps after the first lines of attack described above, I could dig out that old application, and use it to ask them to produce their documentation! Or get an order form the Court anyway.

 

You say if they are withholding info - this could be to my advantage. Are there other ways we can exploit it as well??

 

This is all before westart ont he fact that none of their documentation is complicit with the right laws, even if they are entitled to collect. I forget the exact rules we used, but they are earlier on in this thread.

 

I have also heard from the Court today. Good news I feel.

 

 

 

So, how does that sound for a plan of action forming?? At least I have a deadline to work towards. In reality, it would be nice to beat that deadline, but also have a full defence all done and dusted as best I can anyway. Don't want to be taking a flier again - want it dealt with if I can - health permitting!!

 

PS - thinking about it, as far as this 2014 stuff goes, he hasn't sent me a LBA in any event!!! That'll do as well, might as well throw it in there, possibly avoid with getting hit with costs for him pursuing two months worth of debts. Just a thought.

 

1. It maybe possible for the post-RTM company to issue a claim for the whole lot in one sense as with lesseshold, each party, LHs, FHs and management agents can just take on from where the old company left off, debts and obligations are asigned onto the next person/company, for example my original lease say Mr and Mrs X and Old Freeholder, but the lease sayst the same and the leaseholders and Freeholder change as time goes on.

 

BUT in your case I'd guess that the Pre-RTM comapony had no right or contract therefore any debts canot be simply assigned to the Post-RTM (which we assume is running properally).

 

It appears to me that it doesnt really matter if the first compnay was pursuing the debt seperatly as there was no contract between you and it, therefore nothing is payable but as the claim is combined it is possible to have all the pre-RTM stuff struck out, I'd assume because its pre-litigation or in the alternative that there still is and never was any contract between it and you.

 

As for the path to follow, it is quite possible to have all/parts of it struck out I believe by using CPR 3, by making an application that parts/all be struck out, see here > http://uk.practicallaw.com/1-204-3083 as you can see the court can use its own initiative or you can make an application (there would be small cost for this).

 

As for Summary Judgement and the costs risks, I think there are only costs risks if this is done pre-allocation (i.e before small costs rules kick in), so I think Im right in saying that it maybe best to wait for allocation, then put in application to get parts/all of their case struck out.

 

It is important though that you should pay any amounts that have been validly demanded and you dont wish to dispute, even if this means caculated the post-rtm stuff.

[andydd]

Have a good read of the http://uk.practicallaw.com/1-204-3083# as I think it shows i am wrong in some of my views.

 

Im not 100% certain if a strike out application would be dealt with seperatly (i.e normal costs rules) or considered as part of the small claims track , in any case, in certain court claims there are 'fixed costs' which cap the amounmts one side may have to pay > http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part45-fixed-costs

[BlurredFX]

1. It maybe possible for the post-RTM company to issue a claim for the whole lot in one sense as with lesseshold, each party, LHs, FHs and management agents can just take on from where the old company left off, debts and obligations are asigned onto the next person/company, for example my original lease say Mr and Mrs X and Old Freeholder, but the lease sayst the same and the leaseholders and Freeholder change as time goes on.

 

I agree entirely.

 

BUT in your case I'd guess that the Pre-RTM comapony had no right or contract therefore any debts canot be simply assigned to the Post-RTM (which we assume is running properally).

 

Yup.

 

It appears to me that it doesnt really matter if the first compnay was pursuing the debt seperatly as there was no contract between you and it, therefore nothing is payable but as the claim is combined it is possible to have all the pre-RTM stuff struck out, I'd assume because its pre-litigation or in the alternative that there still is and never was any contract between it and you.

 

OK. The old company withdrew their first claim, had the second one struck-out and this is their third attempt, but under the guise of RTM. Could it be best to produce a CPR request for him to produce everything?? At this point we will know what we are up against? This is aside from the fact I have it in writing from the new LL the (pre-RTM) company that was managing the block was not appointed by them. But if I ask for his documents, I don't suppose I can get it struck out at the same time can I?

 

As for Summary Judgement and the costs risks, I think there are only costs risks if this is done pre-allocation (i.e before small costs rules kick in), so I think Im right in saying that it maybe best to wait for allocation, then put in application to get parts/all of their case struck out.

 

From what I recall, nothing gets allocated until you put a defence in anyway?? Or am I missing a possible step out??

 

Hmmmm. Perhaps I should put a multi-layered defence in. First off going for getting it struck out as a re-litigation and post-RTM stuff being paid up to date. In the alternative, the Claimant produce all his documentation so that I can consider his case, and further in the alternative, in the absence of any evidence (AGAIN), I will submit an embarrassed defence AGAIN.

 

It is important though that you should pay any amounts that have been validly demanded and you dont wish to dispute, even if this means calculated the post-RTM stuff.

 

I will get this done before my defence goes in for sure. It's only four months up to now.

 

 

PS the LL has also sent me a letter for back-dated ground rent, even though pre-RTM company claimed it from my Mortgage Company when they went for s146 (i think it was). I would love to see what they wrote to the Mortgage Co to get the money out of them, as I am sure it is lies. Ground rent has always been totally separate and administered completely separately by the LL!! Both the old LL and the new LL have had nothing to do with the pre-RTM company. More of this later, I fear.

[BlurredFX]

Have a good read of the http://uk.practicallaw.com/1-204-3083# as I think it shows i am wrong in some of my views.

 

Im not 100% certain if a strike out application would be dealt with seperatly (i.e normal costs rules) or considered as part of the small claims track , in any case, in certain court claims there are 'fixed costs' which cap the amounmts one side may have to pay > http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part45-fixed-costs

 

I thought, having read it, it seems a bit of an unlikely method - the Court might not really go for it.

 

I cant access http://uk.practicallaw.com/1-204-3083# which may have provided more clues.

 

The page also linked to CPR24.2 (as below)

 

Grounds for summary judgment

24.2 The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –

(a) it considers that –

(i) that claimant has no real prospect of succeeding on the claim or issue; or

(ii) that defendant has no real prospect of successfully defending the claim or issue; and

(b) there is no other compelling reason why the case or issue should be disposed of at a trial.

(Rule 3.4 makes provision for the court to strike out(GL) a statement of case or part of a statement of case if it appears that it discloses no reasonable grounds for bringing or defending a claim)

 

Might it be better to go with CPR 24.2. I could argue that the Claimant has no prospect of success, as it is re-litigation that he has a) previously withdrawn (2009), and b) been thrown out when challenged (2011). Perhaps that should be my opening gambit. Followed by pre-RTM being struck out under CPR 3.4, Followed by produce your documents under whatever CPR I previously used to obtain them.

[BlurredFX]

followed by an embarrassed defence. Then followed by all my evidence that their notices are unenforceable, thus limiting my liability to 18 months in the miraculous event they come up with a credible document trail - which doesn't exist - which would still leave them (well, mortgage company) still owing me money! As I understand it, I have six years to get my money back from the mortgage co, eventually, when this lot is done with.

[andydd]

The Practical Law link works ok for me, its quite useful.

 

I cant quite remember at what stage allocation occurs but if you get to that practical law link it does say that all strike out stuff is suppossed to be done BEFORE allocation, so you get to strike out as much stuff as possible.

 

I think that with SJ you are not only asking court to strike out certain parts/all of the claim but also that the claim is bought to a close and judgement be given all in one step, as it appears that you wont be defending the post RTM stuff as it maybedue you cant use this but you should use the relevant CPR to strike out the pre-RTM for either re-litigation or coz there was no contract/agreement.

 

Im not sure if the re-litigation bit can be used as an actual defence or whether it is important you pre-empt the defence and ask for strike out for re-litigation, this would mean there may be a costs risk but I think that would be worth it.

 

The mortgage bit prob should be followed up later, there seems little legislation covering this, (maybe there are mortgage society rules ?), and the mention of S146 gets them scared even if in reality there was no real prospect of forfeiture.

[steampowered]

Hi, strike-out and summary judgment will be treated the same from a costs perspective. It is actually quite common to ask for both in the same application using a phrase like 'strike-out or, in the alternative, summary judgment'. In theory as it is pre-allocation costs rules could apply, but the court is likely to apply small claims procedure if the case is clearly worth less than 10k.

 

SJ is normally used where someone brings a case which is very weak on the facts. Essentially the test for SJ is whether, assuming that that the other side is taken at their word and will manage to prove every single fact they are alleging, could they possibly have the legal remedy they are asking for. It is really a factual test rather than considering whether the claimant is abusing the court process.

 

If you are going down the abuse of process route strike-out is more appropriate, but it sounds like you have grounds to argue both so you might as well lump both together in the same application.

 

As mentioned earlier, I'd seriously consider getting a solicitor to handle this. That will increase the chances of being able to deal with this smoothly and it sounds like you'd have an excellent chance of recovering every penny of the cost from the claimant.

[andydd]

Thanks Steampowered, you explained it far clearly than me.

 

I too used a joing SJ/Strike Out appliction and was successfull, my first time was for clear abuse of process (re-litigation), but at the time my FH's solicitor was useless, they didnt file any paperwork at all for the SJ claim so I cant say what possible defences they might of used, the Judge almost instantly gave Judgement in my favour and the rest of the discussion was about my costs (she used the 3/4 rule and said a solictor would charge about £400 so I got ahout £300).

 

My second time using SJ was again for service charges, I said that all the service charge demands were invalid, this time a different solicitor did prepare a defence and some minor aspects of it may have been successful but they offered to withdraw their claim and pay my costs (£175) so again this wasnt fully argued in court.

 

As SP has clarified, SJ/Srike Outs will all be dealt with pre-allocation and same as costs are concerned, although I note in my experience (and another pre-allocation interloctury claim I made) they were NOT dealt with as small claims but on the normal costs rule, my cases were under £5k at the time....but this means that if a solicitor is inbvolved he could if successfull claim his full costs, this often serves as a warning to the other side and may cause them a re-think/offer to settle/withdraw (as happened to me).

 

It also strikes me that a RTM company is run by the leaseholders, they often dont have a vast pool of money to go wasted on pointless legal battles, although clearly they do have to make an attempt to revover genuinely unpaid service charges.

 

Also I think I mentioned above but as maybe the post-RTM part is not disputed, if so, then it wouldnt be right to use SJ as you are asking that the whole claim be struck out and judgement be given.

[BlurredFX]

Wow! 12 months on! Well, soon after my last post, I became very ill, and 12 months later, the latest claim is stayed until 11th Jan 2016.

 

To recap, this is right old mess. I live in a block of leasehold flats (999 years). The Landlord was absent for years. In the absence of the LL, the residents set up an informal company to look after things. That informal company has been giving me all kinds of nightmares.

 

They started a claim for Service Charges in 2009, but ultimately withdrew it as the Court orderered them to produce some paperwork proving their entitlement. They actually informed the court I had settled, when I hadn't.

 

Then, in 2011, I was in hospital. They started another claim, and won by default as I was in intensive care. They then claimed the service charges off my mortgage company, as if they were the landlord. I subsequently had this judgement set aside. A new hearing was scheduled but they didn't turn up. I had a counterclaim in for the money my mortgage company paid. In the end, the whole lot was adjourned with either side free to restore if as and when they wished. I made a mistake here, if I recall the DJ offered to strike the whole lot out, but I declined, not wanting my counterclaim struck out. That was a mistake I think...

 

THEN, In July 2014 RTM was granted to a new RTM company. The new RTM company then launched another claim, for stuff unpaid pre-RTM (post 2011 case) as well as one month post-RTM. I paid RTM from day 1. I have paid from July 2014 and I am up to date. The 2014 claim is currently stayed until Jan 16.

 

I think what I need to do is bring the 2011 case (I lost in default, they claimed from mortgage co, I set aside. New hearing, they failed to attend, adjourned) and the 2014 case (RTM Company claiming from pre-RTM) all together, and ask the DJ to order that the claimant produce all the authorisation from the Landlord for the whole period. Once he has failed (he has no paperwork), I will then claim the money back off my mortgage company.

 

To complicate it, a new landlord bought the freehold reversion part way through this - but the paperwork there only supports me, in so much as it clearly states that they pre-RTM company is not authorised, hasn't been insuring the building properly, and also they are still billing me for ground rent since I bought the lease - despite this other company claiming for it?!

 

Are people still reading this thread?

 

How would I go about getting this lot brought together and dealt with as one lot?? It would be a N244 for requesting the order, I've got that far, but what exactly would I be asking for? Do I have to apply for it to be allocated to SCT? CPR rules don't rally apply in SCT tho?? I've got loads of evidence - most of it has been submitted before.

 

Am I going about this the best way? Can someone help with the nuances of getting all this brought together, and the claimant ordered to produce his evidence? I have submitted an embarrassed defence to this lot a few times - but the 2014 (post-RTM) case has been stayed since he started it (he saw me get ambulanced away, started action in bulk centre) - I managed to get that done from hospital bed, with repeated stays until now. I have all the paperwork and evidence, if it need anonymising and posting up here, that's not a problem.

 

It's clearly some kind of abuse of process. I will spare you the details of my hospital trips, but there have been many, and he always launches action when he knows I am really ill - as that is how they won ONCE IN DEFAULT.

 

He launched three different cases at three different courts by the way. He could argue that one court got closed down after 2009 case, hence the 2011 case was in a different court, but the third action of 2014 is in the bulk centre.

 

Sorry for waffling on - it complicated by the claimant being a snake.

 

Thanks in advance,

 

Blurred

[andydd]

Can you simply list what you want/what amounts you are claiming ?

 

Is there a claim against you or are you just trying to claim amounts you have previoulsy paid (or mortgage company has paid)

[andydd]

You are looking into it to much, just start a claim, and it will be allocated to SCT track if a certain amount.

 

CPR does apply to SCT, its just that some of the CRP (mainly costs) doesnt apply to claim on SCT.

[BlurredFX]

Is there a claim against you or are you just trying to claim amounts you have previoulsy paid (or mortgage company has paid)

 

There is a claim against me. Started in 2014.

[andydd]

So the Jan 2016 claim is a claim from the new RTM company for amounts pre RTM company (the first RTM company that had no legal right ?)

[DonkeyB]

Given some of the issues have at one point been dealt with by the court, this sounds vexatious.

[andydd]

It would be helpful if you could list

 

1. Claim no 1 2011 - Struck out

2. Claim no 2 etc

 

Its hard to get an exact timeline of whats happened.

 

It sounds like you need to make some sort of strike out/summary judgment application to get parts/all of their claims struck out for abuse of process/re-litiagtion.

 

Dont worry about getting it all in one go, its ok to break claims down and make seperate ones if needs be.

[BlurredFX]

Thanks guys,

 

So the Jan 2016 claim is a claim from the new RTM company for amounts pre RTM company (the first RTM company that had no legal right ?)

 

Correct.

 

Given some of the issues have at one point been dealt with by the court, this sounds vexatious.

 

I could think of some other adjectives, but yes, I think so.

 

Its hard to get an exact timeline of whats happened.

 

I would agree with that.

 

It would be helpful if you could list

 

1. Claim no 1 2011 - Struck out

2. Claim no 2 etc

 

Claim2009: Withdrawn - they claimed I had settled, but nothing was paid.

Claim2011: They won in default, I was in hosital. Claimed from mortgage company while i was in hospital. I had it set-aside. A hearing was eventually scheduled. Other side did not attend. Case was adjourned.

Claim2014: Includes for amounts post-claim2011 up to RTM taking over in Jul2014. Claim includes for first month of RTM, which I had paid.

 

Blurred

Edited December 7, 2015 by BlurredFX
formatting

[andydd]

So whats happened to your claim for set aside of 2011 judgment ? You say adjourned, was it given a date ?

 

Claim 2014, is this same amounts as Claim 2009 ?,

[BlurredFX]

So whats happened to your claim for set aside of 2011 judgment ? You say adjourned, was it given a date ?

 

Claim 2014, is this same amounts as Claim 2009 ?,

 

I am still digging the earliest paperwork out, but Claim2011 was set aside, as I was unable to defend myself due to sickness.

 

Subsequently, a court order from March 2013 (relating to case2011) says it was allocated to SCT. Claimant eventually paid his fee and a hearing was scheduled for end of May. He did not attend. I explained my case to the DJ and also my counter claim for the money back, and the subsequent order says

"Upon hearing the Defendant in person the Claimant not attending

 

IT IS ORDERED THAT

 

1. The claim be adjourned generally with liberty to restore on the application of either party

 

Dated end of May 13"

 

Claim2011 included all the amounts claimed for and withdrawn in Claim2009 i.e. cumulative total since 2006 when I bought the place.

[andydd]

It sounds like Claim 2011 was given default judgment (coz you were ill), but this was then set aside and I assume the claimant could then restore it and this time you have chance of attending and defending.

 

BUT its still in adjournment stage and it hasnt been restored.

 

Perhaps you should ask for it to be restored ?, because the claimants claim it re-litigation thus abuse of process of an earlier claim (hence thread title, although its not DJ, as thats criminal cases), so should be easier to get their claim struck out (perhaps at earlier strike out/summary judgment stage) and your counterclaim goes ahead.

 

OR could you just issue claim/counterclaim on its own as new case ?

 

OR perhaps you could just approach mortgage company and ask them to refund amount, as there was no need to pay it, there was never any realistic chance of property being forfeited.

[BlurredFX]

It sounds like Claim 2011 was given default judgment (coz you were ill), but this was then set aside and I assume the claimant could then restore it and this time you have chance of attending and defending.

 

BUT its still in adjournment stage and it hasnt been restored.

 

It was set-aside, reallocated to the SCT, and the hearing scheduled.

 

Perhaps you should ask for it to be restored ?, because the claimants claim it re-litigation thus abuse of process of an earlier claim (hence thread title, although its not DJ, as thats criminal cases), so should be easier to get their claim struck out (perhaps at earlier strike out/summary judgment stage) and your counterclaim goes ahead.

 

Possibly. There are a few options, the merits of each, I haven't had the opportunity to discuss with anyone.

 

OR could you just issue claim/counterclaim on its own as new case?

 

I'd like to avoid it. I believe the mortgage company need to do this (see below guidance from judge). I claim from mortgage company, they claim from pre-RTM company (which was taken over by post-RTM company - well they took the money anyway and launched claim2014 in their name - kind of)

 

OR perhaps you could just approach mortgage company and ask them to refund amount, as there was no need to pay it, there was never any realistic chance of property being forfeited.

 

At the hearing, the judge offered me a couple of options and said he was leaning towards adjourning, so I agreed and that was that. I was ill again soon afterwards.

 

The judge said, with the caveat he wasn't offering advice;) that I should approach the mortgage co and get it back off them as they had a duty of care to me. He also said that I seemed more than capable of doing to. He was impressed with my submissions etc. As best I recall, he also said about he was hesitant to strike another claim out as he could not be sure the LL hadn't joined the action at the last minute. LL is still sending me bill from 2006 ground rent (before he bought freehold reversion), so he has nothing to do with it, but judge didn't know that at the time. I have letters from new LL that pre-rtm company isn't properly authorised etc.

 

I was hoping to be able to ask for an order for the whole lot (claim2009, my counterclaim, and claim2013) to be dealt with together.

 

Hmmmm, perhaps that isn't possible - maybe I need to approach the mortgage co? There is little chance of getting any sense out of them before early Jan 2016.

 

All this leaves me in a little bit of a quandry... and we haven't even got to claim2014 yet!!

 

The claimant has played a very dodgy game throughout, and this is why we are in this mess. It's just how to best resolve it... any suggestions???

[andydd]

Any second claim by the LL/RTM company that has been struck out/given judgment/discontinued/agreed is a abuse of process to attempt re-litigation and should be easy to get struck out, you can also strike out partially bits of a claim, you dont have to do the whole thing.

 

There is recent high court case about this (it is coincidentally about a leasehold issue but that doesnt really matter), a claimant CANNOT have a second attempt except in exceptional circumstances > Dolphion Square v Friends Provident EWHC 2302. (Couldn't find transcript online but Ive got copy)

 

You dont have to lump everything together, might be easier to keep it separate.

 

As for mortgage company, there is little law/guidance about how/when the mortgage companies should pay a LL/Man Co., it should only be as absolute last resort to prevent forfeiture but some just pay up almost straight away and with little discussion with the mortgage payer. First step would be to chase them, asking why they paid, did they correspond with you, etc....otherwise they are effectively adding to your mortgage without consent. In my case, mine wrote to me.

[BlurredFX]

Any second claim by the LL/RTM company that has been struck out/given judgment/discontinued/agreed is a abuse of process to attempt re-litigation and should be easy to get struck out, you can also strike out partially bits of a claim, you dont have to do the whole thing.

 

Should Plan A be to get the whole lot struck out due to no paperwork? From what the judge said last time, I would be as well to find all the paperwork from the time, and see exactly what I have. I think the mortgage company just handed the money over without any proper question. I vaguely recall the letter - it said I shouldn't call the mortgage co, and direct all my queries at the Claimant. Could I DPA request the Mortgage Company to see what they have? I will have to finish going through and sorting all the paperwork (couple of shoes boxes of various stuff)

 

There is recent high court case about this (it is coincidentally about a leasehold issue but that doesnt really matter), a claimant CANNOT have a second attempt except in exceptional circumstances > Dolphion Square v Friends Provident EWHC 2302. (Couldn't find transcript online but Ive got copy)

 

You dont have to lump everything together, might be easier to keep it separate.

 

I was thinking and hoping I could lump it all together, as it all depends on the same thing - does the claimant have the paperwork from the LL to back his position. Despite being ordered to produce in in claim2009, he has never produced anything. If he does, he's got me, and I will end up fighting on his not serving notices correctly, and limiting his demands to 18 months and things like that. I think I threw them all in on my defence of claim2009, but they were never discussed, I will check.

 

As for mortgage company, there is little law/guidance about how/when the mortgage companies should pay a LL/Man Co., it should only be as absolute last resort to prevent forfeiture but some just pay up almost straight away and with little discussion with the mortgage payer. First step would be to chase them, asking why they paid, did they correspond with you, etc....otherwise they are effectively adding to your mortgage without consent. In my case, mine wrote to me.

 

As I mentioned above, I am sure I have some brief communication somewhere. On statement from mortgage co in 2012 it is itemised as "service charge and ground rent" - but I have bills from the LL since showing that rent hasn't been paid, ever. It's all evidence. It would be interesting to see what they wrote to the mortgage company, to see what lies they told. Would this be done with a Data Protection Act request?

 

So... I am thinking:

Claim2009 - dead and buried - but I can use the orders as evidence of his abuse of process etc., if needs be.

Claim2011 - I apply to restore?? Or just leave for now, while I get the details off the mortgage company. DPA request?

 

Claim2014 - The stay expires early Jan 2016, so what do I do with that? Defend it in the same way I have defended the other two? This is why I wanted to bring it all together. OR is there possibility of getting claim2014 struck out as it is the post-RTM company chasing pre-RTM claim? He seems to think the post-RTM co has taken on the rights and responsibilities of the pre-RTM company - he said as much to me at a recent owners meeting. Could I get claim2014 struck out as it is somehow an abuse of process, as he is perfectly at liberty to apply to restore his claim2009? claim2009 and claim2014 are based on the same case, and my defence is the same, so it seems silly.

 

Or could I apply for claim2014 to be stayed once again (it's been stayed 18 months), while I restore claim2011, on the basis that if he can prove his case in claim2011, then claim2014 is no contest, and I will have to pay.

 

And I will go through the last couple of shoeboxes of paperwork and bills and see whatever else i deemed prudent to keep, then get a DPA request tot he mortgage company?

 

My whole case rests on if he has LL authorisation or he has just assumed the rights and lied about it. All the evidence points to liar liar pants on fire. It's even in black and white from new LL. The whole lot rests on that point. But then, strategically, it could be better to break it down in order that if he produces some paperwork, I can argue the toss on all his bills being wrong, not to prescribed terms and whatever else.

 

I think I am getting my head round it. His litigation is so messy, because he can't dodge my argument! Which tactics are the best?? Whadd'ya think?

[andydd]

Theres a bit too much to get my head around.

 

Dont think there is any need to get mortgage company payment mixed up with court claims, there is no legal obligation or an order for mortgage company to pay the LL, its purely upto them, shouldnt think you need a DPA first, just ask them, why they paid ?

 

I cant really advise on what steps to take as I dont have a full understanding its all a bit too messy but Ill add that any claims that are a duplicate CANNOT be tried again.