Managing Agent leasehold Property 4th Court Claim same issue.

[BlurredFX]

Hi Guys,

 

About 12-18 months ago was in dispute with a third party (managing agent for my long leasehold property) over fees.

 

To cut a long story short, with the help of CAG, they ended up withdrawing their case and wearing the costs!

 

HOWEVER, now the very same company has gone to a different Court (Following my local one being shut down) and, due to my being in hospital as an in-patient, obtained a Judgement in Default. It has a different case number and everything.

 

Now clearly I need to apply for set-aside using the court form etc.

 

Could someone please advise on the form of words I should choose? Which legislation to quote etc. Is it simply a case of pointing out the the Court that this case has already been tried, give them the relevant details, and hope for a hearing where I can argue for the set-aside?

 

I think it would be best to provide the main documents from the first case, showing the orders they failed to comply with etc?

 

Hope this is clear.

 

Thanks everyone

 

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[DonkeyB]

To what stage did the previous case get? Did you enter a defence? File AQs? Get the track assigned or a hearing? Need to know a bit more. There are instances where they could relitigate.

 

The set aside should be simple, as you were provably in hospital, and it sounds as though you have some kind of valid defence.

[AndyOrch]

The case has not been tried it was discontinued, and we know thats easily got round with a fresh application.

 

Andy

[BlurredFX]

The case has not been tried it was discontinued, and we know thats easily got round with a fresh application.

 

I am not sure I understand this?

 

To what stage did the previous case get? Did you enter a defence? File AQs? Get the track assigned or a hearing? Need to know a bit more. There are instances where they could relitigate.

 

The set aside should be simple, as you were provably in hospital, and it sounds as though you have some kind of valid defence.

 

AQ's went in etc., they had no paperwork, I submitted embarassed defence, we had the first hearing, case was adjourned for them to provide documents. They failed to produce said documents, and discontinued the case.

 

Thanks for the advice!

 

 

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[DonkeyB]

Well, that’s a better scenario. They should have applied to the court to for permission to re-litigate if the case was brought on essentially the same facts.

 

You need a copy of the claim form to establish if this is the case.

[Jasper1965]

Discontinuance and subsequent proceedings

 

38.7

 

A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if –

(a) he discontinued the claim after the defendant filed a defence; and

 

(b) the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.

[BlurredFX]

Excellent info, thanks very much

 

OK, now...

 

I am looking at form N244 - What order am I asking for the Court to make? I presume that the CCJ be set-aside.

 

I am currently on benefits, and therefore I am hoping not to have to pay any fees. I have looked at EX160a - is this the correct form. Do I put this form in the post with the N244?

 

Thanks once more,

 

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[DonkeyB]

I would suggest you first try to get hold of a copy of the second claim form. You need your facts first – you can't claim the particulars were the same if you don't know.

[BlurredFX]

I would suggest you first try to get hold of a copy of the second claim form. You need your facts first – you can't claim the particulars were the same if you don't know.

 

Ha ha - correct. I suppose I was getting ahead of myself here! I will chase them down this afternoon!

 

[BlurredFX]

Apologies for the thread necromancy, but I have been in hospital as an in-patient for 7 of the last 10 months. In that time, i have also had to convince the DWP that I am not, and wasn't on a specific date in 2011, fit for work - and go to a tribunal in order to do so. Mission accomplished there and I am now in the Support Group. I have been out of hospital for little while, living on benefits (Court fees??). Health is currently stable, but a long way from good, and further interventions are likely. Anyway, I digress.

 

Back on topic: They got the Judgement in default, and then took the money off my mortgage company! I have got the paperwork together, and it is certainly the same issue, the same figures etc., except the time frame is slightly longer.

 

I will need to explain to the Court that I was very ill at the time, just prior to going into hospital. I have rock solid evidence from doctors and consultants that I gained during my DWP case.

 

That will be my reason for applying for a set aside, but I think I will also add the information that this lot has been to Court, at a different Court under a difference case number and perhaps go for a strike out on this case?? They can then apply to restore the original case ( as per CPR38.7??)- and I am happy for them to do this as they never had the paperwork anyway!! The toe rags waited until I was in hospital, then struck while i was literally on life support!!!

 

I am not sure on how to proceed.

 

Are people still reading this thread or would I be better starting a new thread? Could the group be so kind as to help me with some of the specifics?

 

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[DonkeyB]

Bit busy, but will look over – should be straightforward. Looks like a straightforward abuse of process.

[DonkeyB]

Get yerself an N244...

[BlurredFX]

Bit busy, but will look over – should be straightforward. Looks like a straightforward abuse of process.

 

Thanks very much for this, I thought that was what you would say. It's a relief to here someone not involved to say it.

 

Get yerself an N244...

 

Roger that. I will get started!

 

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[andydd]

Hi there.

 

Ive got quite a bit of knowledge of leasehold/managment company issues so hope I can help.

 

It does as suggested sound like an abuse of process, ordanarily someone cannot bring the same case again if it has already been judged (this would be straight forward abuse of process) or bring again after discontinuing without asking permission (CPR 38.7 as mentioned above).

 

Going back to the first post, I assume you were in hospital and therfore missed any paperwork about the 2nd case ?., also did the mortgage company contact you about them paying ?

 

Andy

[andydd]

It appears to me there are two things to put in a N244 app.

 

1. That judgment be set aside as you had no chnace to defend as you didnt get paperwork as you were in hospital.

 

2. The the case be struck out anyway for failure to ask courts permission to being identical case again as per CPR 38.7, and point out they were attempting to abuse court procerss by starting in different court.

 

Have you a defence for the original management fees ?. Not validly demanded, not in lease, unreasonable, reaquest transfer to LVT, ? , etc

 

Andy

[BlurredFX]

Hi there.

 

Ive got quite a bit of knowledge of leasehold/managment company issues so hope I can help.

 

It does as suggested sound like an abuse of process, ordanarily someone cannot bring the same case again if it has already been judged (this would be straight forward abuse of process) or bring again after discontinuing without asking permission (CPR 38.7 as mentioned above).

 

Going back to the first post, I assume you were in hospital and therfore missed any paperwork about the 2nd case ?., also did the mortgage company contact you about them paying ?

 

Andy

 

Hi Andy,

 

I believe you have helped me prior to this, as the issue has been ongoing for 3 years. See link below

 

What actually happened in Jul/Aug 2011 is three things.

 

1) Original Court got closed in the shake up

2) at around the same time they issued the second claim, in a different Court. I never received any paperwork, until I got a form of Judgement. No notification that a claim had been made.

3) At the time I was right out of the game - and have a couple of letters from doctors saying this. There was on overlap, though, and it is then that they struck.

 

It appears to me there are two things to put in a N244 app.

 

1. That judgment be set aside as you had no chnace to defend as you didnt get paperwork as you were in hospital.

 

2. The the case be struck out anyway for failure to ask courts permission to being identical case again as per CPR 38.7, and point out they were attempting to abuse court procerss by starting in different court.

 

Have you a defence for the original management fees ?. Not validly demanded, not in lease, unreasonable, reaquest transfer to LVT, ? , etc

 

Andy

 

Original thread below. Basically, I used some stock documentation from this site, modified accordingly to firstly request more information. They came up with SOME fraudulent docs, which the Judge spotted, and the DJ ordered them to produce the relevant authority and proper documents. They couldn't. They withdrew the case.

 

The nub if it all lies in we originally had an absent LL, informal co set up amongst residents to look after the building. The Lease provides for a relationship between me and LL, no mention of third party. No letter appointing a third party. No formal documentation authorising Prop Mgmt Co to act on behalf of informal residents company, no documentation tieing me to the informal management company and no contract between me and them. Nowt. But hey have been maintaining the building, albeit poorly and at great expense. But that lot is something we will have to come back to i fear

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?213905-County-Court-Claim-by-Housing-Management-Company

 

I think your steps, outlined in your prev post Andy are what I want to do

 

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[andydd]

Aha..I thought I may have helped earlier.

 

Well..your first step is to clearly get judgment set aside (so you can then go on to fight/defend case), although its worth asking that it be struck out completely (cpr 38.7).

 

You may be asked to show evidence that you do indeed have a valid defence to show the court its worth setting aside and having a proper hearing.

 

I had similar case recently, my landlord starting case - didnt pay fee and was struck out - he started same case again about 10 months later - i put in summary judgment/strike out application saying he had has his chance and messed it up - judge agreed and their claim thrown out so I didnt have to get into tghe nitty gritty of landlord law (although I had good case anyway).

 

Andy

[BlurredFX]

You may be asked to show evidence that you do indeed have a valid defence to show the court its worth setting aside and having a proper hearing.

 

HAVE I!?!? I defended the first case, it went to hearing, case adjourned for us to get our heads together and come to an out of court agreement - as that's actually what I wanted at that point. The court also ordered that they produce the proper paperwork, which they also failed to comply with

 

I think it would be best to include copies of all this in my N244, and go for an order along the lines of:

 

"I request this claim be set aside and struck out as I was ill when this (second) claim was issued [documentary proof]. This claim is materially the same as the original case, which had already been withdrawn by the claimant. The claimant was unwilling or unable to comply with the order to produce the documentation he sought to rely upon before he withdrew his case.

 

It appears he started this second case, having become aware of my rapidly deteriorating health, in order to obtain a judgement in default.

 

This is a clear breach of CPR38.7, and the claimant is clearly at liberty to pursue his original claim and apply to restore his original claim, should he so wish."

 

If I draft that up, get it posted up here, and start preparing an N244, am I heading in the right direction?

 

Thank you so much guys; Andy it's good to know there is someone with relevant experience, and many thaks for your help here and previously. DonkeyB, thank you also, I value your input and hope you can continue to help.

 

Respect,

 

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[andydd]

I only mention the evidence/defence bit as a Judge may not want to set aside a case and effectively re-try it if you have no possible defence but in this case you have so it may be worth mentioning (perhaps summarized) that you have a good defence worth pursuing.

 

I'm aware of this because in my case, a request for summary judgment for abuse of process (starting same case again) must show that there is absolutely no possible reaosn to continue or that the abuse is so bad the case should be instantly chucked out, which I clearly did...although I was helped by the other sides solicitor being a right dingbat and not putting forward any evidence.

 

Your main case is the CPR 38.7 breach although it may be possible the other side does ask for permission or a hearing to seek permission to 'have another go' where you will have to fight to show it is unreasonable to let them have another go..and point out any weakenesses and/or other abuses they may have done.

 

Andy

[BlurredFX]

draft order:

that claim 2ND CLAIM be set aside and struck out, as it is an abuse of process (CPR 38.7)

details:

The claim number 2ND CLAIM is materially the same 1ST CLAIM. It is brought on the same material facts, copies of both applications attached {{EVIDENCE}}.

 

The claimant launched case 1ST CLAIM in 2009, which i defended. I requested he supply evidence to back up his claim {{COPY ENCLOSED}} but he was unable/unwilling to suppply such. This left me with insufficient particulars to plead, and I was forced to submit an embarrassed defence.

 

Despite being ordered by the court {{EVIDENCE}}{{DATE}}, the claimant failed to produce any valid evidence to support his claim. He was also unable to provide any valid evidence at the hearing on {{DATE}}. He did purport to send copies of certain document to myself and the court, but neither the court nor myself received any actual documents. The court simply received a covering letter and I received nothing. This was commented upon by Judge Toomanyrusks at the time, as well as his indication that should be asked to determine costs at that point, they should be paid by the other side.

 

The case was adjourned, pending informal resolution of the dispute. Despite my efforts, explanations, and attempts for a bi-partisan resolution (which included that we form should form an RTM company), I was sent a final demand {{CHECK}} and {{EVIDENCE}}, on the last day the claimant could apply to respore, which in no way reflected my comments or the agreements made at that meeting that had been held.

 

Despite his lack of evidence, the claimant applied to restore his case 1ST CLAIM on {{DATE}}. This was granted by the court, but the claimant withdrew his case on the {{DATE one week later}}. I spoke to {{NAME}} on the {{DATE}} at SSSS County Court to confirm this.

 

This was the last I had heard of the matter until I received a Judgement in Default for 2ND CASE in July/Aug 2011 {{EVIDENCE}}. At this time I was unable to defend the case due to firstly not receiving the original documentation, but more importantly I was completely unwell at the time and not able to respond due to being (what would become) a long term hospital in-patient

 

At the beginning of 2011, my health started to take a serious turn for the worse, and I was signed off. In {{DATE}}mayjune I attended a DWP assessment, and I was subsequently placed in the Support Group. This means that for DWP purposed was and remain completely unfit for any type of work, and therefore not required to seek work - under the new rules implemented by the coallition Goverment, this is a very small percentage. Throughout this time my health was steadily getting worse.

 

At around JUNE JULY 2011, I was becoming seriously ill, {{EVIDENCE FROM GP AND CONSULTANT}} and I was admitted to SSS General Hospital where my condition took a serious turn for the worse. I was admitted to the regional specialist unit at RRR hospital. I was completely unable to eat or drink, and had been this way for some time. From a healthy 12 stone, i was reduced to a 7 stone skeleton. I remained in Hospital almost full time from July 2010 until very recently. I am still far from well, essentially being kept alive by a network of tubes running in and out of my body. I am fed naso-jejunally which means I still have to be fed up my nose through the night, and other tubes to drain the internal sepsis.

 

Since my latest discharge (May 2012) from hosiptal, I have had to regain control, of amongst other things, overdue payments from the DWP and this represents the first opportunity to deal with this matter. There is no fixed time frame to be re-admitted, though it could happen, leterally, at any time.

 

In light of the above, I respectfully request that 2ND CLAIM be set-aside and struck out. The claimant is clearly at liberty to make an application to restore his original claim 1ST CLAIM.

 

If the claimant elects to restore 1ST CLAIM, I would be able to continue to defend his claim based on (but not exclusively):

 

a) a complete lack of documentation establishing any link between myself and his company, or the company he claims to represent; any instruction from the Directors of the company he claims to represent and; a complete lack of authority from the Landlord for those companies to act on his behalf.

 

b)a complete lack of any properly executed demands

 

c) the fact that the building has not been insured at all, not even by him, despite his claim including for these costs {{EVIDENCE}}

 

d)the sum claimed includes sums for a "Sinking Fund", despite there being absolutely no provision in the lease for such a fund.

[andydd]

Looks good to me, although perhaps the set aside and the strike out application should be 'seperated' more as they are seperate things, perhaps you could also mention that had you known about the 2nd application you would of requested a transfer to an LVT as that would be correct place for landlord/tenant related disputes.

 

Andy

[BlurredFX]

Just thinking through things, and i might be as well to mention the fact that having mis-represented his case to gain Judgement in Default, he then went on to present himself as the Landlord in order to get a possession order and claim the money. What do we think?

 

I am still digging out a few bits of paper to support everything, the medical evidence is even better than a remember, it covers a month before anything from them right upto today and going forward!

 

had you known about the 2nd application you would of requested a transfer to an

I would tend to agree

 

Blurred:)

[andydd]

Looks good. I might be tempted to change b) to

 

Service charge demands did not conform to provisions of lease (if applicable ?)

 

and/or did not conform to revelvant statute laws (if applicable, i.e s47/s48 - landlord adress or service charges - summary of rights

 

Is there any ground rent element ?

 

My landlord has finally (after 5 years) realised all of his demands have been wrong (summary of rights was in wrong font size !), hes resent them but they are still wrong (a tiny technicality but all references to LANDS Tribunal should be changed to UPPER Tribunal) so still not payable, I'm waiting for him to start court action.

 

Andy

[BlurredFX]

Is there any ground rent element ?

Yes, as best I remember. Just waiting for docs to arrive over the weekend - they've ended up all over with various friends a relatives.

 

Good job you reminded me about this as well, as I have a Ground Rent demand from the new Landlord. More abuse of process?? Misrepresenting his position (claiming to act as LL) to the Court???

 

Which also reminds me, the DJ in the first claim pointed out to him that he would not give possession as he wasn't the Landlord!! I just can't believe he's acted like this, he's supposed to be a professional. Don't start me.I just want my thousands of pounds back, the little rat bag!!

 

My landlord has finally (after 5 years) realised all of his demands have been wrong (summary of rights was in wrong font size !), hes resent them but they are still wrong (a tiny technicality but all references to LANDS Tribunal should be changed to UPPER Tribunal) so still not payable, I'm waiting for him to start court action.

If I recall correctly, you live in a house converted to flats??? I could easily be wrong. I hope, really d hope, that i don't have to get down to this level of nitty gritty. Sounds just terrible. Where's your thread? Do you get much sympathy from the Court over seemingly "little" things??

[BlurredFX]

perhaps the set aside and the strike out application should be 'seperated' more as they are seperate things

What's the difference between the two? Set aside means it goes back to "square one", strike out means it get's "thrown out"??