Managing Agent leasehold Property 4th Court Claim same issue.

[steampowered]

Do you know exactly how much you were awarded or does the order just refer to costs? If it just says costs my understanding is that you cannot enforce this until you have had your costs assessed, see CPR 44.7.

 

 

(1) A party must comply with an order for the payment of costs within 14 days of –

(a) the date of the judgment or order if it states the amount of those costs;

(b) if the amount of those costs (or part of them) is decided later in accordance with Part 47, the date of the certificate which states the amount; or

© in either case, such other date as the court may specify.

[steampowered]

Yes they are behaving very strangely.

 

I think you are following the right approach. It is probably best to get the whole thing resolved including your counter-claim ( remember to ask for costs in relation to your counterclaim, so far you have only been awarded costs of the strike out). Generally it is simpler to present a schedule of costs at the hearing ask the court to fix the amount there and then, but I guess you are going to need to do an assessment anyway to get costs from the strike out.

 

Once the counterclaim has been resolved you can then try to get the strike out costs assessed.

[steampowered]

If it was me, and they are just refiling the same or similar case, I would get a solicitor on board to file a Defence and a strike-out application. The solicitor should be able to claim his/her costs from the other side. Perhaps the Claimant will stop coming back to this over and over again once they get hit with the bill.

 

This would be a good time to prepare your bill of costs for the previous proceedings and get these assessed. I believe the current rate for litigants in person is 18quid an hour. Your estimate of the time spent dealing with the case should be realistic (even if it runs to over a hundred hours).

[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.

[steampowered]

I understand that there are currently three live claims - the 2011, 2014 and 2015 claims. What is the difference between them?

 

If the 2015 claim covers the same subject matter as the earlier 2014 claims, then the claimant should be asking to restore the 2011/2014 claims rather than issuing a new claim. I would issue a defence to the 2015 claim on the basis that the further claim is an abuse of process and on the basis that you don't owe money - you are allowed to submit an 'either/or' type defence.

 

I would counterclaim for the money paid to your mortgage company. Remember that the bank have paid this person already. If the bank paid you back, the bank would be out of pocket. I doubt the bank would reimburse you unless they have been reimbursed by the claimant - which seems unlikely.

 

At the same time, consider issuing an N244 asking for (1) the 2015 claim to be struck out, (2) asking for summary judgment on your counterclaim and (3) requesting costs for time spent on this at the litigant in person rate of £19 an hour (Practice Direction to CPR 46, paragraph 3). At the same time you could also seek an order consolidating the various different proceedings. You'd need to attach a witness statement clearly but concisely explaining the history to the various outstanding court proceedings and copies of the various statements of case/court orders that have been made.

 

At the same time, it may be worth writing to the claimant explaining what you are planning to do and that you intend to seek costs given their conduct. And state what you propose should happen to close this out. This would presumably involve the claimant withdrawing all outstanding claims and confirming that your payments are up to date, and you agreeing not to seek costs. The letter should be headed 'without prejudice save as to costs' - so that if you get rebuffed, you can use it to seek costs by demonstrating that you tried to sort out this mess but the claimant failed to cooperate.

[steampowered]

Hello - have a read of https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part24 and https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part24/pd_part24 to get an idea of procedure.

 

You would apply for this by filing form N244. In the box you say something like 'I intend to apply for an order that: (1) the Defendant be granted summary judgment under CPR Part 24 against the Claimant, on the grounds that the that the Claimant has no real prospect of succeeding on the claim, (2) the Particulars of Claim be struck out under CPR Part 3 as disclosing no reasonable cause of action, and (3) the Claimant pay the Defendant's cost of the action on a summary assessment basis.' You would then attach a witness statement.

 

I think you've done a great job making it clear what you are asking the court to do, but I think your statement needs to be a little more detailed with regards to the facts. On CAG we have the benefit of being able to read a 15-page thread but the judge will not have this. When the judge comes to read your statement he will know nothing about your case and he does not have time to play detective. You need to provide a clear, concise, factual summary of what has happened and what has already been litigated.

 

I also think you should be attaching the key documentation from the previous cases to your witness statement. The history of all this is obviously key and so you need to provide the judge with easy access to the documentation you are talking about.This means the claim form, particulars, defence and any court orders made in the other cases. You should also be specifically referring to the relevant court orders in your statement so that it is clear to the judge exactly what you are talking about - for example, if you are saying the 2011 case was stayed, you refer to the specific order which says the case was stayed. The documents should be in chronological order.

 

The easiest way of doing this will probably be to have short, numbered paragraphs briefly stating the key events that have taken place in chronological order. I would probably structure your statement as follows: (1) one sentence summary of what you are asking the court to do, (2) clear chronology giving the factual background, (3) clear explanation of what you are asking for and (4) attach all documents the judge may need to read.

[steampowered]

Can you remind me what stage you are at with this case and what has been filed?

 

I assume the application which is due to be listed is your application for summary judgment. If so, a hearing will be arranged to hear your summary judgment application. You need to read and understand https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part24. In particular https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part24#24.5 for the rules around serving evidence you wish to rely on at that hearing.

 

You do not have an automatic right to amend your defence. If you want to amend your defence, you will need the permission of the claimant or the permission of the court.

[steampowered]

How would I go about adding to my defence in general? The claimant won't co-operate, so how do I request such?

Read https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part17#17.1. It would probably ultimately mean making an application to court on your N244. Perhaps this could be dealt with at the same hearing as the hearing for your summary judgment application.

 

All as I would like to add is that I withheld Service Charges under Section 21B (3) of The Landlord & Tenant Act 1985 as the property wasn't being maintained properly or at all, and include evidence of the same.

If your defence already makes the point that the property was not being maintained, it is not necessary to amend your defence to a reference to the L&T Act. The defence needs to state the points you are making but does not need to provide all details.

 

If your defence does not refer to the property being maintained, then it may be worth amending your defence. You may find it difficult to introduce totally new points at a trial if they have not been mentioned in the defence.

[steampowered]

I suspect CPR 3 is what you are looking for:

 

I CASE MANAGEMENT

The court’s general powers of management

3.1

(1) The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.

(2) Except where these Rules provide otherwise, the court may –

(a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);

(b) adjourn or bring forward a hearing;

© require a party or a party’s legal representative to attend the court;

(d) hold a hearing and receive evidence by telephone or by using any other method of direct oral communication;

(e) direct that part of any proceedings (such as a counterclaim) be dealt with as separate proceedings;

(f) stay(GL) the whole or part of any proceedings or judgment either generally or until a specified date or event;

(g) consolidate proceedings;

 

If I were you, I would want to advance the counterclaim. It will be easier and quicker to claim from the claimant directly rather than trying to get your mortgage company to do it.

[steampowered]

Nice one, ta. I will go in armed with both! It won't hurt, and will build credibility with the Judge if I get put through the wringer like I did last time! Thank you.

CPR 3.1 (g) deals with consolidation of separate sets of proceedings.

 

CPR 17 deals with amendments to statements of case. Statements of case are things like particulars of claim and the defence. This is not relevant to changing the dates on court orders (that is just done by way of a simple application under the court's general case management powers CPR 3).

 

CPR 19 deals with the addition and substitution of parties. This means changing the identity of the claimant or defendant, or adding new claimants or defendants. This would only be relevant if you were adding the mortgage co but that sounds unlikely. CPR 19 is not relevant to whether or not your counterclaim gets struck out.

 

I kind of agree, but the Judge said that isn't how it'll work. He certainly put every conceivable caveat in that he wasn't giving me advice. The Judges logic: I claim of mortgage co, as they have a duty of care to me and have put the bill on my account, and mortgage co claim off the claimant. At no point has the claimant taken anything from me, so I can't ask him for it back.

 

By the way, my counterclaim in claim2011 is for the £6k the claimant claimed off my mortgage company under threat of forfeiture (don't forget claim2011 was won by the claimant in default. Subsequently I had it set-aside and then adjourned - at which point he started claim2014!!)

 

I will claim costs off the claimant, if it goes my way. I think the counter-claim is dead. What's your logic for my claiming of the claimant? The Judge certainly hadn't had time to consider it fully, he said as much, and I certainly don't want to miss a trick! It's not like Judges don't make mistakes... so how would I go about it? Claim damages? Coz theres loads of them including the fact I've been unable to remortgage because of this. Also the fact he has misrepresented the Court and all kinds, I think it's criminal but that's another story.

 

I would be careful about reading into off-the-cuff comments made by the judge. Those are not an actual decisions and I doubt they had been properly thought through.

 

It sounds to me like your counterclaim is still live and out there (remind me of the status - am I correct to think it was stayed?)

 

I think you would find it a nightmare to try and get that money back from the mortgage company, for several reasons:

- The mortgage company has no way of investigating whether or not the service charges claimed by this person were legitimate, short of asking the freeholder.

- The mortgage company will not be prepared to be left out of pocket by repaying you the money without receiving anything from the freeholder.

- The mortgage company is very unlikely to start suing the freeholder. Who is going to pay for it to bring a court claim and instruct solicitors? Particularly as this would be a small claim and hence the mortgage company is unlikely to be able to recover any of its legal costs.

- Your mortgage T&Cs may not require the mortgage company to pay you back anyway. Have a look - I doubt there is anything in there which requires them to do this.

 

Realistically, I think you probably need to get this money back from the claimant, if you ever want to see it again. The legal basis would be negligent misstatement (if the freeholder was simply careless in claiming this money from the mortgage co) or the tort of deceit, which is also known as civil fraud (if the freeholder acted fraudulent, meaning he knew he was not entitled to this money, when claiming it from the mortgage co). In essence, the freeholder had a duty of care to you to claim the correct service charge, and his wrongful statement to the mortgage co has caused you to incur a liability to your mortgage co.

[steampowered]

My loose plan was to get each claim thrown out, then approach the mortgage company, show them the orders, and say give me my money back, not my problem you paid out money that wasn't due, take it up with whomever you paid - nowt to do with me, just put my account right please.

 

That sounds sensible. You can keep revival of the counterclaim in your back pocket if you don't want to go there for now.

 

As I said I'm a bit sceptical that the mortgage co will just roll over and leave themselves out of pocket, but there is certainly no harm is asking.

[steampowered]

Good luck!

[steampowered]

Well done!

 

Personally, I think that 21 days should be enough time to put together a Defence to his amended claim. Its up to you but I think it might be worth waiting to see what he says rather than working yourself up in the meantime. You could use the spare time to make sure you have got your documents together and perhaps put them in a logical order (i.e. in chronological date order).

[steampowered]

The Claimant was only asked to provide a Particulars of Claim, not his evidence ... let alone a bunch of irrelevant evidence.

 

4. If the Defendant wishes the application of today's date to be relisted (upon consideration of the fully particularised Particular of Claim), the Defendant should write to the Court, at the same time as filing the defence, with a copy of this order, asking the Court to relist the application for hearing with an estimated length of hearing of 1 hour 30 minutes (30 minutes of it being reading time). In the event that the application is listed, both parties to file and serve detailed statements addressing the subject matter of the application 7 clear days before the hearing.

It seems to me you should follow the process suggested here and resume your previous application for this to be struck out.

 

As stated above, you can simply ask the court to relist the application for hearing, and when you have a hearing date would then provide a witness statement together with your evidence 7 clear days before the hearing (so you ignore the day of the hearing itself and the day you serve ... so in reality needs to be a bit more than 7 days).

[steampowered]

Admittedly I only looked at the attachment briefly, but it doesn't look to me like there is a POC in there. There is a witness statement but that is a completely different document.

 

I would proceed on the basis that he hasn't provided a POC and therefore hasn't complied with the order.

 

In reality the judge may well let his witness statement stand as the POC, despite its non-compliance with CPR 16, but you can cross that bridge when you get to it.

[steampowered]

The judge has already set out in the order how he wants this to proceed to another hearing if the Claimant doesn't serve a proper POC, so it seems to me you should just follow that process.

 

The judge has directed a time estimate of 1.5 hours, including 30 minutes for the judge to read the papers. This means the hearing itself will probably only get an hour. In that time you will not have time to go on a detailed point-by-point rebuttal of everything the Claimant has alleged (and in any event that is not the purpose of strike-out/summary judgment hearings, which are designed to be mechanisms for getting rid of hopeless claims).

 

Therefore you will need to be a little bit selective as to what you put in the witness statement provided 7 clear days before the hearing once it is listed (as directed in point 4 of the judge's order), and what you say at the hearing - focus on the key points.

[steampowered]

Please read https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part16#16.5 regarding what should go into your defence.

 

A defence is focussed on what allegations you admit or don't admit. The defence doesn't provide your "evidence of fact" and it shouldn't contain lots of general giff-gaff. That stuff goes into witness statements.

 

Assuming that you are resurrecting your application for summary judgment as suggested by the judge, you need to think strategically about what goes into your defence (which you provide by the date stated in the order) and what goes into the witness statement (which you provide 7 clear days ahead of the summary judgment hearing as stated in the order).

 

While the claimant has completely failed to provide a concise summary of what he is claiming (as he was required to do), you should still make an attempt to keep your defence brief and focussed on the actual case in hand. In essence you are simply denying his claim that you owe a service service charge and setting out the particulars of your counter claim.

 

Items such as "examples of his complete ineptitude" are not appropriate for inclusion in a defence and should go into a witness statement (if they are included at all). If you include that sort of fluff in the defence the judge's eyes will glaze over. From reading the defence he needs to be able to immediately understand what the claim is about, why you are denying liability and why you are counterclaiming. I am thinking something like 2 pages is appropriate for the defence. The witness statement can be longer. If the judge wants more detail he can read the witness statement.

[steampowered]

A defence is supposed to be a concise statement of what facts are admitted and what facts are denied. See https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part16#16.5. You don't need to give enormous amounts of background and you don't need to give lots of legal analysis. You can mention non-compliance with orders etc. but keep it brief as this is not really the purpose of the defence.

 

I think your defence needs to go back to the drawing board. It is confusing to me having read this thread's 18 pages over the last couple of months, the judge will have no chance. The judge must be able to read your defence and very quickly understand the key points regarding what your case is about and why you are denying liability. Remember that you are trying to give the judge a clear basis for making a decision in your favour, which he may ultimately need to develop into a written judgment.

 

I have to confess I don't really understand the RTM issue. I might understand if I read back through the thread but don't have time to do that at the moment. Please clarify if you'd like input on that.

 

Recognising that you don't have much time, I think you need to keep this concise. But you do need to start your defence at the beginning and finish at the end. Try to focus on the fundamental point of whether or not you are liable for the claimed service charges, and avoid getting dragged too much into the 'noise' around other things which have happened (such as the poor state of the Claimant's documents). I'd suggest using concise numbered paragraphs which tell your story in a clear manner from the start to the end. A very simple structure is as follows:

 

1. It is admitted that the Defendant is the leaseholder of the property at [xxxx] and the Claimant is the freeholder of that property.

2. It is admitted that [briefly set out other relevant background which the Claimant has alleged that you accept. For example is it admitted that you are responsible for paying service charges under the lease?]

3. [set out a very concise history as to what has happened so far with the claim - perhaps a few bullet points.]

4. The nature of the Claimant's claim is not entirely clear from the documents submitted to the court, which do not contain a concise statement of the facts on which the Claimant relies. It appears that the Claimant's claim rests upon a claim for service charges. It is denied that the Defendant is liable for outstanding service charges or that the Defendant is liable to the Claimant at all.

5. [set out individually numbered paragraphs going through, in turn, each specific reason why you feel you are not liable.]

 

COUNTERCLAIM

 

6. [insert a brief paragraph describing what happened with the Claimant asking mortgage co for money he wasn't entitled to.]

7. The Claimant owed the Defendant a duty of care not to issue incorrect claims for service charges to the Defendant's mortgage lender being [bank name]. As a result of the Claimant's conduct as set out in paragraph 6, the Defendant has suffered loss and damage through an increased liability to [bank name] under the terms of his agreement with [bank name.]

8. Accordingly the Defendant claims [£amount] and interest on such sum under section 35A of the Senior Courts Act 1981 at such rate and for such period as the court thinks fit.

 

STATEMENT OF TRUTH

[Remember that you need this - use a template if you are unsure]

[steampowered]

OK. It does get quite nuanced, and it isn't helped by the fact I am shooting at multiple targets. It's really hard as the Witness Statement is so rambling and it's a nightmare. There is no real particulars of claim to take aim at.

Yes, the Claimant has made it very difficult. It is easier to write a defence where the Claimant has provided a well structured POC and you can simply say which paragraphs you admit and which paragraphs you deny.

 

This does make things more difficult, but it also presents an opportunity. If the judge accepts what the Claimant has submitted as a POC, the judge will have to try to understand what the claim is about in order to work out what approach he should take and what legal principles he should apply in order to reach a decision. You have a golden opportunity to help the judge work this all out and do the thinking for him.

 

I think your defence needs to summarise in a user friendly format what the dispute is about, clearly set out the facts in a neutral manner which anyone can understand, then briefly set out what you understand the Claimant is claiming for, then set out why that claim should be rejected. This is exactly what the judge would do in a written judgment, if one is produced.

 

Does the following make sense:

The first paragraph is fine.

 

The second paragraph lost me completely. I don't have a clue what an RTM company is or why you are talking about it. Before going into this stuff I think you need a couple of paragraphs summarising the factual background to your case, so that the judge can understand what the case is about and put the points you are trying to make in context.

 

Third paragraph is fine but should probably go at the end.

 

Fourth paragraph loses me again. I don't understand the relevance of the 1st July 2014 date. I suspect this would make more sense if you had a few paragraphs at the beginning giving the factual background - including for example a sentence which briefly states what happened on 1 July 2014.

[steampowered]

I think that's much better, well done.

 

It is a great starting point and now I think you need to add more factual detail. You are expected to lay out the facts clearly before diving into why the claim should be denied.

 

I think you also need to be clearer about the specific reasons you have for denying the claim - the judge needs to be able to go through them one at a time; so for example if there are four points there should be four clear bullet points setting this out.

 

- paragraph 1 - What is the 'Right to Manage'? You should not assume the judge knows the law on this and he won't know anything about your property arrangements. You need to provide more details. For example, do you mean to say that the Defendant is a special purpose company established by leaseholders of the block pursuant to the Commonhold and Leasehold Reform Act 2002? If so, who is the director acting on behalf of that company? Paint the full picture.

- paragraph 6 - I would attach a copy of the timeline at the back of your defence. Saves the judge having to find and trawl through the court file, which the county court staff may have lost anyway.

- paragraphs 16 and 17 - this should go right at the start. Otherwise it is very confusing who is what

- paragraph 19 - I don't understand the relevance of this. I'm not sure anyone will be fussed about what people argued at a hearing back in March. Just tell the judge why you dispute the claim.

[steampowered]

That's much better and not at all over the top for a situation like this.

 

It is however still a bit difficult to follow, although that may be inevitable. I think you would benefit from inserting a few sub-headings (such as "The Parties", "The Lease", "The Previous Proceedings" and "The Alleged Failure to Pay Service Charges").

 

With regards to paragraphs 34 and 35 of your counterclaim, you need to make it clear what you are actually claiming for. Any claim which you are making must be properly particularised. If you want to try and claim additional damages on the basis of being unable to remortgage at market rates, then you need to properly particularise that. This would require a proper explanation of how being unable to remortgage has affected you, what steps you have taken in order to try and remortgage and a reasonable estimate of what financial loss you have suffered as a result. If that is not a road you want to go down then you should avoid including statements which hint at (but do not particularise) further claims, and just stick to claiming reimbursement of the £6k amount plus interest.

[steampowered]

I hear you regarding the Counterclaim. That's a tricky business. I've left it vague for a few reasons. Pre-RTM has been dissolved, old-LL Ltd is dissolved as well I think - I'm struggling to find it right now. The funds from pre-RTM's account were transferred to post-RTM's account. I have this in writing. Post-RTM and pre-RTM could be linked with a simple "transfer of assets and liabilities" - and I wouldn't mind rope-a-doping them into doing that, because...

I have to admit that I do not understand who the different parties are and how they fit together. Hopefully this will be made clear to the judge in the "Parties" section of your defence.

 

If you are saying that a claim for the money wrongly requested from your mortgage company should in fact be paid by an entirely different company, then a claim for that money should be the subject of a separate claim against that different company (rather than being made as a counterclaim here). Given the timing, if you think you might have a counterclaim against the Claimant in this case, then you might as well put it forward in your Defence as you might be allowed have the opportunity to raise that counterclaim at a later date.

 

I have a childhood friend with his own IFA company, and he does a lot of mortgages - him, his partners and employees. I would have had to collateralise my old man's house to re-mortgage, due to my health and market conditions etc. My old man clearly wasn't willing to do that with this unresolved matter with potentially unlimited liability. WS' to that effect shouldn't be a problem.

Unless the difference between the rate you are paying now and the rate you could be paying resulted in a very substantial loss of money until the present, I'm not sure it is worth going down that rabbit hole. This sounds a bit confusing to me and may fall foul of the legal rules around being unable to claim damages that are too 'remote'.

 

There isn't really a middle ground here - either you are making a claim (in which case it needs to be particularised) or you aren't making a claim (in which case you might not be able to bring forward that claim against this claimant in future, since you are required to raise all claims in the same set of proceedings and will not be able to raise another claim about the same facts as a later date).

[steampowered]

On that basis, I'll go with the simple version: £6k plus interest. Even if the Judge knocks it back, I can ask him if he will give a reason in his Judgement can't I? I can imagine he may choose not to, but if he does, it will come in handy of I have to chase mortgageicon Company for the £6k - they can't turn round and say it's someone else problem if the Judge says otherwise. Am I right?

Yes, that sounds sensible.

 

Do I need to submit my "evidence" (various letters) with the Defence? Or can they follow with the WS 7 days prior to the hearing?

Your evidence should go along with the WS, not with the defence.

 

I suppose I will have to add "references" to it, stating where the copies are of each letter I am quoting, if it all has to go in tomorrow. And then get it all to the Court, over an hour away.

Evidence and references to evidence goes into the WS. You don't need to put any cross-references in the Defence.

[steampowered]

Hello, if he has failed to comply with an unless order the claim is already seen as struck out. What you should do now is apply for judgment to be entered in your favour, I believe the form is PF 84A but do check with the court.

 

One thing to think about is whether you want to try and ask for costs (which would involve extra effort in perhaps preparing a schedule of costs and attending a further hearing).

[steampowered]

" I believe the form is PF 84A "

 

Isn't that for High Court only SP ?

I'm not 100% sure, Op needs to check with the court.