Managing Agent leasehold Property 4th Court Claim same issue.

[BlurredFX]

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.

 

My bad, I am probably jumping around a bit too much.

 

You're right on the mortgage co - I will simply approach them and say the judgement has been set-aside and ask for my money to be credited back to my account. If they say no, I will ask why. Probably go the Ombudsmen route or something.

 

Then I can just defend claim2013 in the same manner I defended claim2009 and claim2011 once it had been set-aside. i.e simply request he state his case, and once he fails, submit an embarrassed defence.

 

Is that making anymore sense? You've been such a help, even just writing it out focuses my mind.

[andydd]

As far as I know, the mortgage company wants to protect its interest.

 

If it thinks there is a possibilty that the property maybe forfeit then it would normally pay the outstanding amount to stop this happening, at what stage it should do this is unclear, in reality it should only do it as a last resort, after FH has made claim at FTT and got judgment that money is owing for a BREACH OF LEASE (this is different to the normal standard court money claim which may get judgment that money is owing but this is different path to the breach/forfeit one).

 

Some mortgage companies will pay up almost as soon as approached by a FH, others further down the line and only after consulting with the mortgage payer.

 

In your case, there was Judgment that money was owing (by default), BUT there was no FTT judgment that there was breach and as far as I know the FH made no indication that he was going down the S146/Forfeit route, so it could be argued that there was NO realistic prospect of forfeiture and now in any event this claim is now set aside, trouble is mortgage company have now paid the FH, I dont really have much experience of how to get this money back, maybe best to let them keep it but use it as some sort of overpayment/set off against future amounts ?

 

I think getting this sum back maybe difficult, there is lots of leasehold legislation that allows LHs to withold sums, but IF they are paid it maybe tricky to get them returned.

 

So you defended originallaim from the begining on the basis they had no right to it, any present or future claim wether it be by old rtm/new rtm/FH must fail for re-litigation and abuse of process.

[BlurredFX]

So you defended originallaim from the begining on the basis they had no right to it, any present or future claim wether it be by old rtm/new rtm/FH must fail for re-litigation and abuse of process.

 

That sounds good. Even though the dates are different, the basis of the claim is the same. He failed at his first attempt, therefore it makes his second and third attempts re-litigation.

 

So I defend claim2014 on the basis that it is relitigation (of claim2009 and claim2011)? Makes sense. Nice and simple. Can I do an either/or type of defence? I.e. Either it's relitigation, or he has no right to collect. (I am happy with both as a defence)

 

Thanks for your help, even if my thinking isn't always clear, writing it down helps me make sense of it. Talking it through really.

[andydd]

Does matter what the dates are, any claim/case/point that has been before a court CANT be argued again except in special circumstances.

 

There are different ways a claim can end..judgment, discontinued, struck out, consent order but most are barred from being started again, the case I refered to above even makers it quite difficult to re try a discontiuned case (previously it was maybe allowable if claimant asked court permission).

 

Yes either/or is acceptable, its norm,ally written as:-

 

1. Claim is a re-litigation of xx and should be struck out

2. In the alternative it is not payable because blah blah

 

I've had good success with getting a claim struck out/summary judgment, this is done early on in process and you are saying 'there is no need for this to go any further, the claim is so poor it should be struck out now as its re-litigation/abuse of process..blah..' *

 

This puts pressure on other side, but there are risks, as it is done pre-allocation, the small claims costs rules dont apply, so you risk paying either sides costs/solicitor costs if you fail (and fail means the strike out is not granted and the case goes to full trial, which ironically you could win !).

 

Or forget strike out/summary judgement bit and just continue along normall small track

 

* Also worth trying is dont actually do strike out/summary judgment but write to court reminding Judge he has power to strike out on his own initiative using CPR 3.3 > https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part03#3.4 prob wont do anything but worth a try.

[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.

[BlurredFX]

Hi,

 

Thanks for the above replies. I have been digging out some paperwork, old electronic copies of submissions etc. And, also, made a start on the dreaded shoebox where I have stuffed all the unpleasant letters from the past. 2009 is six years ago...

 

2009, 2011, and 2014 are the dates. I will put a copy up of the defence I eventually submitted to 2011 claim (once it had been set-aside) up later.

 

In reading that, I have remembered why the 2011 claim wasn't struck out - the judge couldn't be sure that the LL hadn't joined the action (following the judgement in default). He left it open so I could return with the evidence he needed to see, and pursue my counterclaim - though he said be better going after the mortgage co once I have the claim completely struck out as opposed to simply set-aside. I did go for strike out for abuse of process, to no avail it seems.

 

How can I confirm the LL didn't indicate they would go the S146/Forfeit route? Would there be another case number.

 

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.

 

That's what I said initially! But i have worded it terribly! This is where this thread really helps. As it happens, I included something very like that in 2011 claim - I will post it up later. I am still looking for copies of the orders, but the court should have copies from previously if it really comes to it! The case will end up back in the same court, despite the fact he's filed three claims at three different courts.

 

Got family commitments now - in the form of a coffee with my dear Mum:!:, but I will post up later.

[andydd]

There seems to be a multitude of cases where its not clear whats happened to them, struck out, discontinued, stayed etc.

 

We really need a good list of the cases and the actual outcome(s), otherwise its hard to give advice.

 

LLs very rarely go the S146/Forfeit Route, they just go the money claim route, BUT many/most leases only allow legal costs in s146/Forfeit cases so LLs argue that LVT/FTT/Court money claims are just incidental to forfeit claims and try and get costs that way.

 

The other two recent threads on here about service charges are the same, LLs trying to use that in both cases. Higher court decisions are all over the place about this, see here > http://nearlylegal.co.uk/2015/12/leasehold-disputes-costs/ and http://nearlylegal.co.uk/2014/08/costs-forfeiture/

[BlurredFX]

Right, here we go... please don't forget, in cases 2009 and 2011, they are brought by the pre-RTM company, who I maintain have no legitimate authority to collect. That is the heart of my defence. The company was set up by residents to manage things because the LL couldn't be bothered.

 

Claim2009 - he started the claim (service charges 2006-2009), I asked for documents detailing his authority, he failed, hearing held, he got thrashed by the DJ (it was a DJ) and told to go away and come back with his documents. He failed, and told the Court I had paid the claim and withdrew.

 

Claim2011 - he became aware I had been rushed into hospital, nearly dead. He Launched action (service charges 2006-2011), I failed to defend it, he obtained a judgement in default. On the back of this, he obtained payment from mortgage co. Once I was somewhat recovered, I applied for the claim to be set aside, and it was. A hearing was scheduled, which he eventually paid the fee for (after being threatened with his claim being struck out). The hearing was held. He failed to turn up. I took a grilling from the judge. The judge couldn't be sure that the LL hadn't joined the action at the last minute and gone for possession (following the judgement in default). He left it open so I could return with the evidence he needed to see, and pursue my counterclaim. This is how is remains - both parties at liberty to restore.

 

Claim2014 - the RTM company came into effect July 2014, and he launched a new claim in the name of the RTM company in August 2014 (once again he saw me getting ambulanced away) - this has been stayed ever since on the grounds of my hospitalisation. Stay expires early Jan 2016. I am paid up from the RTM date, I paid on the first day it came into effect.

 

Going through my records, the following is my best guess at this stage as to what I sent out in dealing with the 2011 claim:

 

Question 10

Please see attached:

Draft Order

Statement of Case

Claim form for original case claim2009 dated

My CPR18 Request For Information

My Defence to claim claim2009 dated 16th September 2009

An order that the Claimant pay his fee, dated 13th November 2009

Copy of Notice of Allocation to SCT, dated 15th December 2009, which also requested the Claimant produce certain documents.

General Form of Judgement or Order dated 22nd February 2010, for the claim claim2009 to be stayed for settlement, till just after the Easter weekend, 6th April 2010.

Letter from the claimant saying he had given me opportunity to pay, which bears no relation to what actually happened.

Notice of Allocation to SCT (Hearing), dated 15th April 2010, showing that the original case claim2009 be restored for hearing. This hearing never took place as the Claimant withdrew his case, as confirmed verbally by myself with SF (sic) on the 27th July 2010

Claim form for second case claim2011 brought on same material facts (no date visible)

Judgement for Claimant (in default) for case claim2011 dated 25th August 2011

Two page letter from my GP (Dr X) describing in detail my severe ill health in May 2011, and subsequent admission to hospital, dated 31st January 2012

Two page letter from my medical consultant Prof. N, dated 21 February 2012, further detailing my ill health during May 2011 onwards

A letter from my GP (Dr X) dated 29th August 2012, confirming my continued ill health

A Letter from Whitfield Solicitors, who represented the Landlord (and NOT the Claimaint), incorrectly addressed.

 

 

Statement of Case -

 

a) That claim claim2011be struck out, as it is an abuse of process (CPR 38.7)

The claim number claim2011 is materially the same claim2009 . It is brought on the same material facts, copies of both applications attached.

The claimant launched case claim2009 in 2009, which I defended. I requested he supply evidence to back up his claim (CPR 18, Request for Information) but he was either unable to or unwilling to supply such. This left me with insufficient particulars to plead, and I was forced to submit an embarrassed defence. After a series of events, detailed in attached witness statement, the claimant withdrew his case.

 

b) That claim claim2011 be set aside, as the defendant was too ill to deal with this matter at the time

At this time he was unable to defend the case, or make an application for the case to be set-aside, due to firstly not receiving the original documentation, but more importantly the defendant was completely unwell at the time, and remains very ill.

 

WITNESS STATEMENT

 

The claim number claim2011 is materially the same claim2009 . It is brought on the same material facts, copies of both applications attached.

 

The claimant launched case claim2009 in 2009, which I defended. I requested he supply evidence to back up his claim (CPR 18, Request for Information) but he was either unable to or unwilling to supply such. This left me with insufficient particulars to plead, and I was forced to submit an embarrassed defenceA hearing was held on the 15th Feb 2010, prior to which the court instructed that the claimant produce certain documents.

 

Despite being instructed by the court (copy enclosed), the claimant failed to produce any evidence to support his claim. He was also unable to provide any valid evidence at the hearing on 15th February 2010. He did "purport" (the Judge’s word) to have sent copies of certain document to myself and the court, but neither the court nor I received any actual documents. The claimant also failed to produce anything at the hearing. The court simply received a covering letter and I received nothing. This was commented upon by the Judge at the time, as well as his indication that should he be asked to determine costs at that point, they should be paid by the claimant. The claimant had had his opportunity to produce the evidence upon which he sought to rely, and failed. The Judge also commented that even if eventually the claimant could substantiate his case, the court would not order possession as the claimant was not entitled to such as he was not representing the Landlord.

 

The case was adjourned, pending informal resolution of the dispute. Despite my efforts, and attempts for a bi-partisan resolution which included that we should form a formal Right to Manage Company on 29th March 2010, I received (hand delivered) a proposed payment arrangement (copy enclosed), which in no way reflected my comments or the agreements made at that meeting that had been held.

 

Despite his lack of evidence, and attempts to frustrate my efforts and paint a different picture to that which had actually happened, the claimant applied to restore his case claim2009 (two days after his hand delivered proposed repayment schedule). Please note that 1st April was the day before Easter, and 6th April was the day after. His application to restore was granted by the court on the 15th April 2010, but the claimant subsequently withdrew his case. I spoke to SF on the 27th July 2010 at Small Town County Court to confirm this.

 

This was the last I had heard of the matter until I received a Judgement in Default for claim2011 in Aug 2011 (copy enclosed).

 

At the end of 2010 / beginning of 2011, my health started to take a serious turn for the worse, and I was signed off work. As time progressed, my health took a major turn for the worse. The enclosed letters from Dr P (my GP) and Prof. N provide a more detailed and comprehensive description of the issues I faced. From these it is clear that at the time I was unable to firstly defend the claim, and consequently unable to make the appropriate applications to the court due to serious illness.

 

I remain in the "support group" - this means that for DWP purposes, I was and remain completely unfit for any type of work, and therefore not required to seek work or undertake work related activity (under the new rules implemented by the Coallition Goverment, this is a very small percentage). Throughout this time my health was steadily getting worse. Please find enclosed a copy of the Court’s Decision Notice dated 12th May 2012, reference number abc123

 

Prior to being admitted to hospital in July 2011 I was completely unable to eat or drink, and had been this way for some time. From a healthy 13 stone, I was reduced to a 7 stone skeleton. I remained in Hospital almost full time from July 2011 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 still fed naso-jejunally which means I still have to be fed up my nose direct into my guts through the night, along with other tubes, to drain the internal sepsis.

 

Since my latest discharge (May 2012) from hospital, I have had to regain control, of amongst other things, overdue payments from the DWP, many overdue bills payable to the Utility companies, and today represents the first opportunity to deal with this matter. There is no fixed time frame to be re-admitted, though it could happen, literally, at any time. I remain on a limited calorie intake. This restricts my physical and cognitive abilities to progress things at a faster pace. My condition is currently managed, but certainly far from resolved. I still attend regular out-patient clinics.

 

In light of the above, I respectfully request that claim claim2011 be struck out. If the claimant elects to restore claim2009 , I would be able to continue to defend his claim based on (but not exclusively):

 

a) The 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) The complete lack of any properly executed demands, Service charge demands did not conform to provisions of lease and do not conform to relevant statute laws ****i.e s47/s48 **** HOW DO I PHRASE THIS

 

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

 

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

 

e) there is no provision within the lease for his taking possession.

Edited December 18, 2015 by BlurredFX
removing a name

[BlurredFX]

btw Andydd - most of that was written by you, if I recall!! Or you were instrumental in it anyway!

Edited December 18, 2015 by BlurredFX
only half a post!

[BlurredFX]

There seems to be a multitude of cases where its not clear whats happened to them, struck out, discontinued, stayed etc.

 

We really need a good list of the cases and the actual outcome(s), otherwise its hard to give advice.

 

LLs very rarely go the S146/Forfeit Route, they just go the money claim route, BUT many/most leases only allow legal costs in s146/Forfeit cases so LLs argue that LVT/FTT/Court money claims are just incidental to forfeit claims and try and get costs that way.

 

The other two recent threads on here about service charges are the same, LLs trying to use that in both cases. Higher court decisions are all over the place about this, see here > http://nearlylegal.co.uk/2015/12/leasehold-disputes-costs/ and http://nearlylegal.co.uk/2014/08/costs-forfeiture/

 

I've read those cases as having pretty much opposite outcomes. Would that be correct? If I was to lose, I would hope to be able to argue that all this litigation has been futile and preventable - had he complied with the order made to produce his docs during claim2009, the matter would have been resolved years ago and all other costs should be bourne by the claimant. Worth a try. I am not planning on losing unless you can spot critical flaws?

 

My LL is a large company, I would suspect likely to go for this if it came to it - but my point/defence is the same - the Claimant didn't have the backing or consent of the LL, and any LL is going to be reluctant (IMO) to back them as the building is falling into disrepair (eg external redec is about 4 years overdue according to lease, hence double glazing is falling out) and only now are people trying to sort it - but these issues just foggy the matter.

 

My biggest fear is that all this messing / abuse of process / vexatious litigations by him confuses things (or I get side tracked by less important issues) and he wins because people assume he is correct, when in fact he is an incompetent fool.

 

The salient points are:

Claim2009 - he started the claim (service charges 2006-2009), I asked for documents detailing his authority, he failed, hearing held, he got thrashed by the DJ (it was a DJ) and told to go away and come back with his documents. He failed, and told the Court I had paid the claim and withdrew.

 

Claim2011 - he became aware I had been rushed into hospital, nearly dead. He Launched action (service charges 2006-2011), I failed to defend it, he obtained a judgement in default. On the back of this, he obtained payment from mortgageicon co. Once I was somewhat recovered, I applied for the claim to be set asideicon, and it was. A hearing was scheduled, which he eventually paid the fee for (after being threatened with his claim being struck out). The hearing was held. He failed to turn up. I took a grilling from the judge. The judge couldn't be sure that the LL hadn't joined the action at the last minute and gone for possession (following the judgement in default). He left it open so I could return with the evidence he needed to see, and pursue my counterclaim. This is how is remains - both parties at liberty to restore.

 

Claim2014 - the RTM company came into effect July 2014, and he launched a new claim in the name of the RTM company in August 2014 (once again he saw me getting ambulanced away) - this has been stayed ever since on the grounds of my hospitalisation. Stay expires early Jan 2016. I am paid up from the RTM date, I paid on the first day it came into effect.

 

And how do I respond to Claim2014, in light of the other claims. The previous claims are important as they just show how irresponsible he has been.

 

:-DAnyway, enjoy your Christmas everyone! A massive thanks for your help, I would be literally homeless and broke without it already! Well done.

 

Blurred

[andydd]

Yes the last two decisions about costs one at high court other at upper tribunal directly contradict each other, most think the high court marina decision was completely wrong.

 

I think your best bet maybe to make some sort of strike out application to court asking to strike out whole claims or bit of claims, at least this will tidy up stuff, those claims or bits of claims can then be considered dead and very difficult ro resurect/re-litigate and you can then only fight actual real arrears, if there are any.

[BlurredFX]

I think your best bet maybe to make some sort of strike out application to court asking to strike out whole claims or bit of claims, at least this will tidy up stuff, those claims or bits of claims can then be considered dead and very difficult ro resurect/re-litigate and you can then only fight actual real arrears, if there are any.

 

I agree. I have been going through paperwork, and I have found most documents I could be asked for. I still have some digging to do.

 

So, I figure I am going to be filling an N244 asking for one of a few things to happen. My first one is for a strike out of claim2014, or at least be stayed, as the claimant still hasn't proved his case from Claim2011. The last order from Claim2011 is that it is adjourned generally, with both parties are at liberty to restore. He should continue to pursure claim2011 before starting fresh litigation.

 

I will get drafting this.

 

The second option is that claim2009, claim2011, and claim2014 all be lumped together and considered as one case.

 

The third is that I defend the whole claim on the basis he has no authority to levy such charges.

 

I have asked LL to confirm they have never taken any action against me, but they have not come back. They were responding to emails this morning, but had nothing back since I tried to clarify. The person we were speaking to was talking about escalating it to their legal team.

 

I have spoken to Mortgage Company, and they are (or say they are) going to send me copies of letters and all correspondence about that issue. That may add weight to my case, or show him as a liar. We'll see.

 

Question: Once he won his money claim, what is the procedure for going for possession? I would like to be able to show that he didn't pursue this route, as that is what the Judge was asking last time when he adjourned claim2011. Or if the claimant did pursue it he was lying about his entitlement.

 

I suppose this will be more relevant as things progress (or for the third option outlined above). I have had an up to date statement from the LL showing Ground Rent arrears right back to 2006 when I purchased the lease. I also have a statement from the mortgage co showing a debit for "Ground Rent and Service Charges" at approx £6k relating to claim2011. There is also a letter from 2012 clearly stating the claimant was not a client of previous LL not the current LL, bills by the claimant are unenforceable, informal relationship can be terminated easily etc.

 

So, looking at my first points, do we consider this an appropriate route?

 

FX

[BlurredFX]

As discussed earlier in the thread, I have been in contact with mortgage company and also the landlord. I think I have got the evidence for claim2011. Claim2014 needs responding to by Monday 11th. I am hoping to have it stayed/struck out. That's where I need to most help right now.

 

RELATING TO CLAIM2011 - an issue for slightly down the line.

 

The mortgage company has provided me with copies of the correspondence from Claimant following Judgement in Default, and a letter from the Claimant (Sept 11) states "As managing agents of Blurreds Flat, we write to advise your client, Blurred, is in severe arrears and therefore in breach of his lease" They go on to ask for the money otherwise s146 route will be pursued. They are NOT managing agents, but that's my point. There is nothing from the LL and it appears my mortgage co paid up on the simple threat of s146. There is absolutely no evidence the LL joined the action.

 

There is letters from mortgage co to them, then there is a letter from the claimant (Oct 2011) saying "please find below the details of the bank account to make payment of the outstanding service charge and GROUND RENT for the above property"

 

At this point, my mortgage co paid up.

 

I now have had a statement from the LL that shows all GROUND RENT as unpaid right back to 2006! As of 30th Dec 2015. i.e. They've claimed to be managing agents, and made representations to my mortgage co for service charges AND ground rent, but not paid the GR to LL.

 

So it appears I am right, and now I think I have the evidence to back up my defence - the evidence that the judge in claim2011 wanted to see when I applied for it to be struck out. (claim2011 has been set aside, and adjourned with either side at liberty to restore). The judge wouldn't strike it out as he couldn't be sure the LL hadn't joined the action post-judgement.

 

RESPONDING TO CLAIM2014 - Most pressing issue, needs responding to by Monday

 

I think your best bet maybe to make some sort of strike out application to court asking to strike out whole claims or bit of claims, at least this will tidy up stuff, those claims or bits of claims can then be considered dead and very difficult ro resurect/re-litigate and you can then only fight actual real arrears, if there are any.

 

Of the highest priority, I need to respond to claim2014. How do I even do that, I've forgotten! I am asking for Orders to be made as well, so is that an N244 as well? Do I include a Witness Statement? If I recall, that's the best way of putting everything in context. Don't I have a piece of paper entitled "Defence" - or is that later once I have asked for the orders.

I want claim2014 struck out as the claim is identical to claim2009 except it is brought by the post-RTM company which only took over management in Jul 2014.

 

In the alternative, I want claim2014 struck out at the Claimant company is the post-RTM Ltd chasing pre-RTM Ltd debts. (I am up to date with post-RTM payments).

 

In the alternative, I would like claim2014 to be stayed in order that I can restore claim2011 and submit my additional evidence and continue to defend the claim. If claim2011 is shown to be without merit, claim2014 will be equally so.

 

In the alternative, the claim, as detailed, provides insufficient particulars to please. Under CPR xx.yy (i can't remember, I will find it) please order the claimant to produce all documents upon which he intents to rely **the exact words were stolen from a template used in the days of credit card companies losing all their paperwork, but it worked in claim2009**

 

In the alternative, the matter be referred to LVT as the claimant is in breach of his obligations under the lease. Section a)b states that the building should be redecorated internally and externally every 4 years, which hasn't been done. The claimants demands are incorrect, (I'll dig out the rest from claim2011) The claimant has been claiming to be arranging for double glazing since 2012 (I've got letters) and as of 1 Jan 2016, nothing has happened, despite there being a lot of meetings (there is a whole other tale here...), and the general neglect of the building

 

Am I barking up the right tree here?

 

Blurred:)

[andydd]

2011 Claim.

 

Get this restored and ask to strike out.

 

ONLY a Landlord can go down forfeiture route (unless Man Co is party to original lease), a Man. Co. can chase service charges but not forfeiture but as you say the RTM wasnt entitled to at the time anyway, and Man Co. cant chase for ground rent as that goes solely to landlord. Not sure what step after that, if youve proved wasnt actually owing anyway, a court (or FTT) might ask them to refund or maybe credit account, I dont know what mortgage company would do/say.

 

The other stuff your comments seem about right EXCEPT bit about going to LVT(FTT) about FHs breach, they dont have juridstiction about this, all you can do is start court claim/counterclaim/set off for damages, I did this but didnt get much as its hard to prove actual losses.

 

An FTT can rule that youve breached lease but alas not the other way round !

[BlurredFX]

Nice one,

 

I will change it to FTT. I presume that is just the replacement type of thing for LVT?

 

RTM company are the claimant in claim2014 (backdating the claim to service charges post claim2011). The claimant in claim2011 is the pre-RTM company that was basically set up by the neighbours to run things due to an absent LL, hence no LL consent! A new LL bought the FH in 2012.

 

In terms of getting the money back, I would have to pursue the mortgage company according to the judges musings after the last hearing. He said he thought I was capable of that! I will ask the mortgage company, hoping they pay up, then go down the Financial Ombudsmen route or something. I havn't thought about it properly. I figure my contract is with the mortgage company - and they have applied fees to my account wrongly. It isn't my fault if they are a victim of fraud/misrepresentation/misunderstanding. The judge said they had a duty of care to me - which sounds sensible.

 

I will get drafting. Cheers old boy - just someone giving me the nod that it makes some kind of sense helps - the judge (even if it is the same one) will want a full explanation again, so I need to be fully in command of the facts.

 

Can I ask someone for bit of hand holding regarding procedure - what do I do? I think I need to:

 

1) Make the draft orders a bit more formal.

 

2) Do at witness statement

 

3) Include any relevant evidence (probably not at this point actually)

 

4) Include an N244? With appropriate fee remission documents?

[andydd]

Yes LVT is now FTT, mostly the same.

 

An RTM has rights over most things (assuming it was properally put together) but NOT GR or Forfeiture, but your argument was it didnt have right to even chase service charges.

 

Ive no idea of how mortgage company will react, they all act differently, another case on here, the mortgage company refused to pay up at the early stage and said they will only pay after judgement and IF forfeiture looks a real possibility.

 

Dont know what order docs have to be in, what is the case where they got default judgement ?

[BlurredFX]

what is the case where they got default judgement ?

 

claim2011 is where they got default judgement. It was set aside, there was a hearing that the claimant paid for but didn't attend where I made my case to the judge. He said come back with evidence LL didn't join action at last minute, and I will consider it again. I now have that evidence, and want it restoring. The judge would have struck his claim out, but didn't want to until he could be sure LL hadn't joined action, because if LL had joined action, he would be overruling another judge and he can't do that. If the money hadn't already been paid, I would have won.

 

An RTM has rights over most things (assuming it was properally put together)

 

Don't start me... coz I don't think it is, but that's for another day.

 

but your argument was it didnt have right to even chase service charges.

 

Correct - all he needs is a letter from LL but he doesn't have that. The guy in charge of the management company bought it - and assumed he was the Managing Agent appointed by our LL, but has now found he isn't and the company (pre-RTM) was an informal arrangement by the residents to do communal tasks such as the garden because the LL was absent. That's the root of it all, if you can still take any more info in?!?! in 2012 a new LL get involved, and in 2014 the RTM company was formed and started action against me (claim2014) - which I am now responding to.

 

Dont know what order docs have to be in,

The order doesn't bother me. What documents do I need in the bundle? I will have a look round in a bit, and if I am still drawing a blank, I will PM a few people - it's absolutely routine, but my brain is spinning again lol

 

Nice one mate, I've probably made your head spin again.

 

The important thing is I work out what documents i need to include to respond to the claim in the first instance.

 

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[andydd]

Its easiest if you do all the cases seperately and chop it into small chunks, added stuff as you go along, as it stands its hard to get head around it all.

 

Start with 2011 case, there was judgement, you asked to set aside, this set aside was stayed, so you just need to apply to un-stay and put together the evidence to firstly show why it should you should be allowed to set aside (illness) unless this bit is already done and then put evidence togther, no set rules on formatted for small claims, but CPR and Practise Directions and other templates should show you what is needed and how to put it all togther. I assum,e it will then continue as if the actual case is being heartd so you will need to provide defence, etc in the standard way.

 

I cant really say what docs you need, etc... Enough to prove your case to someone who knows nothing about it and persuede him, dont assume that its clear that you are in the right.

[BlurredFX]

Its easiest if you do all the cases seperately and chop it into small chunks, added stuff as you go along, as it stands its hard to get head around it all.

 

Start with 2011 case, there was judgement, you asked to set aside, this set aside was stayed, so you just need to apply to un-stay and put together the evidence to firstly show why it should you should be allowed to set aside (illness) unless this bit is already done and then put evidence togther, no set rules on formatted for small claims, but CPR and Practise Directions and other templates should show you what is needed and how to put it all togther. I assum,e it will then continue as if the actual case is being heartd so you will need to provide defence, etc in the standard way.

 

I cant really say what docs you need, etc... Enough to prove your case to someone who knows nothing about it and persuede him, dont assume that its clear that you are in the right.

 

Claim2014 has to be dealt with first - the deadline is this week. I want it stayed or struck out - its materially the same as claim2009. My first draft orders ask for this.

 

Claim2011 needs to be restored so I can show my latest evidence to the Judge. Hopefully this can be done while claim2014 is stayed or (unlikely) struck out. It was set aside, and removed from the register. THEN there was a hearing he failed to attend. I took a grillibgoff the judge but he couldn't strike out due to uncertainty is LL has joined in.

 

I will have a look round and post back here later.

[BlurredFX]

Hi Guys,

 

Can someone help me with the procedural side of things. I need the forms in by 4pm Monday. The legal aspect is long and complicated and beyond the scope of this query (I think). I think it's quite simple.

 

Andydd has been helping me come up with my legal arguments etc., and I am I've been in front of the judge a few times, but it's been a while and I have forgotten what comes before the hearing.

 

A claim was made against me Aug 2014. Since the claim was served, it has been stayed due to my hospitalisation. I had to complete n244's asking for a number of three month stays, all of which were granted. I am now in a position to fight the claim.

 

I want this case struck out or stayed as it is virtually the same (different dates) as the previous claim against me that is currently adjourned with both parties at liberty to restore.

 

If that doesn't happen, I will defend it is as my defence is the exactly the same. What I don't want to do is re-prepare my whole defence again right now, if I can help it. What I REALLY don't want to do is jeopardise my defence by not responding correctly now. I have previously (for the old claim) submitted CPR31.14 requests etc, and quite a bundle of documents has been submitted. I have some more to add to it, hence I want it restored.

 

I think what I need to do is as follows:

 

1) Fill in the Acknowledgement of Service N9 for the current claim saying I intend to defend all of this claim, and ask for 28 days.

 

2) Request the following orders by filling in an N244 (and EX160a):

 

3) Draft an order requesting the claim be struck out as the Claimant Company isn't quite who they say they are.

 

4) Draft an order requesting, in the alternative, that this claim be stayed, and the previous claim restored in order that I can continue my defence of that claim.

 

5) A witness statement and some documents supporting my application.

 

6) Bundle the above up and send the claimant and the court.

 

If I do the above, and the judge refuses all my requests and orders that the case go ahead, will I still be allowed to make additional CPR requests and what not (essentially repeat my previous defence), at a later date? Or do I have to throw everything at it straight away.

 

Blurred:)

[AndyOrch]

Have you yet to submit a defence ? If you have submitted one dont do anything ...wait until (if ) they decide to restore...let it stay.

 

Andy

[BlurredFX]

Have you yet to submit a defence ? If you have submitted one dont do anything ...wait until (if ) they decide to restore...let it stay.

 

Andy

 

Andy, not sure if you are aware, but I have two identical (except dates) claims ongoing - and I paid out on the first (mortgage company did), but that's been set aside, and a hearing held. He failed to turn up and has no evidence to back up his case. After that, he launched this second claim.

 

No, I have not submitted a defence to the latest case (the second claim) - that's the one I need to respond to before Monday. I just want to present the above evidence of abuse of process and get it struck out. I can defend from square one if the Court so desires, but that would be silly as existing case covers it.

 

I will restore the first one after this second one is stayed or struck out, and get that struck out as well, then start working on getting my money back.

 

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[DonkeyB]

I think there’s a clear case of abuse of process here. You can’t have two cases running at once on the same facts, even if the claimants are different.

[BlurredFX]

What do we think?

 

DEFENCE

 

The claim should be struck out as an abuse of process. This claim is identical to claim2011, except for later dates and the claimant being nominally different. The claimant company in both cases is effectively the same - same Directors, same management sub-contractor, and funds were transferred pre-RTM Company to post-RTM Company once the RTM process was complete. I am up to date with the RTM company, all amounts have been paid since July 2014.

 

SKELETON ARGUMENT ???

 

What I am putting here? Some legal references?

 

WITNESS STATEMENT

 

This claim is identical to claim2011. The claimant began claim2011 in 2011, alleging breach of a lease, that he is not party to. He gained Judgement in Default as I was too ill at the time to deal with the matter. Once I was sufficiently recovered in early 2013, I applied to have the judgement set-aside due to my very well documented acute ill health. The judgement was set aside and a hearing held on the 29/05/2013. The claimant failed to attend. Having considered the evidence, the court ordered that the claim be "adjourned generally with liberty to restore on the application of either party.".

 

I have submitted a wealth of documents and made various requests of the Claimant in that case (claim2011), to which he has yet to respond. HE has not submitted any evidence to back up his claim and he did not attend the hearing of 29/05/14 even though he paid the fee.

 

Rather than abusing the court process and pursuing the defendant with multiple (3 so far) identical claims, the claimant is at liberty to restore claim2011 and should do so.

 

This claim is in the name of post-RTM Company Limited Ltd. That company took over management of my development, having seemingly completed the RTM process on 1st July 2014. I am fully paid up from that date. The claimant in the previous case was pre-RTM Company. These two companies are effectively the same - the old company transferred all its money to the new company around about the time the Right To Manage came into effect. The directors and management companies are the same. I have enclosed documents to provide evidence of such

 

It should also be noted that the claimant had, prior to starting claim2011, started a claim in the Southport County Court - claim2009. The particulars of claim are identical, but he withdrew that claim, telling the court I had paid it - when I had not paid a penny. claim2011 includes dates that the claimant also claimed for in claim2009, but withdrew his action. He is a persistent abuser of the court process.

 

The claimant is clearly abusing the court process to harass me, and his claim should be struck out as an abuse of process. claim2011 can be easily restored. I would be delighted if the claimant did so, as I believe I now have all the evidence required to defend that case fully.

[andydd]

Not sure about this.

 

Whether the company has same directors, etc is irrelevant, this could be perfectly legit, my FH runs a management company that is in reality him under a different guise BUT its legitimate.

 

You need to show that the Man Co. had no right to collect charges.

 

I havnt created a skeleton argument, Ive just put in applications for strike out and put down my evidence.

 

Heres my example...............

 

IN THE SOUTHEND COUNTY COURT

CLAIM NO: 1IR82718

BETWEEN:

 

 

FORCELUX LTD

Claimant

and

 

ANDREW

Defendant

 

 

APPLICATION FOR SUMMARY JUDGMENT

 

 

1. Re-litigation and Abuse of Process

a) I request Summary Judgement pursuant to CPR 24.2 and/or I request the Claimants claim is struck out pursuant to CPR 3.4(2) (b) and/or © on the grounds that there has been a failure to comply with CPR 38.7 and/or a failure to observe the Court Orders dated 7th April 2011 and 10th May 2011 and therefore it is an abuse of the court's procedure.

 

b) The claim is an exact duplicate of a claim that has already been litigated before Southend County Court where the Claimant was unsuccessful.

 

c) In Claim No: OBQ12838 - Mr Andrew v Forcelux Ltd., the Claimant issued a (counter) claim in the sum of £2007.10, for identical alleged arrears of Service Charges as the current claim (1IR82718), the (counter) claim was struck out by District Judge Ashworth on 7th April 2011.

 

d) The Claimant then issued an application requesting that the strike out of 7th April 2011 be set-aside, this application was also struck out by District Judge Molineaux on 10th May 2011 for failure to comply with CPR 3.9.

 

e) District Judge Molineaux’s Order of 10th May 2011 was not appealed and still remains an Order of the Court, it is an abuse of process to simply wait a period of months and re-issue the same claim again, the attempt by the Claimant to have this case heard by the Court is in nothing more than an attempt at lodging an out of time appeal against the original decision(s) of the Court.

 

f) The circumstances in the current claim have not changed since the original claim nor has the Claimant asserted there are any new or additional facts which could possibly warrant the claim being bought before the Court again.

 

g) The Claimant has not sought the Court’s permission to re-litigate as required by CPR 38.7, in this case the facts are identical to the original claim; I believe that the original claim was in fact effectively ‘discontinued’ when the Claimant breached a Court direction by non-payment of Court fees, despite being given ample notices and opportunities to do so. The Claimant had full legal representation and would have been well aware that non-payment of fees would have resulted in the Claim being struck out. It cannot be fair and proper that a claimant is able to avoid the rules and sanctions regarding discontinued claims in this manner. I refer to the “White Book – Civil Procedure Volume 1” (Sweet & Maxwell) and in particular the effect of rule 38.7 - “As a matter of common sense, where a claimant who has brought and then abandoned a claim ought not as a general rule to be allowed to start another claim arising out of the same facts.”

 

h) Since the claim is for the same amount as before and the earlier proceedings were dealt with by a Court then the doctrine of estoppal known as res judicata applies and this action should be deemed an abuse of Court process as that described by Sir James Wigram V.-C. in Henderson v Henderson (1843) 3 Hare 100 at 114: "In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."

 

2. Invalid Demands for Service Charges

 

a) Alternatively/in addition to point 1, I request Summary Judgement pursuant to CPR 24.2 and/or I request the Claimants claim is struck out pursuant to CPR 3.4(2) (a) on the grounds that the Claimant has no realistic prospect of success.

 

b) The Service Charge demands sent to me by the Claimant were either not accompanied by the ‘Summary of Rights – Administration Charges’ notice as required by S21B of The Landlord & Tenant Act 1985 or when accompanied by said ‘Summary’, the ‘Summary’ did not follow the form and content as laid down by The Service Charges (Summary of Rights and Obligations, and Transitional Provision) (England) Regulations 2007.

I am therefore using my right under Section 21B (3) of The Landlord & Tenant Act 1985 to withhold payment, the alleged Service Charge arrears are not payable, therefore the claim must fail.

 

3. ‘Administration Fee’ - £25 – 30/07/08

 

The ‘Notice before Action’ fee of £25 is not recoverable for one or more of the following reasons.

 

a) There is no provision within the lease that allows the freeholder to recover such Administration Charges.

 

b) Under Section 21B (4) of The Landlord & Tenant Act 1985, where a tenant withholds a Service Charge under this section (as I am doing), any provisions of the lease relating to non-payment or late payment of Service Charges do not have effect in relation to the period for which he so withholds it.

 

c) Under Section 158 (Schedule 11) 4 (1) of The Commonhold & Leasehold Reform Act 2002, demands for the payment of Administration Charges must be accompanied by a ‘Administration Charges - Summary of Rights’ notice, no such ‘Summary’ accompanied any demand for the payment of this Administration Charge.

 

d) I am therefore using my right under Section 158 (Schedule 11) 4 (4) of The Commonhold & Leasehold Reform Act 2002 to withhold payment, the Administration Charge is not payable, therefore this part of the claim must also fail

 

4. Costs

 

a) The Claimant has commenced proceedings in relation to alleged arrears of Service Charges.

 

b) The proceedings constitute re-litigation and are an abuse of process. The original (counter) claim proceedings were defended and the (counter) claim was struck out, effectively twice.

 

c) I have made the Claimant well aware that his demands for payment of Service Charges are not valid and that I am exercising my right under S 21B (3) of The Landlord & Tenant Act 1985 to withhold payment, despite being made aware of this he has proceeded with legal action.

 

d) Taking into account b) and c) and the fact that this current claim is the Claimant’s attempted ‘third bite at the cherry’, I request that under CPR27.14 (2) (g) I be allowed to recover my modest costs at the Litigant in Person rate of £18 per hour.

 

e) The nature of the case being one of re-litigation required that I spend time in locating and examining the documents and other papers which related to the earlier proceedings.

 

f) I was obliged to spend time in considering and understanding numerous strands of law including landlord & tenant and re-litigation law, researching previous precedents and practice and procedure in the county court which was achieved through internet, library research and purchasing books on the subjects.

 

g) I was obliged to spend time drawing my defence and application to defend and the Summary Judgement/strike out application in a way which complied with the relevant rules and practice directions of the Civil Procedure Rules.

 

 

End result being the FHs claim was struck out and I got costs, about £280 or something I believe