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Marstons. Capital Contribution Order


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Well, I'm speechless and I don't know whether to laugh or to cry.  I graduated with a law degree (the first of two) in 1979, and if anybody had told me that 40 years later an unsuccessful legally aided defendant could end up with a legal bill of over £100k, I'd have called them a barefaced f'ing liar.

 

So Howler has £112k of legal aid spent on his defence, and ends up liable for all of it, simply because his disabled and cancer surviving wife (not him) owns the flat they live in.  And the value of that flat is only £150k!  Well, well.  How times change.  I was aware legal aid had been cut back drastically, but I didn't realise it was like this.

 

I don't know what you can do other than write as suggested by London1971.  If you don't tell your wife now, I'd suggest you need to start preparing to do so, because you are likely to be asked to demonstrate how unwell she is.  I can fully understand you don't want to burden her with this, but it might be better if she knew sooner rather than later.  When (or if) you do tell her, she may be really annoyed you hadn't told her earlier.  Only you can judge that.

 

I think Andyorch may be suggesting challenging the £112k figure as to how it's made up.  Might be worth a try, although I think you suggested it may have been connected with money laundering charges, so the costs may have been particularly high.

 

Just one thing.  You say the flat is only in your wife's name, and she owns it outright.  Are you absolutely sure there's no mortgage or any other monies outstanding on it?  Or any other legal liabilities you or she have that could reduce your disposable capital?  I'm just thinking aloud as I don't understand how this works.

 

EDIT:  The amount of money they are demanding is so large that it's ridiculous they are even wasting time and money trying to recover it from you.  Anybody sensible looking at your "real" disposable capital (how could you dispose of the flat?) would see immediately that it was unrealistic!  Bonkers...

Edited by Manxman in exile
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Yup @Manxman in exile there is a 50% chance they will ask for proof, but if they don't he doesn't need to tell his wife. If they do, well we can take it from there.

 

Howler's wife's situation should make this toxic to the LAA, I'm assuming currently they have no idea that they are bullying an extremely sick elderly woman, and when they realise they will drop it like a hot potato.

 

 

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My wife paid off the mortgage and debts when we moved here , we have no liabilities .

 

The other guys were charged with money laundering i was not, mine was a lesser charge .

for me it was a debt collection job that went wrong....

and i got charged with conspiracy to kidnap though there was no kidnap

the bloke ran away into the arms of the local plod,

who then after some digging decided to go after the big guys for laundering charges.

 

Mine was a small part played on the fringes.

I was there to back up the bailiff in carrying out his employment. 

 

I tried to get my barrister to appeal but was told there was nothing to appeal on.

i got a polite go away and think you are lucky cos they all got time.

 

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OK.  I think your best bet is to do something along the lines of the letter suggested by London1971.  As he says, do everything by proper mail first class and not email, and ask them to acknowledge that they've received it.  If you can't do recorded at least post it at a post office where you can (or you could) ask for a free certificate showing you posted it.  Keep the certificate and a copy of the letter in a safe place. 

 

Hope for you and your wife that things turn out for the best.  Good luck...

 

 

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:rockon:

10/10 HOWLER GOOD WORK

keep your chin up

 

we'll get you sorted as best we can.

 

dx

 

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please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Got this today .Your comments please much appreciated.

 

 

 

 

 

I note your comments stated in regards to your current circumstances and wife’s health conditions. However, I must advise that, whilst we appreciate the difficulty faced by the current circumstances, you remain liable for the amount of £10XXXXX

 

When calculating your Capital Contribution Order we assessed using the Final Defence Costs the Legal Aid Agency paid to your solicitor and barrister and the disposable capital both you and your wife hold. As previously stated in the email sent by ourselves on 11th June 2020, if you disagree with the figures used to calculate your disposable capital or current liability, please submit evidence so that we may conduct a review. If evidence cannot be provided for a review, I would advise that you contact our collection and enforcement agents, Marston Holdings Ltd (Marstons) in order to discuss payment.

 

We understand your concerns regarding external contact during the pandemic and the risk to your family’s safety. Please be advised that during this situation, visits from Marstons are highly unlikely. However, I must advise you that as the liability has not been paid, in order to secure the debt owed it is likely that Marstons will apply for a charge to be secured against your property; please note that where enforcement action such as this is taken, the fees incurred will be added to your account. If this action is taken you will be notified accordingly. Once a charge has been secured this will allow for you to arrange a payment plan with Marstons. When considering a payment plan, Marstons will consider your current income and outgoings in order to arrive at an affordable figure.

 

If you wish to conduct a review, please submit all evidence to the National Crime Team as soon as possible. Pease note, if a review cannot be competed, you will remain liable for the full amount which cannot be revoked. I must also confirm that cannot reimburse you for any payments already made.

 

If you have any queries please do not hesitate to get in touch via the contact details below. Please quote the MAAT reference XXXXXXX on any future correspondence.

 

Yours sincerely,

 

 

 

Caseworker

National Crime Team

Fothergill House,

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49 minutes ago, HOWLER said:

it is likely that Marstons will apply for a charge to be secured against your property; please note that where enforcement action such as this is taken, the fees incurred will be added to your account. If this action is taken you will be notified accordingly. Once a charge has been secured this will allow for you to arrange a payment plan with Marstons. When considering a payment plan, Marstons will consider your current income and outgoings in order to arrive at an affordable figure.

 

not ever possible!!!

 

Marstons in this case are acting as merely a powerless Debt Collection Agency, a DCA is NOT A BAILIFF. Only the OWNER of a debt can secure a charge.

even if Marstons WERE acting as bailiffs , a bailiff has no power whatsoever to' apply for a charge to be secured against your property'.

 

pers I suggest you write back to this muppet and put him straight.

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please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Absolute rubbish. A standard letter from a ‘caseworker’.

 

i would escalate, I would  write to chief of LAA and one to your local MP. I’ll see if I can dig Up the name a bit later this morning,

 

I would also mention that you are utterly disgusted that no concern or sympathy was shown towards your wife’s situation.

 

I

 

And as DX says it’s inaccurate   also.

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Just for Howler's benefit (and mine to be honest - I know nothing about this subject area and I'm a bit confused) can we clarify what has been said in the previous two posts?

 

Is it absolutely clear that a charge can't be put on the property owned by Howler and his partner/wife?  Because I suspect (although I may be wrong) that it is that point that Howler wants reassurance on.  I know the reply from the LAA says Marstons might apply to put a charge on the property - and that that is technically wrong - but that doesn't mean the LAA can't apply for a charge and get one, does it, because the LAA does own the debt?  If I were Howler it would be of no comfort to me whatsoever to know that Marstons can't put a charge on the property if the LAA can.

 

(I'm asking for clarification because Howler was originally advised that his wife's property couldn't be used in the calculation, but it appears that that was mistaken - and then there was other confusion over what type of charge could be put on the property - see posts #69(3) to #76.  I didn't follow that discussion about the type of charge, and I'm a bit concerned that if I'm not following it neither will Howler be.)

 

Also - and this might render my above points redundant - I've just read the leaflet linked to by Andyorch here:

 

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/860909/Client_Legal_Aid_Leaflet.pdf

 

That leaflet does say that the LAA can put a charge on your property, but, unless I'm misreading it (and I might be!) it only seems to mention it in the circumstances where the legally aided person keeps or gains property.  Well Howler hasn't kept or gained property, has he?  On the contrary, he was convicted.  So can even the LAA apply for a charge if property was not kept or gained, or am I reading it completely wrongly?  I appreciate it is only a leaflet and not the actual statute/regulation, but that's what it appears to say to me.  (NB - I don't know if the flat was ever in jeopardy in Howler's criminal trial, but he didn't "keep" it afterwards 'cos he never owned it!).

 

As I say - I'm not querying the advice given to Howler, I'm just saying it's not clear to me so may not be clear to him either.

 

Apart from all that I agree with London1971.  Howler should write to LAA CEO and their MP and persevere with "my wife's disability/hardship" line of attack.  It's a ridiculous situation and a waste of money trying to recover it.

 

Good luck HOWLER.

 

 

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Ok here is the Link with name email

and address. Remember to send in writing.

 

https://www.ceoemail.com/s.php?id=ceo-78317 Jane Harbottle , Chief Exec , Legal Aid Agency.

 

Where to start.?Firstly, I would enclose a copy of your letter and the reply you received.

 

Then a note along the lines of
 

Dear XXY

 

See my enclosed my letter and your employee’s reply.


Please read, and I think you will agree that my wife would be classified as ‘extremely vulnerable’

 

Just to re iterate, she is in constant intense pain and on heavy medication to control it, for the rest of her life. Yet your caseworker employee found it appropriate to threaten her with your heavy handed debt collectors again, to take away her home.

 

The tone of your caseworkers reply is almost sneering, shows zero empathy. I’m sure you have a code of practice when it comes to dealing with vulnerable and disabled people. 
 

I would imagine that this doesn’t involve threatening them with Bailiffs, and taking all of their assets .

 

I await confirmation of the cancellation of this debt

 

kind regards

 

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I've just re-read that Legal Aid leaflet again and to me it only mentions putting a charge on your property if you've gained or kept money or property.  And the only example given is from a divorce case where ownership of property is disputed.  Now it might be that it also applies to criminal proceedings where there may be the possibility of confiscating property which is the proceeds of crime (I simply don't know) but is it also saying that if you are charged with any criminal offence and you own any property (that you keep*) you have to repay your legal aid?  That might be true of course, but it seems incredibly draconian to me.

 

I also note that leaflet says the OP should have (and is entitled to ask for) a breakdown of legal fees from the solicitor(s) and/or barrister(s).

 

*As I said earlier, the OP didn't technically keep property anyway 'cos it was owned by his wife.  Whether that is a valid argument or not I don't know.

 

(Sorry - don't want to derail the direction of this thread but If I were Howler these are questions I'd want answers to).

Edited by Manxman in exile
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It’s highly likely that in similarity to many of the agencies I’ve dealt with, such as tax credits and council tax, your average LAA call centre operative, admin person has had very poor training.

 

Some of them won’t even know that they have a code of practice, especially when it comes to the vulnerable. I remember trying to explain to the council Tax call centre that I needed to discuss my wife’s illness, the woman laughed at me, told me she’d heard it all before and wouldn’t put me through. When I’d got through to someone decently high up, it was a different world.

 

It might be worth Howler ringing the LAA anonymously just to ask them to email over their debt collection code of practice before he writes to the Chief Executive so that he can quote the section around vulnerable, disabled people.

 

The reply Howler received is almost weaponised stupidity on the part of the LAA. The very least I’d have expected was a suspension of collection and asking for a doctor’s evidence.

 

Where disabled, depression etc is involved they are on very dangerous ground

 

 

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No need, do as I say. that letter needs to go to the Chief Exec. No way, under any circumstances on this planet should they be going after your wife.  

 

 

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Along with the relevant legislation I have already posted in post #51...further to that....

 

2. Whose Resources are to be Assessed?

 

2.1 Individual and Partner 1. As well as the resources of the individual, the resources of his or her partner are assessed and taken into account. 2. A partner is defined in regulations as: (a) A person to whom the individual is married or in a civil partnership, and is not separated due to a breakdown of the relationship which is likely to be permanent; (b) A person with whom the individual lives as a couple; or (c) A person with whom the individual ordinarily lives as a couple, and from whom they are not separated due to a breakdown of the relationship which is likely to be permanent. 3.

 

This means that there must be a breakdown in the relationship that is likely to be permanent (i.e. at least one of the parties considers the relationship to be at an end) rather than mere physical separation if the partner’s means are not to be aggregated with the individual. Therefore a couple who is physically separated owing to financial or practical reasons, e.g. job location or the fact that one of the parties is in prison, hospital, residential care etc. must be aggregated. 4. Where it is advised that a couple are married according to English law but are not planning to live together until they have undergone their traditional cultural ceremony, you must aggregate their resources in the assessment. 5.

 

A couple do not have to be married for this procedure to apply; the aggregation rule applies to anyone living as a couple including partners of the same sex. Therefore the term partner includes a spouse, civil partner or anyone with whom the individual lives or ordinarily lives as a couple. 6. The means of the individual's partner are not included in the financial determination in the following circumstances: (a) Where the partner has a contrary interest in the dispute in respect of which the application is made. Means will therefore not be aggregated where the partner is the opponent or the potential opponent in the proceedings. The most obvious example is in a matrimonial dispute. Note:

 

It is not strictly speaking necessary for a partner to be the opponent in the proceedings to have a contrary interest. However, if he or she is not the opponent, the establishment of the contrary interest is more difficult. One indication is where the parties are separately legally represented in a dispute. This is not an exhaustive test since, for example, parties might be legally represented if there is only a potential conflict of interest rather than an actual one. Further enquiries may have to be made in cases of doubt and it will be a question of fact in each case whether a contrary interest exists. The guidance note on the financial application forms advises applicants not to include their partner's resources where the partner is the opponent in the proceedings. (b) Where the individual and partner are separated due to a breakdown in the relationship which is likely to be permanent.

 

In general, this will involve the parties living in separate locations. However, this may not always be the case. It is possible for former partners to live separate and apart (which in the context of matrimonial law refers to a breakdown in the relationship) in the same household. This would be the case if they regarded their relationship to be permanently at an end and no longer pooled their financial resources. An example of this would be where a couple have decided to split and have separated their finances and are now simply waiting for the house to be sold before going their separate ways. As is made clear by the definition of a partner in paragraph 1(c), even if they are physically separated (i.e. they live in separate houses) this does not necessarily mean that their means should not be aggregated; the couple must be aggregated unless they are permanently separated for the purpose of the regulations. Note:

 

2.2 Assets Belonging to Others 1. Regulation 16(5) provides for certain other circumstances in which assets belonging to persons other than the individual can be taken into account. There are two scenarios: (a) where another person is, or has been, or is likely to be substantially maintaining the individual or his partner. (b) resources from another person have been, or is likely to be, made available to the individual or his partner.

 

'Person' for these purposes includes a company, partnership, trust etc. 2. If either of the above scenarios apply, the caseworker has power to treat all or part of the resources of the other person concerned as belonging to the individual. 3. It is in the caseworker's discretion as to how much of the resources of the other person should be treated as belonging to the individual and the following guidelines should be followed. 4. The caseworker can assume, unless compelling evidence is provided to the contrary, that assistance given to and resources made available for the individual in the past will continue to be given/made available in the future and the assessment can be carried out on that basis.

 

This situation will most commonly arise where the individual has been supported by a wealthy family, even though the individual himself has no assets. As a rough guide, the caseworker should look at what financial support was given within the 12 months before the application, or from the date of commencement of the litigation if earlier. 5.

 

Note that the resources belonging to the other person should be assessed in accordance with the normal rules of assessment. If that other person refuses to co-operate then the caseworker has power to estimate the value of such resources. Evidence can be called for from the individual to show the amount of money either given to or received from the other person in the past. 6. Any payments made direct to third parties on behalf of the individual can also be included as income or capital by virtue of Regulation 16(5)(b). This could be, for example, mortgage payments made direct to the lender by an expartner, to pay the mortgage on the former matrimonial home where the individual is residing. This would count as maintenance income. Or, for example, a parent has paid off a credit card debt of £10,000 direct to the lender on behalf of their adult child or has purchased a car on the adult child’s behalf. This would count as capital.

 

 

 

 

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The bottom line is if they were allowed to place a charge...they would have by now......as already advised Marstons cannot place a charge...only the LAA.

 

Read between the lines they are passing you off between them...sit tight pay nothing.....ignore......unless you receive anything from the LAA or the Land Registry.

 

Andy

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I agree, I think you should write to the Exec as directed though, and demand your money back you've paid already.

 

Make them apologise and give the money back.  You are morally and legally in the right here. They are likely breaking their own code of practice by threatening a disabled person, and deserve to be had up. It's almost unbelievable to me that an employee could knowingly sneer at, and ignore a disabled, vulnerable person, and to threaten them, knowing the facts.  

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I don't want to bang on pointlessly about this and if anyone thinks I'm misleading HOWLER, please, please tell me.

 

1.  I agree with what London1971 suggests HOWLER should do, but...

 

2.  Everything I've read suggests that a charge cannot be put on the property anyway.  So why not just point that simple fact out to the LAA?  (And tell them to **** off).

 

This is from one solicitors' website: 

 

"Following this change in the legislation, Legal Aid is now to be considered as a loan and not a gift. If as a result of receiving legal aid assistance you gain property that you did not own previously, you will have ‘won’ or ‘recovered’ it. If you keep some property that someone had attempted to take from you, you will have ‘kept’ or ‘reserved’ it. Some examples include a house, shares, life policies or payment of compensation.

If the result of your case is that you recovered or preserved property or a sum of money, and some or all of your legal costs are not met by your opponent, you may be required to pay back some or all of the costs of your case. This is called the ‘Statutory Charge.’ This Statutory Charge is likely to apply in cases involving money or property such as divorce and ancillary relief or personal injury cases."  [My bold].

 

https://www.worthingtonslaw.co.uk/legal-aid-the-statutory-charge-explained/

 

 

Now it doesn't say so explicitly but that implies to me that a charge can be applied if the legally aided person "wins" and they either recover or gain property that was in some way subject to the proceedings.  But that doesn't apply in HOWLER's situation, does it?

 

I don't know if my interpretation of this is correct or whether it only applies to civil rather than criminal cases (the legal aid part of the .gov.uk website appears to be useless) but it does appear to be in agreement with the legal aid guidance linked to previously.

 

Everything else I've read tends to suggest that the aided person must have kept, gained, won or recovered property or money in some way as a result of the proceedings before a charge can be applied.  Is that HOWLER's position?

 

As I said, if I've got this wrong or I'm misleading HOWLER or I'm giving him false hope, please somebody tell me (and him).

 

Otherwise go with a letter as suggested by London1971.

 

 

 

Edited by Manxman in exile
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I agree the question should be asked if it was so easy to put a charge on his wife’s property, why go to a bunch of chancers like Marston’s to do it for them, and why wait this long.

 

Judging by how his case worker at the LAA potentially opened their organisation to a whole world of trouble. They really don’t know what they are doing.

 

Still, I say howler needs to go for the neck, make a huge complaint to the Chief and demand his hard earned cash back.
 

 

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Oh dear 

 

Al this legal stuff does nowt for me. Can't understand a word. 

 

But am very impressed by the stuff you guys turn up. 

So are we in agreement with we go to top dog and complain again. C/w copies of letters. ¿???????? 

Thanks again guys. 

 

 

 

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