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    • Northmonk forget what I said about your Notice to Hirer being the best I have seen . Though it  still may be  it is not good enough to comply with PoFA. Before looking at the NTH, we can look at the original Notice to Keeper. That is not compliant. First the period of parking as sated on their PCN is not actually the period of parking but a misstatement  since it is only the arrival and departure times of your vehicle. The parking period  is exactly that -ie the time youwere actually parked in a parking spot.  If you have to drive around to find a place to park the act of driving means that you couldn't have been parked at the same time. Likewise when you left the parking place and drove to the exit that could not be describes as parking either. So the first fail is  failing to specify the parking period. Section9 [2][a] In S9[2][f] the Act states  (ii)the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid; Your PCN fails to mention the words in parentheses despite Section 9 [2]starting by saying "The notice must—..." As the Notice to Keeper fails to comply with the Act,  it follows that the Notice to Hirer cannot be pursued as they couldn't get the NTH compliant. Even if the the NTH was adjudged  as not  being affected by the non compliance of the NTK, the Notice to Hirer is itself not compliant with the Act. Once again the PCN fails to get the parking period correct. That alone is enough to have the claim dismissed as the PCN fails to comply with PoFA. Second S14 [5] states " (5)The notice to Hirer must— (a)inform the hirer that by virtue of this paragraph any unpaid parking charges (being parking charges specified in the notice to keeper) may be recovered from the hirer; ON their NTH , NPE claim "The driver of the above vehicle is liable ........" when the driver is not liable at all, only the hirer is liable. The driver and the hirer may be different people, but with a NTH, only the hirer is liable so to demand the driver pay the charge  fails to comply with PoFA and so the NPE claim must fail. I seem to remember that you have confirmed you received a copy of the original PCN sent to  the Hire company plus copies of the contract you have with the Hire company and the agreement that you are responsible for breaches of the Law etc. If not then you can add those fails too.
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    • I understand what you mean. But consider that part of the problem, and the frustration of those trying to help, is the way that questions are asked without context and without straight facts. A lot of effort was wasted discussing as a consumer issue before it was mentioned that the property was BTL. I don't think we have your history with this property. Were you the freehold owner prior to this split? Did you buy the leasehold of one half? From a family member? How was that funded (earlier loan?). How long ago was it split? Have either of the leasehold halves changed hands since? I'm wondering if the split and the leashold/freehold arrangements were set up in a way that was OK when everyone was everyone was connected. But a way that makes the leasehold virtually unsaleable to an unrelated party.
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Urgent court hearing 28.06.23 Driveway Issue


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We would be really grateful if someone please help with our driveway/land issue. We have a court hearing date of 28th June which originated from the POC attached. We have made notes on this original document and are looking for advise on this legal issue. We are currently working on a witness statement which we can post tomorrow. Any help would be really appreciated. If you need any further info or evidence please just ask. 

layout plan.pdf Original letter.pdf Particulars of Claim with notes.pdf

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We went to mediation that was booked by the claimant without informing us of a date. I was unable to find a direct access barrister to help us as they had QC. Our solicitor was out of his depth.

15 hours later we signed a tomlin order and took a copy home. Having been threatened of court proceedings which were already in place for 3 weeks later. Never realised we had a draft which we thought was bad enough.

A year later found out that there was a different version of what we had signed. when a surveyor looked at the document in detail and prompted by the Claimant. Our solicitor then asked a barrister for the legal implications. He replied that we had signed away another part of the drive to be cleared now know as section A that had never been discussed at the mediation.

I wrote to the mediating barrister who oversaw the mediation to ask for notes as Both my husband and I and our solicitor never discussed are A with anyone that day. Our solicitor had to resign and told us to seek legal advise. He waived his outstanding fees of £5,000 we had paid him in excess of £25,000 We really need to know how read that POC made by their barrister and that letter that started all this. 

The other side booked a court hearing date prior to a mediation. We were forced into mediation date 30th May 2018 they had a QC We had not been given a choice of dates. I tried to book a direct access barrister. The three I had researched were unavailable on that date. it was half term we had no child care.

The POC attached on the first post had been served with the court previously and the date of hearing confirmed. the mediation went on for 14 hours and in our view forced to decide on a section of the driveway that had not been driven on for over a hundred years. A year later we realised we had come away from that mediation with a draft of that Tomlin Order which made no mention of an area now known as area A

This was due to our solicitors incompetence that he didn't pick it up. He contacted a barrister himself to clarify after the Claimants solicitor perused us to have area A cleared.

To find that we had signed a document relinquishing control to have all the mature trees and shrubs cleared for the claimants benefit. We confirm as our solicitor did that this area was never discussed in that meeting. The area is right in front of our property, we would have defended it as the houses in front of us will overlook our property. It was part of planning back in 1987-89 that as an infill the adjoining old properties had to be screened. 

We need as much help as we can get. I contacted the barrister mediator to ask for notes relating to that mediation. I never had a reply. We feel like we had a gun to our heads to sign something that now has caused us so much stress and worry. 

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12 minutes ago, honeybee13 said:

Is that any better, Manxman?

HB

Thanks but I think it would be a bit easier to understand the problem and the sequence of events if the OP could give an itemised timeline of what has happened and when. 

eg:

"1.  The right of access which is the subject of this dispute was created on dd/mm/yyyy when the then owner of property A granted it to the then owner of property B.  The land the right of access was granted over was defined as...

2.  We bought property A on .......

3.  We had no problems with the then owners of propety B...

3.  The claimant bought property B on ...

4.  Starting in mm/yy the claimant has repeatedly complained about...

etc etc".

At the moment I'm not sure if there have been two claims made, and one has already gone to mediation, or what.  The OP made no mention of mediation in the first post and just attached three documents with no real background explanation of what it was about.

And the hearing is less than two weeks away.

Why has the claimant retained a QC for a right of way dispute?

Has the OP really already paid over £25k to their solicitor - who seems to have had the wool pulled over their eyes?

I think more detail and background is required.

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1.  The right of access which is the subject of this dispute was created on 31 /07/1987 by the previous owner,the land was split down the centre to build what we are now living in. Planning started in 1987 to build this infill property. Our property then took ownership of the land when this was purchased by their parents. The rights were transferred to them. The original ownership was transferred. Their was one existing property with a right of access and now the second property were the land was transferred from. The drive was access for those two properties and our predecessors the owned of property. There have not been any other transfers until the Mediation Tomlin order was issued. We had to back down under the pressure of more court threats to allow the passing bay. A granted it to the then owner of property B.  The land the right of access was granted over was defined as...access way 3meter track down to main road.

2.  We bought property A on May 11 2011- We still know the original owner of the Claimants property. The Claimants moved in approx. 6 months after us.

3.  We had no problems with the then the previous owners of property  but they had bought it 6 years previously knocked the bungalow down and put up a kit house. They then sold to the Claimant.

3.  The claimant bought property B on Sept Oct 2011..Also didn’t transfer all land until a later date. The land apparently was in our name,

4.  Starting in 2014/16 the claimant has repeatedly complained about...The complaints started in 2012-14 accusing me of being a public nuisance for not reversing out into the queue of traffic I had come in from 2/3 way up drive when Claimants wife drove at me. They took down one of our trees from the rear garden, building fences and gates at the front of their property when it had planning permission for soft landscaping.

At the moment I'm not sure if there have been two claims made, and one has already gone to mediation, or what. It went to mediation the Claimant had a QC. They booked date not giving us an option I had found a direct access barrister but was unavailable on their booked date. A Tomlin order was the result. The POC was already lodged with the court in case we didn't agree in the mediation. Our solicitor was out of his depth. They are aggressive and want us to do as they demand.  The OP

At the moment I'm not sure if there have been two claims made, and one has already gone to mediation, or what.  The OP was their reassurance of getting us to agree to their terms. The Court date was already fixed  made no mention of mediation in the first post and just attached three documents with no real background explanation of what it was about.  the documents give detail of what they wanted. The plan shows the drive. We are in the thick line.

And the hearing is less than two weeks away. yes 

Why has the claimant retained a QC for a right of way dispute? We are sure it was to get what he wanted, he works for an investment bank, Bragged to my husband he has deep pockets.

Has the OP really already paid over £25k to their solicitor - who seems to have had the wool pulled over their eyes? We have already paid that in legal fees trying to defend ourselves, it was a kind friend who recommended we sought help here.  

I think more detail and background is required.

made no mention of mediation in the first post and just attached three documents with no real background explanation of what it was about.

I hope this explains some part. I have 10 files with the whole case in and don't know  how to sort this out. 

Thank you 

Here is the Tomin order, as you can see we were crucified with all kinds of conditions to comply with to favour the other side.

Tomlin Order no names.pdf

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I hate to say this, but if you've already spent £25k on legal fees and to no avail, I'm not sure what you can expect from posters on an internet forum.

Disputes about property law issues can be very complex and very expensive and I'd suggest really require paid for professional advice.

But see what others say.  @BankFodder is usually very good in terms of giving reliable advice.

(I think if I were you I'd be considering suing my - former? - solicitor...)

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This all rests on what was previously legally agreed in the original rights of usage of the road and any actions required to make it a safe way to navigate to the main road.

You should not reverse a vehicle onto a main road. Not allowed per the highway code.

Have you thought about submitting video evidence, where you can more easily explain the problems?

 

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6 hours ago, honeybee13 said:

Have you complained to the solicitor about this, using their complaints procedure?

HB

He admitted he had made a mistake and told us to take independent legal advise. He sent us his bundle but with all things happening in our lives we only sent it to one legal company to look at it on a no win no fee. They needed a deposit of around £2,000 to look at the case. We didn't have funds available. Is there a time limit ?

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2 hours ago, unclebulgaria67 said:

This all rests on what was previously legally agreed in the original rights of usage of the road and any actions required to make it a safe way to navigate to the main road.

You should not reverse a vehicle onto a main road. Not allowed per the highway code.

Have you thought about submitting video evidence, where you can more easily explain the problems?

Thank you, I can upload the documents but as you know they will need a lot of tipex to hide the detail, would that be useful ? 

We know about the reversing but both neighbours fitted gates which has stopped us turning. All the delivery drivers are also reversing into the main road too.

 

 

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This is from the legal ombudsman's pdf that I found online.

From 1 April 2023, the time limits for referring a complaint to the Legal Ombudsman will be no later than:
• one year from the date of the act or omission being complained about; or
• one year from the date when the complainant should have realised that there was cause for complaint. [My italics]

HB

 

Illegitimi non carborundum

 

 

 

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1 hour ago, honeybee13 said:

This is from the legal ombudsman's pdf that I found online.

From 1 April 2023, the time limits for referring a complaint to the Legal Ombudsman will be no later than:
• one year from the date of the act or omission being complained about; or
• one year from the date when the complainant should have realised that there was cause for complaint. [My italics]

HB

We did write to the legal ombudsman, just found the letter. I remember calling them as well. We have not had anything back from them in our files. I still have files I have not been through. 

 

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@The Skiing Gardener  - a couple of questions for you.  (Please number your answers appropriately.  DO NOT simply quote my questions and then add your answers within the body of the quote.  It makes it VERY confusing to follow your answers.)

1.  Ref posts #3and #8:  Are you saying that the terms of the final Tomlin Order you signed during mediation on 30 May 2018 were different from the terms you thought you had agreed on?  I don't understand this.  Did you not read what you were signing?  Did the solicitor representing you not explain to you what you were signing?

2.  What exactly in the Tomlin Order are you unhappy about?  Is it the bit about access being increased at some point from 3m to 5.5m?  Is it that increased width that the current claim is about?  Or are you unhappy about the resurfacing and maintenance work?  (It seems to me that everybody is contributing to the costs so I'm not sure what the issue might be?)

3.  When you discovered (in 2018?) that the terms of the Tomlin Order were different from what you thought you'd agreed to, what steps did you or your solicitor take?

4.  What outcome are you hoping for?  The current claim seems only to be for £240 (and statutory interest) plus a declaration that the claimant "... enjoys a right of way over the whole of the Access (coloured grey on the plan attached to the transfer dated 31st July 1987)".  Are you disputing the 1987 right of access?

5.  I'm not being funny, but what have you spent £25k in legal fees on?  So far as I can tell there was some sort of initial claim in 2018(?) but that was resolved (or should have been resolved) by the Tomlin order.  Did legal representation for that cost you £25k?

6.  You say you now have to reverse out of your property because of electric gates installed by the claimant.  If the gates have been installed on the claimant's property, how do they affect you?  Are they blocking a right of access you had?  I don't understand how their installation has caused a problem.

 

Edited by Manxman in exile
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19 hours ago, The Skiing Gardener said:

Thank you for your advise and if you could recommend any steps forward we can take suing the former solicitor we would really welcome your advice. It has been a really bad experience...  

 

8 hours ago, The Skiing Gardener said:

He admitted he had made a mistake and told us to take independent legal advise. He sent us his bundle but with all things happening in our lives we only sent it to one legal company to look at it on a no win no fee. They needed a deposit of around £2,000 to look at the case...

 

Well if you've already complained to them and all they did was suggest you seek legal advice, then I suggest you seek that advice and consider suing them.  

You said previously that you've already spent £25k, but that your solicitor waived a further £5k in fees that was due to them.  Were there any conditions attached to them not charging you that £5k?  What was that £5k in respect of?

8 hours ago, honeybee13 said:

This is from the legal ombudsman's pdf that I found online.

From 1 April 2023, the time limits for referring a complaint to the Legal Ombudsman will be no later than:
• one year from the date of the act or omission being complained about; or
• one year from the date when the complainant should have realised that there was cause for complaint. [My italics]

HB

 

I don't know about complaints to the legal ombudsman, but the OP should also be complaining to the Solicitors Regulation Authority  (SRA | Problems with law firms and individuals | Solicitors Regulation Authority)

The problem is that I suspect the OP wants to complain about what their solicitor did (or failed to do...) back in 2018.

If the OP wants to sue their former solicitor they need to do it within 6 years of whatever it is they're complaining about.

 

 

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I think it may be one year now, for the ombudsman, MiE. I posted something earlier about that, from the ombudsman website. Suing would be different of course but I don't know how easy it is to get one lawyer to sue another one. One NWNF outfit have already

As you say, the complaint would have to go through the lawyer's complaint procedure, the SRA or possibly straight to the ombudsman if I've understood this right.

WWW.SRA.ORG.UK

We regulate those approved or recognised by us in a proportionate way and in the public interest.

HB

 

Illegitimi non carborundum

 

 

 

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10 hours ago, unclebulgaria67 said:

This all rests on what was previously legally agreed in the original rights of usage of the road ...

 

You'd think so, wouldn't you?  But what I don't understand is that although the claimant's particulars of claim seem to be seeking a declaration about the original right of way granted in July 1987, the OP seems to be implying that they (the OP) were deceived into granting further access rights during mediation in 2018.   (I'm afraid I've found the OP's account of what has happened very confusing and very difficult to follow).

10 hours ago, unclebulgaria67 said:

... You should not reverse a vehicle onto a main road. Not allowed per the highway code...

 

@The Skiing Gardener said post #14:  "We know about the reversing but both neighbours fitted gates which has stopped us turning. All the delivery drivers are also reversing into the main road too."

This happens all the time in my neighbourhood.  The answer is to reverse into your drive and not out of it.

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Find this all very confusing.  If the OP could upload a much clearer plan of the properties with them clearly labelled,  this may help.

 I am not sure what the exact legal position is with the rights the parties have.

As I am not legally qualified and don't understand what has happened with the various rights over the years.  Impossible to offer anything useful.

Best option must be find a local Solicitors deals which these issues.

We could do with some help from you.

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