civil money claim against ex

[gwenlillian]

I reached an agreement with my ex about a pension plan, to cash it in and split the beneficial lump sum 50/50. My ex had the money paid into his bank account, was overtaxed and made a refund claim. I assumed he would split the refund with me as it was from the fund, but unbeknown to me he had a tax debt. HMRC rightly took his debt money first and then sent him the balance, but he then split the balance with me. I tried to explain so many times that he had made me pay his tax debts by doing that and he became rude, obnoxious and ignored my communications thereafter. In the end I make a claim in the small claims court for the monies and I had sufficient info to show an agreement was reached and then reneged on by him, the FB that he is.

This tale gets worse because I have been struggling so much with our son and the property mortgage and bills, and he has not paid his half of the mortgage for six years so I wanted this claim settled asap. However, I started getting rude letters from his solicitor telling me I had to sell the house and all sorts of things and that "as sure as night follows day" I would not win my claim. I had no legal help and tried to explain to that firm that I had a fair and reasonable approach and I wouldnt have gone to Small Claims if I didn't think I was right. About a week before the hearing, during the evening, I received an email from his solicitor with a document sent to the court which said that I had controlled my ex during our relationship, taken money from his bank, persuaded him into releasing the pension monies and that I was not going to a penny. There were more hurtful and upsetting statements that I cant go into here, but I was shocked. I tried to answer it all and sent proof that these were all lies into the court.
I arrived for the hearing and there he was, prancing around in a suit I had bought him with a Barrister in tow! I was so upset I left the building and in the end just couldnt go back in, I had a mini breakdown and am now under the mental health team. They went ahead without me and I lost, with an order to pay him £900. In about 4 weeks I am due back in court as I requested a set aside hearing. I am not sure how to proceed with this and whether I can ask for the matter to be settled at the same time?

[Kati]

Re: civil money claim against ex

tagging [MENTION=6]Amethyst[/MENTION] [MENTION=85500]Peridot[/MENTION] [MENTION=39710]des8[/MENTION] [MENTION=31453]PAWS[/MENTION]

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I have no advice personally [MENTION=36324]gwenlillian[/MENTION] ... but I will offer you ((HUGS)) while you're waiting for replies xx

[gwenlillian]

Re: civil money claim against ex

thank you

[PAWS]

Re: civil money claim against ex

Hello Gwenlillian
I am sure one of the legal bright sparks will steer you in the right direction but in the meantime…can I ask is this really worth all the grief you are putting yourself through.
Now I take it for granted that your son is also his son. I absolutely agree he should be stumping up so far as maintenance/mortgage is concerned and yes, technically if he received a rebate on the tax he paid on his pension pay-out then you should have received your full share but not only has this fight cost you £900 it is making you ill. Now perhaps the rebate was so large it is worth the battle but I suspect it is not worth losing your sanity.
All of our lives are a precarious balancing act. Ledgers if you like. Now you, because you loved this man and shared your life with him naturally helped him pay his tax bills and bought him nice suits and it would be absolutely galling to see him sashaying about in the same suit while fighting you in court but letting this hurt you is simply giving him an open goal to shoot into.
Now let’s leave the tax rebate aside for a minute. Has he, by not paying the mortgage, reneged on maintenance payments? If so that is a big no no and the clever beagles who are expert in that situation will steer you through.
As I said before the tax rebate would need to be considerable for you to gamble more money on fighting it so again that would be an expert beagle issue.
The main problem at the moment is he is still hurting you and winding you up. To really beat him you have to be indifferent to him but unfortunately there is no legislation that will change how you feel. Only time will do that-Perhaps when his beer gut is hanging out over the top of the suit trousers you might feel a bit better!
Now this is only my opinion but any action taken in hot blood or anger only ends in tears. Unless you are desperate for this money then get yourself back on an even keel first for your own sake and your sons. Remember revenge is a dish best served cold.

[retired solicitor]

Re: civil money claim against ex

I'm guessing that you've already had some limited legal advice about this matter, at least in so far applying for set aside is concerned

In order to win an application for set aside, you need to provide supporting evidence that you had a good reason for not attending the previous hearing AND a reasonable prospect of success at a re hearing.

Have you already filed any supporting evidence for your application for set aside?
You say that you had a mini breakdown outside the court which led to your having to leave before the hearing began and that you are now under the mental health team so it would be helpful if one of the mh team, preferably a doctor, could provide some evidence that you were in effect under too much stress to be able to continue into the hearing on the day it was fixed. It's difficult but not impossible for a doctor to provide retrospective evidence of your mental abilities on the day which caused a mini breakdown. I'm not sure from your post if your ex or his barrister saw you there or whether you had to leave hurriedly before one or other saw you? It may strengthen your application for set aside if one or other saw you there but omitted to tell the judge this when they went into court without you.

I can't comment on the other part of what you must prove ie whether or not you have a reasonable prospect of success at re hearing because I don't know the background or what was ordered ( apart from the order for payment of £900). I don't know if this payment was a costs order or what the judge ordered should happen to the jointly owned property. If you can explain more, I may be able to explain more about your prospects of success at a re hearing.

But if you can't get legal aid, do bear in mind that you are going to need to be sufficiently strong emotionally and mentally to attend further hearings which will be stressful for you and potentially damaging for your mental health when there is an imbalance of power between you and your ex, especially if he can afford legal representation at further hearings

It may be that the order made in your absence was totally unfair to your or not too bad, I can't offer even a preliminary opinion on that without knowing much more.

But if you can persuade the judge that you have a reasonable prospect of success at a re hearing, I can say with a fair degree or certainty that the re hearing won't take place immediately. Instead, a further hearing date will be fixed when you and your ex will be given the chance to make full representations.

[retired solicitor]

Re: civil money claim against ex

At the outset, can you clarify whether your ex is an ex husband or an ex partner?

[gwenlillian]

Re: civil money claim against ex

Hi and thank you both, I have been offline and just got my internet back on temporarily - again due to financial issues. You are right of course about the balance of life, this is killing me and my son is really hurt just when he is off to college in September. He is the ex-partner not ex-husband, the order of £900 is his costs, and no judgement as far as I can tell on the issues, simply thrown out as I wasnt there, but I was there glued to the wall, couldnt move, or sit down, palpitations and distress increasing, so left, but had signed in with the usher, and had the misfortune to bump into my ex on the stairs, when I first arrived in good time. In the waiting area there was no sign of him but then a barrister approached me and told me all the things i had done wrong, and how I was going to lose etc, and after that I needed air. So, it seems that the ex was in a side room not showing is face. I must have sat in my car for a few hours before being able to drive home but rang my son and asked him to let the court know that i could not attend. Later on that day I received an email from his solcitor asking how I was going to pay. I saw my doctor that night who signed me off for one month with stress related anxiety disorder, something I have struggled with for years, and unable to drive in certain situations, motorways, traffic. Known to my ex of course since he is the cause. It seemed clear to me at one time but now I am confused again. I sought and got some advice from a MaKenzie friend but I dont know if he will come to the hearing with me as I cant afford to pay anything, unless I win my claim. At the moment I guess I am just getting the order made, set aside for now and then I will have the problem of another hearing at some time. I had already tried to get a determination without a hearing, prior to all this, as I feared I wouldnt be able to cope but the court wanted to do it as an actual hearing, so I had to bite the bullet and try. The refund was over £5000 by the way. And no, he hasnt paid the mortgage but now saying through is solcitor that the child maintenance he paid was the mortgage money which is not true of course, but it is just messing everything up all the time.

[gwenlillian]

Re: civil money claim against ex

I cannot say how upsetting it was to read the things that his solicitor helped him to submit, about me, a character assassination of the tallest order. I have not looked at the paperwork since that hearing in June but did send the court my doctors letter and appt. information for mental health team, with my set aside request, and, I should have said, I proposed to scale down the claim in terms of who was liable for tax etc, and just claim the half of the tax that represented his debt with HMRC. I think the solicitors upset me too with their behaviour, they kept emailing me letters telling me that I had to use them to sell the house, and use their conveyancing and let my ex manage the whole thing and come into the property to do it. I really should have sought an order against him in the past, but was so glad to he had gone that I didnt think I needed it. He used to thrown furniture around, punch holes in the walls, and squared up to our son, which was the final straw. Other stuff too, but I tried to keep my claim simple and clear, it is just about the money he made me pay for his debt by not passing it on to me. It was he and his solicitor that told me that they were instructed and then I found out that they were not. They wrote a week before the hearing and said they were only advising but had sent me a copy of their notice to the court that they were acting for him, but that was all a ruse.

[gwenlillian]

Re: civil money claim against ex

sorry - back again - the hearing is Sept 20.

[retired solicitor]

Re: civil money claim against ex

sorry - back again - the hearing is Sept 20.

Thanks for clarifying matters.

If you are right in thinking that there has not been any decision made on your claim, and you are therefore applying only to set aside what seems to have been "an unreasonable costs order", you should disregard the previous part of my advice where I referred to the need to prove a reasonable prospect of success at a re hearing.

Legal fees are not usually recoverable at a hearing in the Small Claims Court. There is one exception to this rule and that is where a judge believes that one party has behaved unreasonably. There is no definition within the Court Procedure Rules as to what constitutes unreasonable behaviour but failure to attend a hearing could amount to this. It really depends on the surrounding facts and the view which the Judge takes on the medical evidence you have supplied and any other evidence given at the next hearing.

It is daunting to find yourself unrepresented and facing a barrister at court. Unfortunately there is often an inequality of representation at court hearings. While Judges do as much as they can to prevent this causing injustice, it is especially difficult and disturbing when there has been a history of domestic abuse.

As you haven't been able to face looking at the paperwork recently, I would advise you to check the terms of the last court order. It might be a good idea to post a copy of the body of the order ( without identifying details) so that others who pop along to advise you after me can be sure that my current understanding of your position is correct.

[gwenlillian]

Re: civil money claim against ex

ok, I have had a go at this document and try to post it here. I can tell you now that it says the claim is dismissed. Does that mean then that I wont get another hearing re the actual claim please?

[retired solicitor]

Re: civil money claim against ex

ok, I have had a go at this document and try to post it here. I can tell you now that it says the claim is dismissed. Does that mean then that I wont get another hearing re the actual claim please?
[ATTACH=CONFIG]30240[/ATTACH]

This order has ended your claim and awarded costs against you.

If you are applying to set aside this order, you are in effect asking for your claim to be reinstated. Therefore as explained in my first reply, you need to be able to persuade the court both that you had good reason not to attend ( this is where your medical evidence comes in ) AND that you have a prospect of winning your claim if it is reinstated.

If the judge is minded to allow you to reinstate your claim, he or she will order that a final hearing date be fixed. He or she may make a decision on the costs already ordered against you or may order that a decision on costs be postponed until the final hearing and dealt with when the outcome of that is known.

You are, unfortunately, in a difficult position. I do hope that you are going to receive the support of your McKenzie friend if you continue with this application for set aside. You also need to be very sure that you are going to be able to avoid being overwhelmed a second time at court. Otherwise I fear that you risk further costs being awarded against you.

[gwenlillian]

Re: civil money claim against ex

Thank you - I didnt realise that. I see the potential to open the door to more costs but wonder if I can find out why they are so high already, and why it was necessary to use a barrister to defend a small claim under £5000. I am thinking now that I will need to present my claim in a clear and simple form on the day to show it is obvious, as it is to me, and hope that the judge will see that and allow it to be heard. If I cant even show that then it would be a travesty and I will contact my McKenzie friend and my doctor this week. Thank you so much for the advice.

[gwenlillian]

Re: civil money claim against ex

In response to PAWS: Thanks - this made me laugh, although I dont know what to do about the issues on debts he left here for me to pay, left with a 1/4 mil mortgage and a dependant son now returning to education. The immediate response to my claim was to threaten the forced sale of the home, which I find malicious, having not been mentioned ever in the last seven years. On leaving my ex said he didnt want anything to do with the house and he didnt pay anything more, so I had always thought that meant that he was surrendering his interest. Years down the line he suddenly started paying half but only for about 11 months then stopped again, maybe a new girlfriend or someone advising him. I then got letters from his solicitor telling me that I had to pay him rent for his half of the house! I looked that up and think that is wrong, as no capital is being paid down at all, only interest, so its like renting. It is only me who has paid out for repairs and maintenance and new windows etc since he left, and now he wants to take half which seems unfair to me. I have been trying to make the property worth enough to clear the mortgage as I dont want to end up with a large debt if there's no equity and there is no repayment vehicle either. All a bit of a nightmare, so the threats about forcing me and our son out will only make us homeless and nothing more right now. It is hard to ignore such threats and remain calm as I know that we could be evicted, I have paid off all the arrears before on my own and now they are building up again, with other ccjs in his name too that I was paying all of. I have had to stop. Thanks again.

[retired solicitor]

Re: civil money claim against ex

Thank you - I didnt realise that. I see the potential to open the door to more costs but wonder if I can find out why they are so high already, and why it was necessary to use a barrister to defend a small claim under £5000. I am thinking now that I will need to present my claim in a clear and simple form on the day to show it is obvious, as it is to me, and hope that the judge will see that and allow it to be heard. If I cant even show that then it would be a travesty and I will contact my McKenzie friend and my doctor this week. Thank you so much for the advice.

I suspect that, in non legal terms, the answer to your question - why it was necessary to use a barrister to defend a small claim- is in reality that it wasn't but your ex chose to do so because he could afford to.
In legal terms, the usual rule with regard to costs in the Small Claims Court is as I explained in post 10. I think that here, the judge was persuaded to make an order including lawyers' fees because of the exception for "unreasonable costs" which is provided for in CPR 27.14 (g).
I don't think that your ex's costs could have been as high as £900 if lawyers' fees had been excluded.
Having said that, the rule about "unreasonable costs" is not intended to be unduly punitive and the judge is entitled to take into account all circumstances including your respective financial positions and legal knowledge and can take into account behaviour during the proceedings. So it is open to you to argue at the hearing in September ( or at any later final hearing, if the decision is deferred) that you were intimidated by the communications from his solicitor prior to the day of the hearing and in particular, by the confrontational approach of his barrister when you arrived at court for the hearing. Your description of his lawyers' attitude towards you certainly makes them sound intimidating.
Overall, do bear in mind that you appear to have 2 outstanding legal issues with your ex. One is this in the Small Claims Court and the other is your respective entitlements in the beneficial interests of your home. I would expect the latter to be far more significant in monetary terms so if your emotional/financial reserves are limited, there is probably something to be gained by holding back reserves for the more important "battle" which lies ahead with regard to the property.