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Hello....
I have inherited a lease which was purchased from my local council under the Right to Buy (RTB) scheme.
Background.
The Claimant (the Council) issued proceedings in the County Court (CC) for the recovery of service charges.
The case was allocated to the Small Claims Track (SCT) neither I nor the Council objected to the allocation.
At the hearing I represented myself as a litigant in person (LIP) and the Council engaged the services of a barrister.
The District Judge (DJ) transferred the proceedings to the First Tier Tribunal Property Chamber (FTTPC) where I acted for myself and the Council again engaged the services of a barrister who was supported by the Council's in house legal team.
The Council were successful on all counts and the case was returned to the CC for judgement and costs. The CC allocated 30mins for the hearing.
At the hearing held before a Deputy District Judge (DDJ) the Council claimed all their costs in the proceedings in the CC and the FTTPC by way of contract citing the case of Chaplair Limited v Kumari [2015] EWCA Civ 798 and clause 3.(35) of my lease which reads:
The DDJ instructed the Council's solicitor to draw up the Court Order which reads:
I was allowed 28 days to pay.
How can this be permitted to happen! If I had been successful, I would be restricted to recovering the fixed costs which are allowable for a case heard on the SCT.
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Please help:
I am now faced with a Judgement Debt that I can not challenge on the grounds of reasonableness which I would be permitted to do if the debt was an Administration Charge. Therefore it is likely that I will be subjected to the rigors of debt enforcement before the Council issue a s.146 notice pursuant to clause 3.(35); that is of course if they ever do, given that there is no objective evidence to support an intention to forfeit and the Council have demanded and accepted payment of ground rent throughout the period of litigation.
And that which I have underlined is the root of my question to the Beagles.
1. If I don't pay the judgement debt; will the Council be forced to serve a s.146 notice thus enabling me to seek relief on grounds that the Council have waived their right to forfeit and as such the expenses claimed pursuant to clause 3.(35) can not be justified?
2. If I do pay the judgement debt; will I be denying myself a claim for restitution of the costs, if such a cause of action exists; as it will appear that I am avoiding forfeiture, therefore there will exist no requirement for the Council to issue a s.146 notice?
A response from the Beagles will be greatly appreciated. I am 71 years of age and frightened by the position I am in I am truly exhausted by this experience, losing the case is one thing I must accept, but, being mugged for the costs is unacceptable.
Â*
I have inherited a lease which was purchased from my local council under the Right to Buy (RTB) scheme.
Background.
The Claimant (the Council) issued proceedings in the County Court (CC) for the recovery of service charges.
The case was allocated to the Small Claims Track (SCT) neither I nor the Council objected to the allocation.
At the hearing I represented myself as a litigant in person (LIP) and the Council engaged the services of a barrister.
The District Judge (DJ) transferred the proceedings to the First Tier Tribunal Property Chamber (FTTPC) where I acted for myself and the Council again engaged the services of a barrister who was supported by the Council's in house legal team.
The Council were successful on all counts and the case was returned to the CC for judgement and costs. The CC allocated 30mins for the hearing.
At the hearing held before a Deputy District Judge (DDJ) the Council claimed all their costs in the proceedings in the CC and the FTTPC by way of contract citing the case of Chaplair Limited v Kumari [2015] EWCA Civ 798 and clause 3.(35) of my lease which reads:
3.(35)* To pay all expenses (including solicitors costs and surveyors fees) incurred by the Council incidental to the preparation and service of a notice under Section 146 of the Law of Property Act 1925 notwithstanding forfeiture is avoided otherwise than relief granted by the Court.
The DDJ instructed the Council's solicitor to draw up the Court Order which reads:
Before Deputy District Judge ***** sitting at the County Court at *********, The Law Courts, (address) Upon hearing Mr *****, Solicitor, appearing on behalf of the Claimant and Mr ******* in person. It is ordered that:-
1. The Defendant shall pay the Claimant the sum of £4,314.57 inclusive of interest in the amount of £744.38.
2. The Defendant shall pay the Claimant’s costs summarily assessed in the amount of £6,000.
3. The Defendant shall pay the total amount of £10,314.57 by no later than (Date).
1. The Defendant shall pay the Claimant the sum of £4,314.57 inclusive of interest in the amount of £744.38.
2. The Defendant shall pay the Claimant’s costs summarily assessed in the amount of £6,000.
3. The Defendant shall pay the total amount of £10,314.57 by no later than (Date).
I was allowed 28 days to pay.
How can this be permitted to happen! If I had been successful, I would be restricted to recovering the fixed costs which are allowable for a case heard on the SCT.
-------------------------------------------------------------------------
Please help:
I am now faced with a Judgement Debt that I can not challenge on the grounds of reasonableness which I would be permitted to do if the debt was an Administration Charge. Therefore it is likely that I will be subjected to the rigors of debt enforcement before the Council issue a s.146 notice pursuant to clause 3.(35); that is of course if they ever do, given that there is no objective evidence to support an intention to forfeit and the Council have demanded and accepted payment of ground rent throughout the period of litigation.
And that which I have underlined is the root of my question to the Beagles.
1. If I don't pay the judgement debt; will the Council be forced to serve a s.146 notice thus enabling me to seek relief on grounds that the Council have waived their right to forfeit and as such the expenses claimed pursuant to clause 3.(35) can not be justified?
2. If I do pay the judgement debt; will I be denying myself a claim for restitution of the costs, if such a cause of action exists; as it will appear that I am avoiding forfeiture, therefore there will exist no requirement for the Council to issue a s.146 notice?
A response from the Beagles will be greatly appreciated. I am 71 years of age and frightened by the position I am in I am truly exhausted by this experience, losing the case is one thing I must accept, but, being mugged for the costs is unacceptable.
Â*
