Asking a court to set aside a default claim and unscrupulous solicitor

[JP3333]

Hello everyone,

I received a letter from my bank (via my parents address) 6 weeks ago which said that my freeholder's solicitor was demanding £3,600 (£1,600 default CCJ for ground rent £500 , late fees £400, court fee £70, £450 legal fees for contemplating forfeiture and £180 legal fees for the CCJ) and £2,000 legal fees (£400 for the legal fees to secure the CCJ and £1,600 for "contemplating" forfeiture and the associated searches to find me). I think that the solicitor expected that the bank would pay the charges putting them on my mortgage. This was the first I had heard about owing this money and had forgotten to change over my direct debit for the ground rent on an apartment I own but moved out several years ago in 2016.

Coming as a shock to me I immediately contacted the managing company and was referred to the solicitor acting for the freeholder. 2 days later the solicitor demanded the £3,600 and said I had to pay and sent me limited information, saying he had served a S146 notice on me, although he had never spoken to me via any form of communication. I initially said that I would comply with the court but was disputing the charges and would seek advice. I told the managing company where to contact me and that they had the wrong address (an old one) on file so gave the "new one". I immediately phoned the courts and asked what my options were after saying that I had not received any correspondence and they said that I could seek a set aside and that this would cease action.

A day later I filled in the form N244 and provided a witness statement stating that I had in some time in February 16 contacted the managing co and provided a new address. The basis of my defence is that they served the wrong address. The court wrote back and gave me 3 weeks until a hearing. I am looking for work away so couldn't make the appearance and called to ask for a telephone hearing. They told me to submit another N244 which I did and spent the whole week following up the courts regarding an adjournment that came through on the 11th hour before I was due to go to court. Just prior to this I also found a letter that I had in my paperwork to the managing company so sent that to the court with my paperwork and I found that in 2016 I had paid a standing order to the managing co and checked the CCJ which then appeared that in 2016 they had reflected a payment (I think) but the amount was lower (£50) than it should have been i.e. it was wrong. The Managing Co's solicitor was not too pleased and started to talk about additional costs. I haven't heard from him since around 2 weeks ago and was discussing a settlement.

So with more time on my hands now, I got reading the lease in more detail I then paid the managing company £450 (ground rent per the lease) and told them it was for 3 years of ground rent only and I was disputing all charges. I still don't think that the 2016 rent is resolved but will pay that when I get the details. I have also asked the solicitor for backing to this but as expected he's ignoring me. I escalated my concerns to the managing company's MD and threatened to go to TPO about his company's and his managing agents behaviour unless they got back to me promptly. His assistant came back to me and told me they were nothing to do with the highly litigious solicitor. I wrote back and sent a letter where the solicitor states the managing co instructed him. I then threatened to take this to my local MP if they didn't respond with the paperwork etc. as the leasehold reform is a hot topic in parliament. I have also raised a complaint about the managing agent's solicitor with the SRA about this as he has applied a massive amount of costs to a small amount of ground rent outstanding and has potentially lied about serving a S146 notice on me to my bank.

My lease states in respect of costs:

1. To pay all costs charges and expenses (including legal costs and charges payable to a surveyor) which may be incurred by the freeholder in or in contemplation of any application to the freeholder for any consent pursuant to the covenants herein contained and of any steps or proceedings or the service of any notice under section 146 or 147 of the property law act 1925 including the reasonable costs charges and expenses aforesaid of and incidental to the inspection of the demised premises the drawing up of schedules of dilapidation and notices and any inspection to certain whether any notice has been complied with and such costs charges and expenses shall be paid whether or not any right of re-entry of forfeiture has been waived by the Freeholder or avoided otherwise than by relief granted by the court.

2. To pay the charges and expenses (including any Value added tax) reasonably made and incurred by any agents employed by the freeholder in collecting the reserved rents in respect of the property and in accounting to the freeholder for them payment to be made at the time of each payment of rent or on a subsequent demand.

My questions are please:

- based on the above what are the chances of me getting a set aside judgement, should I press on or should I just pay the outstanding judgement amount as "settlement" ?
- should I incrementally provide additional information to the courts and other side or just provide it all in one package a week or so before the hearing?
- in my court case should I just focus on the non service of notices as a defence (quoting the relevant statute) or should I also bring into the discussion about them providing me with no substantiation of costs and me paying the 2016 ground rent?
- In the set aside hearing can I mention anything about the £2,000 additional costs that the freeholders solicitor is trying to extort from me/my bank in the defence statement or not relevant?
- Will the court consider if costs charged are disproportionate and can the freeholder's solicitor charge additional legal fees for a CCJ that's already been decided?
- if I win the set aside will that mean that I can dispute all charges that relate to the late payment of ground rent i.e. all of the late fees and legal expenses
- if I pay the judgement above is that the end of it as the managing agent's solicitor has demanded payment for costs incurred other than the CCJ i.e. the £2,000 or can he come back to me for his costs although he hasn't invoiced anything or got a judgement etc.
- Can I apply to the First Tier Tribunal and who do I have to make a complaint against is it the freeholder or the freeholder's managing agent or both?

Any advice gladly received please.

Cheers
JP

[JP3333]

Hi Everyone,
Sorry can anyone help with any of the above please?
Thanks!

[MIKE770]

Peridot des8 R0b

[jaguarsuk]

- based on the above what are the chances of me getting a set aside judgement, should I press on or should I just pay the outstanding judgement amount as "settlement" ?

CPR is clear that service is to be the last known place of abode or business, service to your bankers is deficient and consequently you should be entitled to set aside pursuant to CPR 13.3.

- should I incrementally provide additional information to the courts and other side or just provide it all in one package a week or so before the hearing?

The only thing you need to provide to the court is a Witness Statement in support of your application detailing your address, exhibiting any proof you have you informed the claimant and requesting set aside plus costs of the application awarded to you. You will defend the claim and provide evidence of your defence separately as directed by the court if successful in set aside.

- in my court case should I just focus on the non service of notices as a defence (quoting the relevant statute) or should I also bring into the discussion about them providing me with no substantiation of costs and me paying the 2016 ground rent?

This hearing is simply to determine set aside of the judgement against you, a defence of any sort will come at a later stage dependant on directions of the court and the details of the Particulars of Claim.

- In the set aside hearing can I mention anything about the £2,000 additional costs that the freeholders solicitor is trying to extort from me/my bank in the defence statement or not relevant?

No, you are not going to hearing to argue a defence to the claim, your hearing is simply to obtain set aside.

- Will the court consider if costs charged are disproportionate and can the freeholder's solicitor charge additional legal fees for a CCJ that's already been decided?

There are no costs recoverable in the Small Claims Track other than court fees and interest, unless a party conducts themselves unreasonably. The solicitors costs will not be recoverable by them if they win as long as you play by the rules.

- if I win the set aside will that mean that I can dispute all charges that relate to the late payment of ground rent i.e. all of the late fees and legal expenses

If sucessful the court will order directions for you to file a defence, you will then be able from the Particulars of claim present a defence to the allegations.

- if I pay the judgement above is that the end of it as the managing agent's solicitor has demanded payment for costs incurred other than the CCJ i.e. the £2,000 or can he come back to me for his costs although he hasn't invoiced anything or got a judgement etc.

If you were to pay the CCJ it would be settled and remain on your credit file for six years from the date of the judgement. The solicitor cannot claim his costs from you in addition to the CCJ without attempting a small claim, but he would have no Cause of Action to file one.

- Can I apply to the First Tier Tribunal and who do I have to make a complaint against is it the freeholder or the freeholder's managing agent or both?

I would suggest the Property Management Redress Scheme might be your first port of call: https://www.lease-advice.org/article...-need-to-know/