Without notice Judgement Order

[Dookist]

Hello… I am new on here and finding it difficult to navigate… is this the right place to ask about a legal issue, please?

[Kati]

Re: Without notice Judgement Order

Post away [MENTION=61729]Dookist[/MENTION] ... I'll move your thread if it would get more advice (or seen more) elsewhere :tinysmile_twink_t2:

Oh .... Welcome to LB xx

[Dookist]

Re: Without notice Judgement Order

Hello…please bear with me as I am new to the forum and a technophobe to boot… I seem to have posted a reply to my own thread… but if anyone could move this post to where it will be seen, I would appreciated it, please.

Here goes… deep breath….

My problems started a few years ago when I was involved with a neighbour over a land dispute.

To cut a very long story short (ish), the small strip of land formed part of my garden and was given to me 12 years ago by a previous landowner, who sadly met with a fatal accident just before legal transfer took place.

However having occupied the land for more than 10 years, I made an application to Land Registry in order to register it in my name.

But the new landowner, a neighbour, objected to my application, (despite never having set foot on it), so the matter went to court.

On the day of the trial, the audio loop I had requested was not working at all, (I think it was the wrong sort) but the Judge refused to adjourn, so as a Litigant in Person, who was also very deaf, I tried to participate as best I could.

It was difficult, and I missed a lot of the witness statements, etc., and only on receiving a court transcript after the hearing, did I understand what was said.

So when it came to being cross examined, several hours into the first day of the trial, I became confused with the line of questioning. I became stressed and was having heart palpitations (which I take medicine for) and I panicked and decided to withdraw from the trial, and my neighbour was awarded his very substantial legal costs.

You will probably say that I did not have a fair hearing and I would agree, but there is nothing I can do about it.

I tried immediately after the trial to set aside, after finding that there had been several very serious, if not fatal procedural errors, however, the Judge was having none of it, (unsurprisingly, as I had accused him of bias) and barring going to the Court of Appeal, (which I couldn't afford to do at that time), I am stuck with this situation.

I knew I would have to sell my home in order to pay the costs, so we put our house on the market in January 2014 and secured a buyer in March.

Meanwhile, my neighbour's solicitors had made an application for an Interim Charging Order and a hearing was set for some months ahead, in July. (This was to allow my husband whom was contracted to work abroad to attend).

However, as soon as we were about to exchange contracts with the purchaser, in June, I had a call from my estate agent, saying that our buyer had pulled out due to being threatened by my neighbour… he had apparently told them that my septic tank leaked onto his land (untrue) and he would pursue them for damages if they went ahead with the purchase.

I have all the evidence of what was said, so intended to bring a counterclaim at the hearing for the final Changing Order because I was now left with no way of paying the debt before the hearing.

I sent a Letter before Claim to the neighbour, telling him I intended to make a counterclaim relating to tort of unlawful interference with a contract and I made the application to the court also and this was enough to lead to an adjournment of the hearing for the Final Charging Order.

Unfortunately, I made the fatal mistake of not having the matter referred to a higher court. I only found out at the hearing that my claim could not be adjudicated on at County Court level due to the amount. (375k), so the Charge against my property by way of a Form K restriction on our house, was made final on November 3rd 2014.

Apologies for the length of this… but sometimes a little background to the case helps…

The following is the part I need help with, please;

Having secured the Final Charging Order on 4th November, the neighbour's solicitor then made a without notice application to vary the original Judgement Order on 4th December, resulting in a Judgement Order dated 8th December.

Why? Any solicitor worth his salt would be fully aware of the standard text of a form K restriction and would have had plenty of time to alter the text to suit before the Judgement was made final.

The application deliberately sought to exclude me, stating;

This application to be considered by the court without notice of it to any other party on the basis that the overriding objective is best furthered by doing so. If the other party became aware of this application there is a substantial risk that even the "apparent" security offered by the charging order referred to would be lost.

Why did the court agree to this?
This was served on me by normal post on 6th January… too late to appeal.

On the application, they stated that the standard text of a form K Land Registry restriction did not provide enough security, so applied for the text to be modified to give their client a better chance if recovering the debt, in effect changing a standard restriction, in which notification to the creditor is only necessary after the sale of the property, to a situation where I must now notify him two weeks before transfer.

I believe this to be unlawful as it does not comply with CPR r. 3.1 (7) due to the fact that a sealed (perfected) Judgement Order can only be varied or revoked if (a) There has been a material change of circumstances since the order was made, and (b) The facts on which the original decision was made were (innocently or otherwise) misstated.

And even then, surely a variation of an order must be made via the correct appeals procedure?

Please, if anyone can help me with my application to set this aside, I would be so grateful.

Dookist.

[Dookist]

Re: Without notice Judgement Order

Hello again…

I just came across this on another site… it would appear the co-mortgagee would need to be informed of the application, too as he is affected by the new Judgement Order… Can anyone comment on this, please?

I have had nothing from Land registry about the new non standard text for Form K Restriction which has been ordered...

Cripes...it's a minefield!!

Re: Completion of house sale with restrictions, solicitors saying debts need to be settled

In the case of jointly owned property, if only 1 of the owners owes a debt, only a restriction can be entered .

This is a K restriction which has specific wording.


Of course the creditor can ask the LR to use different wording so to stop sale without payment,
but the LR is not likely to agree due to the rights of the other co owner.


What usually happens is the purchasers Sol will tell the LR that a disposition has taken place and the creditor has been notified.
The LR will not insist that the creditors permission is needed.

Unfortunately many solicitors don't know this.

[Dookist]

Re: Without notice Judgement Order

I have no idea why certain words have been highlighted. Dookist.

[Kati]

Re: Without notice Judgement Order

Hi again [MENTION=61729]Dookist[/MENTION] ... I'm sure you'll get lots of help and advice from our knowledgeable Beagles soon :tinysmile_twink_t2:

K xx

[Dookist]

Re: Without notice Judgement Order

Apparently, the Judgement Creditor needs to request permission to vary the original Judgement (CPR pt 52) and that as he did not do so within the 4 week time limit, he would have lost that right to appeal as he would have been out of time.

So he would then have needed to make an appeal for relief of sanctions under CPR r. 3.9, and once granted that relief he must then apply under CPR r. 52.6 to vary the time limit to file his appeal notice.

None of these procedures were followed and my right to a fair hearing under art. 6 ECHR has been violated...

[Don Quixote]

Re: Without notice Judgement Order

Quick query Dookist – did the judgment show who took the application hearing? Was it the same judge?

[Dookist]

Re: Without notice Judgement Order

Hello Don Quixote…. yes, I believe it was the same judge. Dookist

[Dookist]

Re: Without notice Judgement Order

Ok… I am starting to get my head around it at last…but I don't see why the court didn't pick up on any of this…

The Original Judgement Order was on 03-11-14. (Form K Restriction)

If creditor was unsatisfied with it he should have filed an appeal within 21 days of that order pursuant to CPR Pt 52 Appeals to seek permission from the Appeal Court to vary the terms of the original order.

Creditor made a (without notice) application to vary/modify on 04-12-14 but was out of time.

In spite of this, another Judgement Order was made on 08-12-14 but with a modifed, non standard text which appears to be a 14 day caution, even though Land registry no longer use cautions following changes to the rules in 2003.

Correct procedure was not followed.


As the creditor was out of time, he should have made an application pursuant to CPR r 3.8 for relief from sanctions under CPR r. 9. He must then be granted that relief and then must apply under CPR r 52.6 to vary the time limit to file his appeal notice and be granted an extension of that time limit to appeal.

Because none of these procedures was followed and because I was not notified, my right to a fair hearing under article 6 ECHR has been violated to put my case against the application dated 04-12-14.

What should I do now, though?