Court Claim via the Ombudsman

[dave heatherill]

Re: Court Claim via the Ombudsman

Hi......
Do you think I should proceed through a solicitor, or do you think that the procedure is simple enough for a layman like myself to process the correct details and paperwork?

[Amethyst]

Re: Court Claim via the Ombudsman

Well, the enforcement will be against the same name as the award from the ombudsman. Once you have that you wait 14 days and then can instruct bailiffs etc. The forms are straightforward enough - You might need a solicitors advice to double check exactly where you can send bailiffs to for enforcement with a defunct partnership though as I'm unsure what 'property' means in the CPR. ( ref this bit - 6A.1 A judgment or order made against a partnership may be enforced against any property of the partnership within the jurisdiction. )

[dave heatherill]

Re: Court Claim via the Ombudsman

Hi...Amethyst......
Just looking at form N322A...it all looks fairly clear.
But ref... section 2 Respondent details... it states enter the name and address of the person (company/firm) you are claiming the money from, this should be the same as the Ombudsman Decision.
The decision only quotes the Companys name which now does not exist. Should the main Partners name and address be submitted? or will it get rejected? Thanks again

[Amethyst]

Re: Court Claim via the Ombudsman

It does need to be the same as the name on the award, so the partnership. Partnerships are a bit of a special case in that their liabilities do not die with the ''company'', so although they are no longer operating in that form, nor have FCA authorisation anymore it is open to you to enforce against either/both of the partners. I think you might need to get formal advice on that bit as the address they had was a mailing address really ( lots of firms are registered there) The FOS decision doesn't give an address so you could legitimately put one of the partners addresses on the form.

It does look like at least one of the partners owns property, but whether that will mean you get your money is another matter. They can argue through court and you could end up with a charging order as security and £10 a month, but that is, I suppose better than nothing.

[dave heatherill]

Re: Court Claim via the Ombudsman

Hello Amethyst,
Thanks for your comments again, and telling me the harsh realities that could result ( £10.00 a month)
I dont know if it makes any difference but he IFA bought his house in 2003 which by now he might own outright, but according to the IFA web site he is still operating his business from this address.
It looks kike the best bet is to persue him first.
The partners originally did trade from an a local address till 2005 when they split up and the tax consultant till 2009 but it has now being used by another tax consultant company.
It looks like I will have to take this up on my own, after the information you have given me, the first time I have done anything like this, enquiries to solicitors are quoting me £250.00 per hour!!
The warrent of control is there a form reference for this?
Thanks again for your help

[dave heatherill]

Re: Court Claim via the Ombudsman

HI Amethyst,
Dont know if you have seen my last post regarding the ref for the Warrant, or the inof on the IFA?

[Amethyst]

Re: Court Claim via the Ombudsman

Sorry Dave, missed your post yesterday.

If he is operating his business from that address, then he is acting unauthorised and the FCA would like to know. However it is more likely that the IFA website is just not updated so I'd treble check matters before going down that route.

£250 an hour is pretty normal for solicitors but soon eats away at anything you could get. Your first step is to get that FOS award into an enforceable court judgment.

Then the warrant of control - N323 ( yes http://hmctsformfinder.justice.gov.u...t_forms_id=555 - check through the instructions and court fee info is on the EX50 http://hmctsformfinder.justice.gov.u...eaflets_id=264 )

So far as I am aware you can enforce direct against either partner as individuals once you have the order from the court.

[Amethyst]

Re: Court Claim via the Ombudsman

Current status on FCA register

Status: Inactive
(Reference number RAL00001)

An individual (and some firms) that was previously approved to perform certain tasks in a regulated firm. These individuals and firms would have been described as 'approved persons' and the tasks as 'controlled functions'.

His last active authorisation ended in Oct 2011.

https://register.fca.org.uk/ShPo_HomePage - have a nosey.

[dave heatherill]

Re: Court Claim via the Ombudsman

HI.. Amethyst...... Thanks for that ..

Thats him ref 554665 and authorised and I am sure he is trading from that address as a IFA

[dave heatherill]

Re: Court Claim via the Ombudsman

Hello Amethyst,
I hope you dont mind me contacting you again.
I am proceeding my case as discussed, I am just waitting for confirmation from the OmbudsmaN what the applicable interest rate on my award is, since my statement on Sept 10th. But the Ombudsman operates at there own pace.
Unless you know the rate?
Again I hope you dont mind ,if I did contact a local solicitor regarding my case by E-Mail on the 9th of October, and just had his reply, I have sent you a copy, just wondered if you could comment regarding what he says about part 8 Civil procedure rules.
And is he basically offering to do, what I am going to do at £385.00per hour plus Vat ( at possibly 10 hours work?)
Thanks again Amethyst

[Amethyst]

Re: Court Claim via the Ombudsman

Hi Dave, I have just replied to your email, before I'd read this post....

Applicable interest rate will more than likely be statutory 8% simple.

Your solicitor wants to make a part 8 claim before going to enforcement and expects it to take 10 hours at minimum £150 an hour if he uses the paralegal, or 30% of the award if/when payment is received from the partners. I think that is excessive and have replied to you regarding pointing out the FOS award is enforceable following the N322a application. Personally I think it is worth the £40 to do the N322a yourself and if it does run into any issues, then engage a solicitor - or even to assist with enforcement.

FSMA schedule 17 http://www.legislation.gov.uk/ukpga/2000/8/schedule/17

Enforcement of money awards

16A money award, including interest, which has been registered in accordance with scheme rules may—

(a)if a county court so orders in England and Wales, be recovered by execution issued from the county court (or otherwise) as if it were payable under an order of that court;

(b)be enforced in Northern Ireland as a money judgment under the M2Judgments Enforcement (Northern Ireland) Order 1981;

(c)be enforced in Scotland by the sheriff, as if it were a judgment or order of the sheriff and whether or not the sheriff could himself have granted such judgment or order.

[dave heatherill]

Re: Court Claim via the Ombudsman

HI Amethyst,
As you know all went well with my N322 Order for recovery of Award, which was awarded very quickly.
Its now over two weeks since this was sent to me, and now I believe its time to apply for the Request for Warrent of control (N323)
Do I just put the companies name as per my Ombudsmans award, and the IFA guys address on it, will that be OK.
Or do I now need some legal advice? ......
Some one in a discussion said I could some how apply to the court to get the companys name altered to the single IFA guy ....does that sound correct?.... or have I misunderstood what they have said.
Thanks for your help again

[Amethyst]

Re: Court Claim via the Ombudsman

Yes indeed you can apply for the warrant of control now. It might be worth a half hours advice to make sure you get this bit right as I haven't had much experience with enforcement.

As the company was just a partnership and not a ltd company or anything then I believe the warrant should be sought at the 'company' name ( which was just the two partners surnames) and the partners address ( as they are no longer at the original address) The judgment order is against the partnership, not an address, so either of the partners should be fine in my view.

Looking at the CPR (below) does the FOS award name the partners of the business or receive anything back at all from the partners during their investigation into your complaint? ( as that is classed as the original judgment)

Enforcing a judgment or order against a partnership

6A.1 A judgment or order made against a partnership may be enforced against any property of the partnership within the jurisdiction.

6A.2 Subject to paragraph 6A.3, a judgment or order made against a partnership may be enforced against any person who is not a limited partner and who –

(1) acknowledged service of the claim form as a partner;

(2) having been served as a partner with the claim form, failed to acknowledge service of it;

(3) admitted in his statement of case that he is or was a partner at a material time; or

(4) was found by the court to have been a partner at a material time.

I think 4 on that is enough. I think you'll need evidence of the names of the partners - the FCA licence info should be plenty evidence for that.

[dave heatherill]

Re: Court Claim via the Ombudsman

Hi ...Just sent you an E-Mail with attachments with copy letter from the F O S to the IFA and the IFA guys reply.
Hope you have time to read them
Regards

[Amethyst]

Re: Court Claim via the Ombudsman

In that case I don't think you would have any issues at all enforcing against the gentleman in the letters. I do like the ombudsman's response to him