Claiming for Specific Performance in County Court - Help

[Muppet&Chaums]

In December 2013 I bought a brand new house on a development in Dorset. Many of the items in the Finish Specification were missing so I took the developer to Court in June 2014. The developer, aware that Dorset Trading Standards had taken an interest, declined to defend the MCOL claim for £7845; the items were all set out in detail in his sales literature. As I write I await the expiry of the 28 days grace period before I apply for a 3rd Party Debt Order.

My claim, against the developer, is for two sets of items with different remedies. I have succeeded in my judgement for items that were easy to assign a monetary value but that leaves other matters that I'd like to insitute a claim for specific performance as they involve the property.

These are namely -

1. My contract as evidenced by my Land Registry Title Deed shows ownership of a parking space near my house that has not been instated. This involves moving a 3 tonne stone boulder and performing the appropriate ground-works to let the space into the edge of a grassed traffic island on the development.
2. The Developer's sales literature makes much of the provision of communal digital cable services (TV, radio, internet) to each residence. These communal services have been instated for the apartments on the site but not the houses. I do not believe the developer has any intention of commissioning the underground infrastructure for these services for the houses.

I've never attempted a claim for Specific Performance before. I was proposing to issue Form N1 (or should I use CPR Part 8 ?) and file this is at my local County Court. Given today's eye watering level of Court Fees I'd like to keep costs down. I do not think the developer has a leg to stand on and I'd rather hoped that the thought of potential contempt of court proceedings would galvanise him into action.

Please advise whether my proposed route is a wise one together with any caveats. How do I claim back Court Filing Fees when my action is for Specific Performance ?


Many Thanks for reading.

M&C

[Amethyst]

Re: Claiming for Specific Performance in County Court - Help

Have you made a formal complaint directly with the developers regarding these issues (parking space and services) ? If so what was, if any, the response to that complaint?

[stevemLS]

Re: Claiming for Specific Performance in County Court - Help

You are supposed to make all claims arising out of a single set of facts in one claim.

Did you mention the items you now seek SP on in your money claim?

As Amethyst says, what has the response so far been?

Have you looked at the sales material carefully - they often include statements like "Specification subject to change", whilst I can see why they might get away with the cabling, the parking space is in my view a bit more problematic (for them).

[Muppet&Chaums]

Re: Claiming for Specific Performance in County Court - Help

Complaints were made in writing to the Developer and the Insurer after a site survey by my own Surveyor post house purchase.
A formal claim was instigated via the Premier Home Guarantee Scheme.
The Insurer disavows responsibility - they say they are only responsible for structural defects.
The Developer has their standard response to their own shortcomings.
Total silence.

[Muppet&Chaums]

Re: Claiming for Specific Performance in County Court - Help

You are supposed to make all claims arising out of a single set of facts in one claim.

Did you mention the items you now seek SP on in your money claim?

As Amethyst says, what has the response so far been?


Have you looked at the sales material carefully - they often include statements like "Specification subject to change", whilst I can see why they might get away with the cabling, the parking space is in my view a bit more problematic (for them).

Both the Developer and our house insurer (Premier Guarantee) have been sent full details of non-compliance to published specifications by my Surveyor. The insurer will not act as these are not structural defects.

The Developer has no qualification on the hard copy sales literature anywhere or on its website anywhere as to ' Subject to Change without Notice' etc. I have photographic evidence of compliance with their published finish specification in houses AFTER I purchased mine as well as before. (This would be so so easy if it was Sale of Goods Act).

Salford CCMCC are adamant they do not deal with non-monetary matters.
It seems insane to me that a single breach of contract claim has two separate protocols to follow.

Does Form N1 allow me to pursue a claim for Specific Performance on my house purchase ?

Dazed and Confused.

[wales01man]

Re: Claiming for Specific Performance in County Court - Help

Have you a CCj against them?are they paying up?

[Muppet&Chaums]

Re: Claiming for Specific Performance in County Court - Help

Have you a CCj against them?are they paying up?

I'm in Court on 29 September. I was just about to 3rd Part Debt Order the Developer when he lodged an N244 appeal.
You'll like this.
Whilst he managed to file his Acknowledgment of Service with the correct Court CCMCC, he for some unknown reason filed his defence with the local court.
The local court - they sent his papers up to Salford. Salford rejected them; wrong format. No one accepted return delivery at his office for 5 days. The PO sent the papers back to Salford.
He ran out of time to defend.
I applied for and got default judgement.
He's applied to set it aside.
I am gratified to see its on the Register of CCJs while he mucks me about.

I'll either be taking money from their bankers or seeking a charge on their land.

[Muppet&Chaums]

Re: Claiming for Specific Performance in County Court - Help

Apologies
I forgot to add SUBSCRIPTION.... & I assumed no one had replied.

[stevemLS]

Re: Claiming for Specific Performance in County Court - Help

To be fair to the other side, he probably acknowledged service online and followed up with the defence at his local court - I have seen that done several times. Not an excuse, but an explanation maybe.

The Practice Direction http://www.justice.gov.uk/courts/pro...pd_part07e#4.1 makes it clear that MCOL can be used only where the only remedy sought is a specified sum of money.

In those circumstances, a claim for specific performance would I imagine only be made in the traditional way through your local court.

You could, in my view, have claimed the cost of the works you now seek SP for along with the original sum you did claim, and then arranged to have the work done yourself - although I can see that this would be impractical at least in terms of the communal satellite thing.

However, as I said before, all elements of a claim arising out of a single set of facts should be dealt with in the proceedings, you cannot take multiple bites of the same cherry. It is not a case of two differing protocols applying to one claim, rather that you seem to have chosen the wrong one.

You could apply to amend your PoC but I wouldn't particularly rate your chances of getting permission at this stage. What do others think?

SP is an equitable remedy and is generally used only where there is some element of "uniqueness" which renders damages unsuitable, the type of thing like a contract for sale of land (because a piece of land is inherently unique).

[Muppet&Chaums]

Re: Claiming for Specific Performance in County Court - Help

To be fair to the other side, he probably acknowledged service online and followed up with the defence at his local court - I have seen that done several times. Not an excuse, but an explanation maybe.

The Practice Direction http://www.justice.gov.uk/courts/pro...pd_part07e#4.1 makes it clear that MCOL can be used only where the only remedy sought is a specified sum of money.

In those circumstances, a claim for specific performance would I imagine only be made in the traditional way through your local court.

You could, in my view, have claimed the cost of the works you now seek SP for along with the original sum you did claim, and then arranged to have the work done yourself - although I can see that this would be impractical at least in terms of the communal satellite thing.

However, as I said before, all elements of a claim arising out of a single set of facts should be dealt with in the proceedings, you cannot take multiple bites of the same cherry. It is not a case of two differing protocols applying to one claim, rather that you seem to have chosen the wrong one.

You could apply to amend your PoC but I wouldn't particularly rate your chances of getting permission at this stage. What do others think?

SP is an equitable remedy and is generally used only where there is some element of "uniqueness" which renders damages unsuitable, the type of thing like a contract for sale of land (because a piece of land is inherently unique).

My original claim was for both the damages, for the items missing from the house and the two items for specific performance ( roadworks and communal satellite installation). All on one set of papers - both claims. I did not use MCOL but wrote to CCMCC at Salford. I clearly stated on the form N1 and its covering letter to CCMCC at Salford that the claim was for both remedies, damages £ and specific performance. In the same letter I also asked CCMCC, Salford to transfer the case to my local Court as soon as practicable. CCMCC ignored the claim for specific performance and granted me judgement default of a defence for my monetary claim.

The case has now been transferred to my local court as the defendant has appealed against the default judgement. We go before the judge this coming Monday to discuss the appeal.

As I failed to get CCMCC to address the question of specific performance I resubmitted my claim last week, on Form N1, for exactly the same specific performance to my local court. I paid the additional fee £280. In the covering letter to the local Court I explained the default judgement already given, the pending appeal and asked the Court to collate both cases together as they both relate to exactly the same breach of contract.

When I rang the local Court to ensure they had received the papers I was informed they had and moreover that they had sent them to the CCMCC at Salford. They were unable to explain why they had done this as it was not a monetary claim.

I find dealing with the administration of justice much much more taxing than preparing my case against the snake charming defendant.

[stevemLS]

Re: Claiming for Specific Performance in County Court - Help

Court administration can be pretty appalling, particularly where it is something slightly unusual, which this is.

Why didn't you just issue it in your local court rather than sending it to Salford.

As far as I can work out, and this is new to me, you have fallen foul of Practice Direction 7C which - similar to MCOL - says that the production centre can only be used for claims which are only for a specified sum of money <£100k.

So, really, I think they should have rejected it when you sent it to them.

Can you scan up your N1 and covering letter, having deleted any identifiable information.

As you are an LiP you will be accorded a degree of latitude that a represented party wouldn't. As both you and the court seem to have erred, I think you should submit to the court on Monday that the court plainly did not adjudicate on both elements of the claim and that if the appeal is allowed (what are his grounds?) they should both proceed and that even if the appeal is dismissed the additional element requires the attention of the court.

As I have said to you before though, a claim for specific performance is unusual and the courts are circumspect about the situations that they consider appropriate for such an order. They would far rather order monetary compensation. Even if breach is established, an order for SP is an equitable remedy and so entirely at the discretion of the court.

[Muppet&Chaums]

Re: Claiming for Specific Performance in County Court - Help

Many thanks for your reply.

Here are my redacted .pdf scans in chronological order 1 to 8. These are the nub of the matter; there are other court papers which are compliance/procedural rather than substantive.
These scans cover 1-3 the original claim filed at CCMCC for both money damages and specific performance. Scan 4 is correspondence with the local court. Scans 5 & 6 are the (re)filing for specific performance at the local court after the default judgement. Scans 7 & 8 are the N244 where the defendant asks to overturn the default judgement and my written objections to this request for Monday 29th at the local court. Scanning and redacting in Adobe is testing.

M&C

[stevemLS]

Re: Claiming for Specific Performance in County Court - Help

Thanks Muppet (that somehpow sounds insulting!)

I think the court will now be thoroughly confused.

As before, I think you were wrong to issue through the bulk centre. You maybe did not know you could just have taken the N1 to your local court and had it issued there and then. Equally, however, the bulk centre should not have accepted it.

The claim plainly on its face contains a claim for specific performance and so the court should have dealt with it as such. I know I am now sounding like a stuck record but whether that was the right claim to make and whether the court will be prepared to make such an order is another matter.

However, you have the hearing on Monday and that is an opportunity for the judge to make sense of it. My worry is that the total value of the claim probably exceeds the small claims limit and so it is likely to be allocated to the Fast Track - which carries significant costs implications.

I don't think you should have issued the second claim given that the court had failed to address that element of the first claim - albeit perhaps having been issued in a procedurally defective manner - I don't quite know what to suggest about that though, the judge might even be prepared to let you withdraw that claim and even refund the issue fee. Ask him to.

Do you know whether both cases are listed on Monday? It would be ideal if they were in which case the judge could consolidate them, decide the application to set aside and then give case management directions.

Look at standard directions for both the small claims track and the fast track (google them + CPR) and have a typed list of Directions ready with you on Monday.

Your particulars of claim/statement of facts are a little unorthodox and I can see that the specific performance element is slightly buried in there. That does not alter the fact that you were clear on the face of the N1 that you were seeking both rememdies.

I can't quite believe the (lack of) quality of the application to set aside.

However, given that (in my view), you, the defendant and the court service have all made errors in dealing with the matter my best guess is that the judge will exercise his case management powers and say that the overriding objective suggests that he set aside the default judgement, return the parties to the position they should have been in when the claim was issued and effectively start again.

Best of luck on Monday - let us know how you go on.

[Muppet&Chaums]

Re: Claiming for Specific Performance in County Court - Help

Thanks Muppet (that somehpow sounds insulting!)

I think the court will now be thoroughly confused.

As before, I think you were wrong to issue through the bulk centre. You maybe did not know you could just have taken the N1 to your local court and had it issued there and then. Equally, however, the bulk centre should not have accepted it.

The claim plainly on its face contains a claim for specific performance and so the court should have dealt with it as such. I know I am now sounding like a stuck record but whether that was the right claim to make and whether the court will be prepared to make such an order is another matter.

However, you have the hearing on Monday and that is an opportunity for the judge to make sense of it. My worry is that the total value of the claim probably exceeds the small claims limit and so it is likely to be allocated to the Fast Track - which carries significant costs implications.

I don't think you should have issued the second claim given that the court had failed to address that element of the first claim - albeit perhaps having been issued in a procedurally defective manner - I don't quite know what to suggest about that though, the judge might even be prepared to let you withdraw that claim and even refund the issue fee. Ask him to.

Do you know whether both cases are listed on Monday? It would be ideal if they were in which case the judge could consolidate them, decide the application to set aside and then give case management directions.

Look at standard directions for both the small claims track and the fast track (google them + CPR) and have a typed list of Directions ready with you on Monday.

Your particulars of claim/statement of facts are a little unorthodox and I can see that the specific performance element is slightly buried in there. That does not alter the fact that you were clear on the face of the N1 that you were seeking both rememdies.

I can't quite believe the (lack of) quality of the application to set aside.

However, given that (in my view), you, the defendant and the court service have all made errors in dealing with the matter my best guess is that the judge will exercise his case management powers and say that the overriding objective suggests that he set aside the default judgement, return the parties to the position they should have been in when the claim was issued and effectively start again.

Best of luck on Monday - let us know how you go on.

Thanks for the advice. I will bone up on the Standard Directions for small & fast tracks and make a crib sheet.

Everything I read on the N1 guidance notes & internet said money claims - small track - must go the CCMCC\MCOL route; even if they are eventually to be dealt with by the local court. Local courts would not accept N1 money claims. Did I get this wrong ? Hence my original filings at CCMCC.

Two things are happening on Monday 29th. One is the defendant's appeal against the monetary default judgement. Yes, I was shocked at the quality of the defendant's N244 statement, I hope that plays to my advantage. I have to say, I'm sure Judges are only human and there must be days when they look at dishevelled, emotive, illogical, LiPs and wonder how to get rid of them as quickly as possible without making waves.

Secondly, the judge is looking at my separate claim for Specific Performance. You're going to laugh. As you are aware I filed at the Local Court my claim for specific performance; which is nigh on impossible to financially quantify on September 11th. The Local Court sent the papers to.....CCMCC in Salford. Why ? The cheque for the £280 has been banked and the papers returned to the local court to be placed before the Judge on Monday 29th. Not quite sure what to make of this. But oh how I wish the clerks at the Court would loose that affected boredom, 'why don't you just drop dead' tone of voice.

Yes, when dealing with the Courts I often feel like a Muppet.

[stevemLS]

Re: Claiming for Specific Performance in County Court - Help

Have to say I didn't know that use of MCOL/CCMCC was now mandatory?

I don't think you will gain any particular advantage by the crap application to set aside nor do I think you should particularly make anything of it. Errors on all sides so lets just move on and sort it out would be my stance.

I imagine the judge will be groaning inside when he reads the file!

I know exactly what you mean about the tone of voice sometimes adopted by the clerks, although I wouldn't have expressed it in quite such a witty way.

Best of luck on Monday, let us know how you get on.