Claiming for Specific Performance in County Court - Help

[Muppet&Chaums]

Re: Claiming for Specific Performance in County Court - Help

Well that was anticlimactic.
The Judge was not going to hear the whole case today. Sad, I was prepared.

Well. Notwithstanding that

- he filed the defence in the wrong court
- he filed the defence in the wrong format
- he never sent the claimant a copy of the defence
- he ran out of time to amend and file his defence correctly
- his Registered Office does not accept post when nobody's there.

He did however file his defence PROMPTLY. This moved the judge, not to tears , but to allow his petition to have the judgement set aside. Promptness wins the day.
Maybe I shouldn't be surprised. Perhaps I suffer from a Fast Track mentality shoe-horned into a Small Claims Protocol World.

But the Judge did put the Specific Performance Claim in with my claim for monetary damages. They'll both be heard together.
Is that a good thing...and do I get my £280 Specific Performance Court Fee back again ? He's got to file his defence by Oct 20th...the case is Nov 3rd.

All will be revealed in October.







-

[stevemLS]

Re: Claiming for Specific Performance in County Court - Help

And the next chapter?

[Muppet&Chaums]

Re: Claiming for Specific Performance in County Court - Help

And the next chapter?

The next chapter.

Well I was in the Court (29/9) when the Judge said to the Defendant " Re file your Defence by 20th October, Hearing on the 3rd November ".
I copied this down into my notes. It seemed a little generous of the Judge to allow the Defendant 3 weeks to refile a defence which had already been prepared but miss-posted but i'm biased.

But when the Court Order came through on 9th October it said...

" File defence by the 3rd November " That was it.

1. No reference to what the Judge actually said in Court
2. I emailed the Court and said ' That's not what the Judge said; the Judge said ' file defence by 20th October, hearing on 3rd November '
3. The Court have ignored this.
4. When I phoned them ten days after the email (19/10) they said they were asking the Judge. Still no reply
5. Not sure whether to leave this or make an issue.
6. And the clock ticks away to the 3rd November ...still no copy of the defence.

The defendants game has always been to play for time. Dissipate assets.

On the bright side I got my £280 Court Fee for the Specific Performance claim returned.
I await a letter (promised) from the Court that made the errors in the first place with an explanation from the administrator.
I got the impression that the deputy court manager was not over enamoured with his minions.

[stevemLS]

Re: Claiming for Specific Performance in County Court - Help

It is normal for the parties to agree a draft order following a hearing and then submit it to the Judge for approval.

Obviously I can see why that wasn't done on this occasion, but it might be useful for you to bear that in mind for any future hearings, that way you can make sure that details like this are not overlooked.

With any luck, their failure to file a defence will operate to your advantage.

Is the hearing on 3rd November characterised as a further Directions Hearing or is it intended to be a Final Hearing?

Are you still in the small claims track? (I don't think you can be really with an application for SP)

[Muppet&Chaums]

Re: Claiming for Specific Performance in County Court - Help

Mystery to me....

" General Form of Judgement or Order

Upon Hearing the Claimant and Defendant in person -
IT IS ORDERED THAT
1. This Claim shall be consolidated with Claim number (SP). Claim number (£damages) shall be the lead Claim. All directions given to the lead Claim will apply to both Claims, unless otherwise stated.
2. The Judgement entered against the Defendant in the lead Claim be set aside.
3. The Defendant must file a defence in respect of both actions by 3rd November 2014.

Dated 29th September 2014. "

[stevemLS]

Re: Claiming for Specific Performance in County Court - Help

Right - that would make it seem to remain in the small claims track, given that it has not been reallocated - I can't quite see how it can be as a claim for SP cannot be dealt with on that track, although perhaps the DJ has attempted to get round that by specifying that the money claim is the "lead" claim.

I do wonder though whether that implies that the DJ is thinking that they don't rate the prospects of that claim - I think I mentioned before that SP as a remedy is generally only ordered where damages would not be an adequate remedy. Personally, I think you would be well advised to cost up the provision of the parking space and, as far as you can, the comms facilities. Although you have not pleaded damages as an alternative remedy you might be able to argue for that at any hearing and *should* be able to suggest it as an alternate in your Position Statement, if ordered to file one.

The position may change if the DJ reconsiders their Order as a consequence of your phone call.

Anyone else got any wiser thoughts?

The judge plainly has a different recollection to you of what they ordered(!) - however, what I would now expect to happen would be that they will file their Defence by 3rd November and the court will then issue further Directions for the disposal of the matter.

[Muppet&Chaums]

Re: Claiming for Specific Performance in County Court - Help

Thank you.

As we speak the developers are feverishly instating the parking space. They started yesterday. The cynic in me thinks this is to sell it to someone else. But, diggers, men and hardcore are all in evidence. I guess the Land Registry Title Deed supplied by the developers showing my missing parking space might have encouraged them before returning to Court.

On the subject of Specific Performance I am never going to be able to estimate the cost of the provision of digital services. You are talking about aerial erection on a boiler house and extensive groundworks with fibre cabling with modulation equipment for TV\Radio\Internet signals to some dozen houses. I cannot even imagine you could get a contractor to quote for the works without an expensive survey. Should I drop the claim so as not to prejudice my damages claim, it was part of the published Finish specification? They have provided digital services, in accordance with their Finish specification, the first 20+ houses and flats.

I still have to file with the Court my own builders working estimates for the damages\works that I am claiming. I had hoped the developer would agree to instate the works in accordance with his Finish specification at the end of a County Court summons, but apparently not. He'd rather represent himself and chance it in Court. I have photographs of other houses on the development where the developer has completed to his published Finish specification i.e. double oven, outside tap, composite work surfaces, garage power, etc.

So, if yet again, the Defendant fails to file his defence and provide me with a copy by close of business on Monday November 3rd 2014...what do I do then ?

I am stunned at how long this all takes, how convoluted the process is ( paper based ! in 2014) and all things considered how easy the system is for the defendant and how onerous for the claimant.

[Muppet&Chaums]

Re: Claiming for Specific Performance in County Court - Help

Oh Mystery of Mysteries

Why do I feel like a rat in a cage at the lab ? 13 months later...

So I received the defence, I filed a reply and my builders estimates for completing the items that the builder omitted to supply from the specification his hurry to grab my money.

Now I'm summoned to the County Court for an Allocation and Directions Hearing on January 5th 2015, no named Judge. It states ' This case may be released to another Judge, possibly at a different Court' .

So what does all this mean ? The judge is bored? The original judge is ill/retired? I need to be legally represented ? DJ has had second thoughts on combining a small claims case with that of specific performance ?

And a Happy Xmas to all our readers.

M&C