Solicitor breaches agreement

I hope that someone can help. We were being sued by a third party. They had obtained a consent order sometime ago through the court, it was agreed that the debt would be paid by instalments over a period of time.
Some payments were subsequently made but due to illness this fell in arrear and after a while, when no further payments had been made the Solicitors wrote enquiring as to the situation. Aster having submitted to them medical evidence they suggested one of two options either to agree future proposals or for them to receive consent to a legal charge over the property. At that point they stated that if they did not hear from us they would obtain judgement through the court. We subsequently told them that the legal charge option should be used and that they should arrange for a statement of account to be forwarded ASAP.

It went very quiet for about a month and then we received the statement of account directly from their client. A short while after that we were horrified to receive in the post the courts notication that Judgement had been obtained for both of us.

In short after having spoken to the Solicitors following this it took several phone calls and patience when they eventually found out file and said that they could not understand why our letter afirming to the legal charge had been over looked. It was agreed during that telephone conversation that they would arrange for the Judgements to be withdrawn and the papers were being reffered to a colleague for the preparation of a legal charge.

We subsequently wrote to the Solicitors referring them to the telephone conversation and we told them that not only did we receive an incorrect statement but that it was in order for them to prepare a legal charge once that we received their confirmation that the Judgements had been withdrawn. Subsequenly, the solicitors wrote saying that there was little or no point in proceeding with a legal charge now that Judgement had been obtained. They said that the legal charge can only be obtained with our consent and this will not happen as their client is not agreeable to bear the cost involved or withdraw the judgements whilst the debt remains outstanding. They continue to say that they would now proceed to enforce their clients Judgements with a charging order against the property which is a different process but the outcome is the same.

We subsequently wrote setting out all the facts, explaining that they were incorrect in how they dealt with this letter and we explained it as a history of events ovber the recent months. We told them that if we did not receive a satisfactory remedy to this situation that we would 1) refer this matter to the Law Socity as a complaint 2) enforce a claim through their Professional Indemnity Policy due to their negligence and that 3) we would write to the court placing this letter and recent previous correspondence on court record so that the court is aware of the situation and we allowed them until today to respond.

They have responded to day and informed us through their complaints partner that they are investigating the matter and will revert to us by Nov 14th and that during this time they will not proceed with any action.

What further options are open to us and should we decide to claim under their Professional Indemnity Insurance is there a set letter we can use or indeed how can we deal with all of this in view of their breaches.

Any help or advice would be gratefully received.

Ds

[Nattie]

Re: Solicitor breaches agreement

Tuttsi, I do not know the answer but I hope cet or cel will be here soon or someone who can help to advise.

[TUTTSI]

Re: Solicitor breaches agreement

Thanks Nattie
Dsxx

[Celestine]

Re: Solicitor breaches agreement

Tuttsi....

Can you clarify for me the financial impediment caused to you by the difference between them obtaining a charging order as opposed to the legal charge.

I just need to understand the financial impact caused by their mistake.

[TUTTSI]

Re: Solicitor breaches agreement

Because the Solicitors obtained Judgement in each of our cases and went against our prior agreement to proceed with a legal charge instead, this has prejudiced our situation because the judgement scores against our credit files and will make it difficult to obtain credit in future.

I do not know which is worse by having a legal charge or a charging order, but I guess that the charging order is worse as it may carry more weaight in court as it is going hand in hand with the judgement.

Thanks
DS

[Celestine]

Re: Solicitor breaches agreement

Ok...understood now....let me have a ponder on best way forward.

The moment you get the final response from them on the 14th, can you scan it and let me see please?

I'll check out the avenues of complaint available.

[Guest]

Re: Solicitor breaches agreement

You seem to have a fairly good grasp of the options open to you in relation to following up the complaint against the solicitor's firm and Celestine will assist you with that and I would urge you to continue.

Regarding the matter of the judgment, you should apply without delay to have the judgments set aside. You should obtain an N244 Application Notice form from the Court (or download one from the HMCS website) and you will need to support your application with either an Affidavit or a Statement with details of what has occurred in your situation.

There are certain cases where default judgment may not be entered at all. Therefore it may help if you tell us why the debt exists and what it was for as it may fall under this area of CPR. Furthermore, CPR allow two methods for Claimants to enter a default judgment and a judgment obtained in error would be irregular and capable of being set aside as of right under CPR 13.2 (Intense Investments Ltd v Development Ventures Ltd [2005])

It appears that you were surprised that the solicitors filed for judgment in this way, are you certain that you did not receive any details of their intention to file for judgment, aside from when they informed you that failure to respond would lead to them filing for judgment?

However, this course of action is not without difficulty as if it is proved (such as by a certificate of service) that proceedings have been served by one of the methods prescribed by the CPR, service is deemed to take effect on the date laid down by CPR 6.7 and evidence to prove the contrary is not admissible (Anderton v Clwyd County Council [2002]). Where a default judgment has been entered after the expiry of 14 days from the deemed date of service in a case where the Defendant did not in fact receive the proceedings, setting aside is subject to the Court’s discretion rather than as of right (Godwin v Swindon Borough Council [2001]). In addition, in Akram v Adam [2004] the Court of Appeal looked at the position of a Defendant who says that he had no notice of the proceedings at all until after he heard of the default judgment. The Court dismissed the contention that a Defendant in this situation should be entitled to have the judgment set aside as of right on the grounds that he had received no notification of the proceedings and was therefore a stranger to them. Further, the Court confirmed that a judgment entered on a claim served in accordance with the rules, but of which the Defendant had no notice, has not been entered wrongly and the Defendant can have it set aside only on the grounds specified in CPR 13.3(1).

Essentially in considering whether to set aside or vary a judgment entered under CPR part 12, the matters to which the Court must have regard will include whether you made an application to set aside promptly and whether or not your defence has reasonable prospect of success and whether you may rely on non-service as ‘some other good reason’ for setting aside the judgment as it is not enough to show a merely arguable defence.

You had offered the Claimant a payment schedule outlined in a consent order which you had, for whatever reason, failed to adhere too. Does the consent order provide that all further proceedings be stayed upon the terms set out in the consent order and either party be permitted to apply to the Court to enforce the terms upon which this case has been stayed or to claim for breach of them without the need to bring a new claim?

A problem may arise in relation to your application to set aside if you had already agreed, by way of a consent order, to the above and should your application to set aside fail then you may be liable for costs thrown away, as such an application will require a hearing to determine the set aside and given that the Claimant's solicitors have confirmed that their client will not bear the costs of set aside themselves they may well apply for costs.

It might help if you not only provide us with details of the original debt, but also the consent order, providing that you are not subject to confidentiality and of course you must also remove all the personal and claimant details.

Once we have seen this, we will be in a better position to advise further.

[TUTTSI]

Re: Solicitor breaches agreement

Thanks Cetelco

I am scanning correspondence to you by PM which also includes the original consent order. The consent order was granted a few years ago and since then only a few payments were made because following this my husband had lengthy periods of being unwell which was accentuated this summer due to eye problems which have not yet fully resolved and which involved him in two opperations. The Solicitors re-visited the payment situation at the height when my husband was undergoing surgery and I wrote at that time advising them of his problem. The correspondence that I emailed to you is a build of the recent events which flows through in the correspondence. The recent history and the nature of the complaint is summed up in our recent letter dated 4th November which I am also enclosing for you. In my letter of 20th August, I did ask the Solicitors also to arrange to have sent to me an up todate statement of account. Soon after 18th September, I received a statement directly from their client which appeared to be incorrect and which I brought to the notice of the Solicitors. The statement is the first statement that has been received for some considerable time and this is a little more than just coincidence for it to have turned up unprompted rather than request it, and so you will see logically it followed my request on 20th August in that letter. Therefore the letter of 20th august where we agreed for the Solicitors to proceed by way of arranging a Legal Charge, would have been received by them soon after. Indeed from the telephone conversation which my husband had with a member of their staff, they subsequently found the file that was missing and the letter of 20th August and they could not understand why the letter had not received their attention for arranging a Legal Charge. By their negligence or oversight they proceeded with Judgement on 1st October and the first we knew about this was a few days later when we started speaking to the Solicitors to enquire as to why they had not actioned our request to agree to the legal charge.

I hope that this gives you a general insight into what actually happened as it appears that by the actions which the Solicitors incorrectly took for obtaining Judgment has prejudiced our financial standing.

DS