Intestacy

[Peridot]

Hi again,
Sorry I couldn't point you in the right direction either. I will keep looking and if I find anything will post on your thread. Good to have checked whether the Respondent has actually been receiving the info. I think I recall you had said everything was registered post but best to check. So surprise surprise, there is no excuse.
Will keep looking for you.

[CharlesB]

Hi Peridot,
I am still looking into this .....

Could the information I am looking for come under Practice Direction 81, Applications and Proceedings in Relation to Contempt of Court?
Further investigation mentions order for committal and an application notice, I then read section 81.16 .....
"The court may deal with the matter of its own initiative and give such directions as it thinks fit for the disposal of the matter".

I am so confused, as there doesn't seem to be a simple answer.

[Peridot]

Hi CharlesB,

Yep it is confusing. I believe your first step is to get a penal notice attached to the current order. It is not a case that the Court will bang up anyone for not complying with a first order, much as I'm sure you'd love to lock em up and throw away the key. Mind you that wouldn't help the estate administration

Whilst surfing about I did find CPR (Civil Procedure Rules) part 40 about applying for correction of an order. This can be done by letter under s40.12 (have a look at the practice direction PD 40B at 4.2 which seemed relevant) I don't know whether you would be expected to obtain a transcript of the hearing you attended in order to prove the costs were meant to be included.

Applications come under part 23 and Part 70 relates to enforcements which is the step you are at I would suggest. Obtaining a penal notice then allows for a committal application down the line should the executor continue not to co-operate in producing the accounts. Don't expect the Court to lock them up there are other penalties (usually costs related) and unless orders that can also be made. Unless x does such and such by whenever then Y will happen.

The executor can be removed altogether and another person or the Court put in their place. Again not something the Court is keen to do. It can be very much a poison chalice taking the administration on where there has been intermeddling (ie someone else has had dealings) and there is of course the cost to consider also.

As before I will keep looking and update should I glean any further info but as I suggested this may now be the time to get some face to face advice on this.

[CharlesB]

Hi Peridot,
I spoke to someone at the court.
I did say that I sent a letter to the Judge over 2 months ago in regarding my costs being awarded in court, but it wasn't mentioned in the Court Order. I didn't really get any answer as to why my letter did not get a response.

I also mentioned that the Respondent had failed to respond to the Court Order. I was then told to go through the process of submitting a summons and affidavit again, but this time mentioning a Penal Notice and my costs on the paperwork.

I am looking at my previous summons and affidavit, should I just revise these to now include the penal notice and that I am seeking costs?
Also, I take it, that this will be using the same court case number?

Penal Notice
Practice Direction 81 - Applications and Proceedings in relation to contempt of court.
https://www.justice.gov.uk/courts/pr...tempt-of-court Annex 3 Paragraphs 12(4) and 13.2(4)Form of penal notice to be included on committal applications

IMPORTANT NOTICE
The Court has power to send you to prison, to fine you or seize your assets if it finds that any of the allegations made against you are true and amount to a contempt of court. You must attend court on the date shown on the front of this form. It is in your own interest to do so. You should bring with you any witnesses and documents which you think will help you put your side of the case. If you consider the allegations are not true you must tell the court why. If it is established that they are true, you must tell the court of any good reason why they do not amount to a contempt of court, or, if they do, why you should not be punished. If you need advice, you should show this document at once to your solicitor or go to a Citizens’ Advice Bureau or similar organisation.

[Peridot]

Hi CharlesB,

You can amend the one you did previously but you also need to include the fact this is the 2nd summons you are seeking following the previous one of xxx 2019 which has not been complied with. You are now also seeking to attach a penal notice and seeking a costs order for both summons.

Fingers crossed there will be a response once they receive a penal notice attached to the summons! If you don't then receive a response it will be another application for committal.

[CharlesB]

Thank you for your prompt response Peridot.

[CharlesB]

Hi Peridot,
Hope you are keeping well.

This may sound like a daft question, but I am going to submit my 2nd Affidavit and Summons.
The Summons is now in 3 parts (1, to provide a true inventory and account of the estate, 2, a penal notice and 3, order for costs)
Now, should those all be on one document, or should I type these up as separate affidavits and get a solicitor to sign each one.

[Peridot]

Hi CharlesB,
They should be on the same application/summons as you want all three and they are all related after failure to deal with the last summons. The penal notice needs to be included in respect of the demand for account and your costs as part of this, not as stand alone summons.

[CharlesB]

Just an update .....
I was in court on Tuesday, surprise, surprise, the Respondent never turned up for the second hearing.
A penal notice and my costs were on my summons, and I am now awaiting the court paperwork.
I think the Judge also mentioned getting a process server to hand over the paperwork to the Respondent.
No doubt a 3rd hearing is on the cards.

[CharlesB]

Hi Peridot,
My Process Server has had no joy in serving the latest court order (with penal notice) on the Respondent.
I have been looking at serving the Court Order on a substitute / 3rd party (this being a close family member of the Respondent)
Do I need to submit a summons and Affidavit to the court requesting serving the papers on the substitute / 3rd party?
Will this also mean another trip to the court to get approval?
Many thanks