Pre-action costs

[Hagalout]

Hi, hope its ok to start a new thread in the hope of getting some advice with my ongoing problem.

To briefly some up, I have had a vexatious caveator who has actually applied three different caveats in different family names, two of which are permanent, i am the only beneficiary to my mothers estate but this man has steadfastly refused to budge, even stooping to lying about his relationship to my mother to get the caveats made permanent. My solicitor finally got round to threatening court proceedings, so the caveator reappointed his solicitor who presumably told him that the caveat should be removed by mutual consent. She is adamant that I am not entitled to any Pre-action costs, leaving me £9000 pounds out of pocket. I believed that once the caveat was permanent and only removable by court or mutual consent that they couldnt get away with this. My solicitor says we need to speak to our Barrister again to find out exactly where I stand, the problem being the Barrister wants another £1500 pounds just to say whether I have a case or not. I really dont know which way to turn and really would appreciate any advice given, certainly if anyone has experience of anything similar, mutual consent etc.

Thank you

[efpom]

Are you an executor of the estate?

Not a good idea to generate new threads on same issue.

[Hagalout]

Thank you and sorry. Yes I am the Executor and sole beneficiary of my late mothers estate, the reason why I started a new thread is because the original post seems to keep moving down the list without replies and I was just hoping to maybe get a bit of advice as I am receiving conflicting information from the solicitors. And i dont want to keep paying the money out for nothing. Also the question now is different from the original topic. What I really want to know is what is the reason for the mutual consent if people are still going to be allowed to get away with this type of behaviour.

[efpom]

It seems to me that you do not understand what "Mutual Consent" means. It's a deal - the content of the deal is irrelevant to the court, or the land registry.

Your prospective opponent has agreed to remove the caveats on condition that you do not claim your "pre action" costs. Pre action costs are claimable in proceedings, but are always at the court's discretion. But an award of costs has to be enforced, and if the person against that is to be enforced, at your cost has no money, then your order from the court is wastepaper.

You therefore have a decision to make - either you agree the other side,s proposal that you will not claim these costs from them, make so sort of counter offer, or you sue.

[Hagalout]

Thank you. My solicitor said to the other side that it is implicit that they know the caveat shouldnt be on there, ie simply vexatious, hence the offer to remove it. In which case we would require them to repay some of my costs. But they dont agree. The caveator will have money as he will receive his late mothers share from his grandfathers will( my mothers partner) our argument is that he knew he wassnt entitled to anything from my mothers will, yet he still filed an appearance in which he lied about his relationship to her. He then didnt serve the appearance upon us leading to further costs. Getting affadavits signed & witnessed, all this in addition to a caveat in his daughters name which she knew nothing about which is also permanent, thexappearance having been written word for word. Im almost certain that a court would find in my favour, I cant see how they wouldnt as long as pre action costs can be claimed. Thank you once again. At least I can think more positive now. And yes I do realise that mutual consent is exactly that. Obviously so the caveat couldnt just be left till the last minute then removed anyway.

[Hagalout]

Also the other solicitor has said outright that I am not entitled to the costs, which is why I was asking and you have given me the answer to that. So Thank you

[efpom]

Something else to consider - no deals aimed at settlement can be referred to in court EXCEPT in an application for costs after the trial of the issues finish.

[Hagalout]

In what way this affect the outcome

[Hagalout]

Would that be likely to be in my favour or theirs. Their argument is simply that they have offered to remove the caveat, and they request that their letters are sent with any application to the court. Regardless of whether there was any justification for it to be there in the first place

[efpom]

Your issue is the recovery of your pre action costs

In order to recover those you need to bring an action for the caveats to be removed. If the persons that put the caveats on do not oppose that you will get a default judgment, without a hearing of the issues, at which point you make your application for your costs. the court will set a hearing date for that. If the other side do not appear, then you get your costs.

If the other side oppose the removal of the caveat, there will be a hearing where they will have to justify why the caveat exists. If they do not succeed on that then you are entitled to apply for your costs.

Its not for your opponent to demand that you put any documents in.

My strong advice is that you ask about all of this to your solicitor. On that, I now bow out and wish you good luck.

http://equitysdarling.co.uk/2018/05/...what-do-we-do/

[Hagalout]

Thank you for your time & patience, Im not sure where I stand in that regard, my solicitor doesnt seem to sure either, hence the Barrister involvement. As I say they have filled in the consent forms and sent them to us expecting me to sign and carry on as if they have done nothing wrong. If I am not entitled to costs the caveator should still face the consequences of his actions, he has committed fraud, simple as that.

[Hagalout]

Just an update on proceedings here, summons have been served on the two people who have permanent caveats against my probate application and from whom I am trying to claim my totally unnecessary costs, Leeds probate registry have seemingly passed it onto Liverpool now, Liverpool have been in contact with my solicitor to inform him of this but also to advise him of another caveat recently entered in the name of someone who I have never even heard of, but clearly an associate of the original caveator who was responsible for all three previous caveats, all registered at his address albeit in different names. The latest caveat is at a different address in the same area. My solicitor says we need to warn this latest caveat in the first instance, a process which will incur further legal costs to myself which presumably is exactly what the original caveator intends yet again. Why can nothing be done by the Probate office when this man's agenda is clear for all to see? I have now paid out almost £15,000 in costs and yet it still goes on. I am at the end of my my tether now. It surely is against the law or certainly should be.

[Execben]

Hi, I really feel for you!

I am heading in this direction.. permanent caveat - we are now waiting for the court to issue a 'put-up/shut-up' + we have requested our costs approx £16K

We have a 2ish year caveat - no letter of claim - just ignoring us.

Initially we provided everything + more information then they requested.

I hope the court see that we have been overly giving/compliant and throw out this case (even if they bring forward a claim with some form of weak evidence)

System is seriously flawed

[Hagalout]

It most certainly is, this has been going on four and a half years now, 4 caveats, 2 permanent. He has committed fraud, entering caveats in other people's names and nobody wants to know. And they reduce the cost of a caveat to £3 from £20.

[Hagalout]

To be honest out of desperation I was hoping somebody on here might be able to give a phone number or an office or whatever where I can write or call to complain maybe or try to point out the injustice of the situation. At the end of the day Solicitors are a business and can't work for nothing but it should be able to be sorted at the probate office in cases as clear cut as this one is. I will never get my costs back how can it be right that it is allowed to happen