Ruling by default

[Sams111]

Hi. I received a claim against me by default having not received the original claim. I deliberated about doing an application to set the judgement aside but in the end decided to just pay it as I am in the middle of a mortgage application and this is bad timing for me. I felt aggrieved but thought I would grin and bear it. However now the plaintiff’s lawyer is demanding a further £500 over and above the claim amount ( which already includes costs and interest). Do I have to pay this too, which was not in the original ruling amount? Should this not have already included costs? It has not yet been 30 days since the ruling, which I understand is my window to pay it. Also, not having employed the lawyer nor approved his rates, am I obliged to pay anything he demands post ruling now? What if he demanded £5000 not £500 would I still have to pay whatever price he retrospectively names?

[R0b]

You are only liable to what the order says you have to pay. If their lawyer is demanding a further £500 that isn't covered by the order, then they can't recover it, plain and simple.

Have you challenged the lawyer on this and what is his/her response? If indeed they are claiming something they are not entitled to then I would report that person to the SRA as a breach of the code of conduct which says you shouldn't take advantage of third parties - claiming for something that they aren't legally entitled to would be in breach of that code.

I'm sure if you reminded the lawyer of their duties as a solicitor then they will no doubt back down, or quietly go away and not respond. Do make sure you are correct in your understanding before going off on one, otherwise you are just going to look silly.

[Sams111]

Thank you for the prompt reply. The letter sent is entitled ‘notice pursuant to section 146 of the law of property act 1925’. It then states that “the landlord obtained a judgment against you for the sum of £xxx....

you are are required to remedy the breaches within a reasonable time by:

i- paying the rent arrears, service charges and costs in the sum of £xxxx
ii- paying the landlords reasonable compensation for the breaches
iii- paying the landlord’s solicitors costs of £500 within 14 days...”

The judgement against me was only to the value of item ‘i’. Given that I have not exceeded the 30 days to pay required in the judgement I would not have expected that there are other amounts I need to pay. Should any additional amounts they are seeking in respect of items ii and iii not have already been included in the original claim? Although I feel I had a good case in the event I’d had an opportunity to answer the original claim, it now feels they are taking advantage of this to add additional items on that they now want to claim for. Thanks!

[R0b]

So you could write back to the solicitors and say that the landlord obained judgment on the first item only and did not cover the second and third item. If the landlord didn't pursue these additional charges then that is entirely the landlord's fault, not yours. As such you only consider yourself to be liable to pay the amount stipulated by the order.

Ask them on what legal basis the landlord is entitled to recover compensation and payment of his/her solicitor fees following the judgment. You could add that unless there is a satisfactory answer, you consider these additional charges to be res judicata (that is a matter that has already been determined by the court) and that the solicitor's demand for such amounts is contrary to the SRA Code of Conduct and you are minded to report the solicitor to the SRA.

Outcome 11.1 requires the solicitor not to take advantage of third parties, especially those who are not legally represented. More specifically, IB 11.8 makes it clear that demanding sums of money that is not legally recoverable does not comply with the principles.

If you want to read the SRA reference you can find the link below.

https://www.sra.org.uk/solicitors/ha.../part5/rule11/

[Sams111]

Thanks so much. That’s really helpful

[Sams111]

If I may ask one more question about this. It may seem strange but I don’t actually have a breakdown of the amount I need to pay. This is partly because I did not receive the original claim and have lost earlier correspondence related to this, then did not receive a reply when I had emailed to have this resent.

I have emailed the plaintiff’s solicitor to ask for this but am also conscious of the 30 day time limit. I have given them until Thursday to forward this to me so that I can pay. If I do not receive this, I assume I will have to pay anyway in order to have my name removed from the register. Will there be a way to retrospectively get this information? Or is there anything I can do to obtain this prior without risking remaining on the register and hence my credit rating?

[R0b]

Call the court, you are entitled to a copy of it as the defendant though you may have to pay a fee of £10 and ask them to send it by email.

You can also ask the court how much the default judgment was for they should be able to tell you.

[Sams111]

rob thank you. You’ve been very helpful. Any chance you may be available for (paid) consultancy and possible representation? As a newbie on this forum not sure how this works ....thanks

[R0b]

I'm afraid I don't (and can't) do any consultancy or representation - you might want to contact pt2537 who may be able to assist you for a reasonable fee. Otherwise I suggest shopping around for a firm that offers a fixed price for something like this.

[Sams111]

Thank you. Really appreciate your help.

[Sams111]

Hi. Finally received this response. As part of this they state that they will serve notice at an address that they know to be occupied by tenants. Is the below right and fair? Seems that this won’t stop!

Legal fees are recoverable pursuant to clause 2(m) of your lease and you are liable to pay further legal costs of £480 as on the s.146 notice.

The lease provides that s.196 of the Law of Property Act 1925 applies to service of notices on you. This means that any notice will be validly served if served at Xxxxxxx

Demands for the second tranche of service charges as well as our legal fees will be served on you shortly.

I suggest you make arrangements for these to be delivered to you.

[Sams111]

Also not sure what the s142 notice is. Should this not have been included in the claim? Am I going to now get a third claim in relation to “reasonable compensation” for the plaintiff as threatened previously?

[R0b]

So was the lease forfeited under s.146 or not and are these charges before or after the forfeiture (if there was one)?

I have a feeling this is going to end up being a drip-feed thread which I'm probably not going to respond to if that's the case so I would suggest that you give us the full background, what happened, outcome, current state of play.

We can only assist you in so far as you give us the information. Lack of information = lack of help and possible consequences for yourself.

[Sams111]

Not trying to drip feed- was just trying to keep to relevant facts.

The issue relates to a management company set up for communal building costs with 4 shareholder directors representing each of the flat owners. I set this up myself when I was living in one of the flats so that costs may be split fairly. I no longer live there so now have tenants living in my flat. The dispute arose because there was a problem in the roof that the other did not agree to fix, causing damage through leaks to my top floor property. The dispute arose due to some of the other directors deciding to carry out cosmetic work while leaving the leaky roof unaddressed. It seems that they lawyered up and served me with the claim I did not receive. I decided to pay this as it was bad timing to have a bad credit rating for me and possible relocation. I thought that would be the end of the matter but then received a letter from the lawyer saying I had 14 days to pay this, plus their legal fees plus reasonable compensation. I asked them for the legal basis for this like you suggested and they finally responded as above. They have also stated that they will continue to serve notice notice on me at the address they know I don’t live at. I’m worried that I may miss another claim and find another default ruling but also confused as to whether or not they have a right to keep making ‘modular’ claims related to the same matter.

[R0b]

So the starting point is to look at the lease terms.

What does it say about service charges, legal fees, compensation, and serving notices?

I'm surprised the lawyer said that they will continue to serve notices to that address if they know you no longer live there. They seem to be suggesting that s.196 of the Law of Property Act 1925 has been incorporated into the lease in relation to notices.

S.196 sets out the rules on what constitutes a valid notice. In particular, 196(3) says:

"Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorised to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage, or, in case of a mining lease, is left for the lessee at the office or counting-house of the mine."

196(6) also says that these notices don't apply to court proceedings.

If the lawyer knows that you no longer live there, then any notice sent to that address thereafter would (in my view) be invalid notice. They have knowledge that you don't live at that address and it seems like the lawyer is trying to be awkward. Assuming you have given them clear notice you no longer live at the lease property, and they continue to serve notice I suspect they have been negligent to the landlord if it turns out the notice was invalid - but that's a matter between them and your landlord.

Anyway, I've found a Court of Appeal case that might help you on this - Arundel Corporation v Khohker

It's not a long judgment but the facts are this: Landlord address in the lease was X but later it changed their registered company address to Y, and informed the tenant's solicitor of this. Landlord served notice to increase rent and solicitor advised tenant to serve a counter notice to address X listed on the lease despite knowing of the address change.

Court of Appeal said the counter notice was not validly served since the solicitor had deemed knowledge that the landlord no longer resided at the address shown on the lease.

I'm not an a expert in property law so my information might be of limited value and it is probably sensible to at least get some advice on where you stand but if not, the above is a starting point to get you going.

Tagging des8 in case he has anything to add.