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CCJ at wrong address

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  • #31
    I'm not familiar with those cases, I would have to read them for context but it seems like they all relate to service of a notice of ground rent/charges. However, what they appear to have failed to take into account is that the grounds for setting aside the judgment is based on invalid service of the claim form. The Civil Procedure Rules govern service of the claim form which is different to service of a demand for rent/charges - whilst the demand may be considered valid service, they do not extend to service of the claim form and therefore they must comply with the provisions/case law of CPR.

    I will have a look later today at those cases and confirm but that's my first instinct.

    What does the other email say about their offer to set aside
    If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
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    Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

    Comment


    • #32
      They have not made any offer to set aside, other then the initial letter which I have uploaded here. When I asked if I can do the consent form myself, they have refused to consent to set aside. If I have a strong case I am inclined to go ahead with the N244. If there is some risk then I would be inclined to take up their offer and pay their fees, as well as the time barred ground rent demand. I have mortgages, and a CCJ will hurt when the renewals come up.

      Litigation - 01_11_2022, Correspondence Out, 0000029997.pdf
      Attached Files

      Comment


      • #33
        I have looked at those cases there are some relevant points to make:

        - It appears that their response is geared more around whether the demand for the charges were served at the correct address rather than the issue of service under CPR 6.9. It is a bit farfetched to suggest what you have explained to them is irrelevant when it is directly on point. I would probably say that they are the ones who are barking up the wrong tree but if they advise the claimant to oppose it and the claimant does, bigger fool the claimant.

        - Each of the 3 cases are related to serving notices and not service of the claim form.

        - None of the cases ever discuss, refer to or otherwise give an opinion on (i) the rules of service of the claim form under CPR 6.9 (ii) what the legal position is as to service where the individuals had never lived at the property. Each of the lessees in those cases have, at some point or another, lived in those properties and the disputes were specifically related to whether reasonable enquiries had been made such that the notices were deemed to have been validly served. That is a significant distinction from your current position where you have never lived in the flat. The Marshall v Maggs case is the leading authority on the point related to service under CPR 6.9 where the individual has never lived at an address. I would be very surprised if they try to run the argument that those cases are more authoritative than the 3 cases you are looking to use which specifically discuss CPR 6.9, they would look very weak.

        - Also note that in the Oldham case which they refer to at paragraph 28, it actually says the general rule is that your information taken from the Land Registry would be sufficient to serve a notice on an individual. That rule is qualified by 2 things (i) if there is a statutory law, that law prevails over the general rule or (ii) if the sender is on notice of an alternative address, they must serve the notice to the other address also. The Civil Procedure Rules govern all legal proceedings and derive from the Civil Procedure Act 1997, so that general rule is displaced.

        Nobody can guarantee that you will be successful but based on what they are trying to argue, I think you do have a decent chance of getting your CCJ set aside. There are risks and it is possible you could lose because it all depends on how you argue your case on the day, but with enough preparation and walking the judge through everything in a methodical way, the judge should agree with you as it is blindingly obvious that the case authorities back you up.

        If you are going to respond back to their email, I wouldn't bother wasting your time and just simply say something along the lines of, you don't agree with their position or that their cases have any relevance to your issue but there is no point in repeating what has already been said, so you will leave it at that and will be looking to submit your application to set aside in due course without further notice to them. The court will then have to determine whether service of the claim form was valid.

        You really need to do a witness statement with evidence, so I have attached an example. It's a starting point but you will need to tweak it based on the reasons you want it set aside. Why don't you have a go at drafting the statement and tomorrow I'll come up with some pointers on how to write the reasons why it should be set aside. The statement needs to be written by you because you're the one that has the knowledge of what has gone on. You also need to gather your evidence that you want to use and will need to be referred to in your witness statement. So write it out as you can and refer to your evidence in your statement and then we can tweak it so it's properly referenced.

        Once you're happy with the first draft, upload it here with personal info removed and we can provide feedback.
        Attached Files
        If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
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        Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

        Comment


        • #34
          I would like to try another go on settlement out of court and I propose the following the email, any help with this will be appreciated.

          Without Prejudice

          Dear Sir

          Thank your for your email and I have now studied the points mentioned therein. Each of the 3 cases you mention relate to serving notices and not service of the claim form under CPR 6.9. I therefore cannot agree with your position, as the cases you mention do not have revelance to my case. I have never resided in the flat, and the service address has never been the flat's address. I re-iterate the points I made in my earlier email.

          In a final attempt to come to an amicable resolution, and an attempt to save my time, your time and indeed the court's time, I would like to offer that your client agrees to consent to set aside the CCJ on the basis of costs as follows:

          Pay time barred ground rent: £100
          Court Fee: £108
          Your fees: £100
          Total: £308

          I look forward to your reply.

          Yours sincerely

          Comment


          • #35
            Be aware, the court has discretion to accept a signed consent order and although it's a rubber stamp exercise, if the reason isn't explained as to why the CCJ should be set aside, it will be referred to a judge who may proceed with a hearing anyway. They have refused to accept that service was not valid so unless you agree a way forward on how it should be worded, you might find yourself in difficulties and have to appear in court.

            If you are going to respond, you may want to set your stall out in a little more detail since you may have to produce these responses as part of your evidence. An example below incorporating some of the points I raised before, but feel free to keep as short or long as you wish - changes in red.


            Thank you for your email and I have now studied the points mentioned therein and I would make the following observations:

            1. You appear to be focusing specifically on the issue of whether the ground rent was validly served rather than service of the claim form. These issues are entirely separate and should not be equated as the same. However, and for the avoidance of doubt, I do not accept that notice of the demand was effective and I reserve all rights accordingly in respect of that point.

            2. None of the three cases you have referred to consider or otherwise discuss the issue of service of the claim form under CPR 6.9, rather the issues related to notices being served under the relevant statutory laws e.g. The Landlord and Tenant Act, The Town and Country Planning Act 1990 etc. I would add that in each of those three cases, the individuals had, at some point or another, lived in the properties whereas the same cannot be said in my case since I have never lived at the flat. Again, none of those cases considered this point at all and as far as I am concerned, Marshall and Rankine v Maggs is the leading authority on service of the claim form where the individual has never resided at an address.

            3. The general rule described in Oldham MBC v Tanna
            is qualified where statutory law applies and/or if another address has been given to the sender of the notice. As you will no doubt be aware, the Civil Procedure Rules which governs all legal proceedings derives from the Civil Procedure Act 1997, and I have already pointed out there is evidence that McInerny Homes were aware of my correspondence address other than the flat where demands for charges should be issued. Therefore, the general rule you seek to rely on is displaced.

            4. To suggest that the cases I am relying on are irrelevant and can be distinguished is somewhat of a nonsense. None of your cases have had any relevance to CPR 6.9 whereas my cases are all directly related and are clearly concerned with service of the claim form under that rule.

            I am confident that my application will be successful under CPR 13.2 but I am going to make
            a final attempt to come to an amicable resolution, and an attempt to save my time, your time and indeed the court's time, I would like to offer that your client agrees to a consent order to set aside the CCJ on the basis of costs as follows:

            Pay time barred ground rent: £100
            Court Fee: £108
            Your fees: £100
            Total: £308

            If I do not hear back by 4pm on XXXXX, then I will issue my application without further notice.
            Last edited by R0b; 11th November 2022, 12:16:PM.
            If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
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            LEGAL DISCLAIMER
            Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

            Comment


            • #36
              Thank you very much Rob, I have sent the email and hopefully they will see sense and accept the offer. Just wondering how I am doing for time in making my N244 application from the 'promptness' point of view

              Comment


              • #37
                The issue of promptness doesn't apply where there is a mandatory set aside but it does under the discretionary. Nevertheless I think you should be looking to get your application submitted early next week at the latest.
                If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
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                LEGAL DISCLAIMER
                Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

                Comment


                • #38
                  I got this reply this morning: -

                  I adverted to CPR r 6.9 which relates to the presumption of proper service- I reiterate that no address was provided by the previous freehold owner and there was neither any hint nor suspicion that you no longer resided there at the property address. CPR 6.9 applies to the service of a Claim Form. Further, you did not provide my client the Claimant with a current correspondence address.

                  Notwithstanding, I referred you to the below mentioned case. Inter alia even if an address has been supplied to a former owner this is not imputed to the subsequent present landlord.

                  The case of Obi-Ezekpazu v Avon Ground Rents Limited and another [2022] UKUT 121 (LC) (see https://www.bailii.org/uk/cases/UKUT/LC/2022/121.html and particularly paragraphs 39, 40 and 43) makes it abundantly clear that the correct address for the service of a rent demand is the flat address, unless the leaseholder has notified the current landlord of an alternative address for service of demands and documents. The case is also authority that where an address has been given to a former landlord, that information is not imputed to a subsequent landlord. Reference was also made to section 166(6) Commonhold and Leasehold Reform Act 2002 on the subject of service of the rent demand.

                  Section 166(6) states:

                  “If the notice is sent by post it must be addressed to a tenant at the dwelling unless he has notified the landlord in writing of a different address in England and Wales at which he wishes to be given notices in which case it must be addressed to him there.”

                  In your case It followed that the Claim Form could only be served at the property address- the claimant had a reasonable belief that you were residing there at the address served. You did not telephone; email or write to the Claimant with an alternative address for service.

                  You are an investor in property to let and no doubt you receive an income. You are liable to pay ground rent in accordance with the terms of your lease. It is irrelevant that you never lived there in a landlord and tenant contractual relationship as evidenced by the lease. The position is in contract you have covenanted/promised in your lease to pay ground rent and that implies you will inform the landlord of your current residential address.

                  The Claimant made further enquiries of the Land Registry and here again you address is recorded as the property address. The Oldham case is authority that the address given in the Land Registry is conclusive as to service unless another address is known. Also it was decided that the duty of the registered proprietor is to update the register with the current address- you did not do so. It matters not whether it is a Planning notice or any other notice.

                  In the Maggs case (concerning the validity of service on a firm of solicitors) to which you refer, contrary to the facts in your case, this was a case of the claimant, an assignee of the debt, taking an action for recovery of the debt in which the defendant informed the claimant by email that a letter had not been received. It was decided in these circumstances that,

                  “ At best it amounted to a matter which might be further investigated. The claimant did not do so.”

                  The case of Maggs is not binding upon the circumstances of the facts in your case in landlord and tenant law and it does not apply to your case and is distinguished: you covenant in the lease to pay ground rent as the tenant/lessee of the property served by the landlord /freeholder. I agree that on the facts in that case the judge held that the defendant had never lived at the address served, but that proposition is irrelevant to the facts in your case.

                  You ignore Golding v Martin [2022] EW Misc 2 a case decided this year when it is clear that a Landlord has a duty.
                  His Honour Judge Luba QC said: ” …a non-resident and absentee leaseholder who provides no correspondence address other than that of the property itself must either (a) make proper arrangements for forwarding or diverting the mail addressed to the premises or (b) entrust the take of ‘keeping an eye’ on their property to person who are committed to the task.”
                  The foregoing CPR rule and case law proves that the Claim Form was properly and regularly served upon you and that you neglected the duty to imposed upon you as a landlord by the law and practice.
                  It is a simple matter to inform the landlord of your current correspondence address and you as a landlord failed to ensure that the Claimant was made aware of your current address.
                  My client’s position has been made clear to you that the Claim Form was properly served.
                  Accordingly, I see little point in continuing with this correspondence.
                  This communication will be produced to the Court in any application you make for setting aside.

                  Comment


                  • #39
                    He mentions Golding v Martin [2022] EW Misc 2 where the lessee lived in the flat, whereas I have never lived in the flat. Does the law treat it differently if one has lived in a flat as opposed to have never lived in it? Why does he keep ignoring my case that I have never lived in the flat?

                    Comment


                    • #40
                      Their response just proves my point that the person you are talking to doesn't have a clue what they are talking about. Their legal representative is fixated on service of the rent demand as enabling them to argue that the claim form under CPR 6.9 was served - they are not one and the same thing.

                      Golding v Martin is a County Court decision and is not legally binding and you're right that in this case the lessee had actually lived in the property before moving to Spain. Completely different to your situation.

                      Obi-Ezekpazu v Avon Ground Rents Limited and another I don't disagree with the CoA's decision but that decision was made based on section 166(6) Commonhold and Leasehold Reform Act 2002. This provision of legislation is headed Requirement to notify long leaseholders that rent is due and it sets out how notice of rent demand should be made which is further reiterated by the lawyer - key word here, rent demand. It has absolutely nothing to do with CPR 6.9 nor does section 166 of the LRA mention, imply, or in any way suggest that notices sent under this section will satisfy the rules on service under the Civil Procedure Rules. The section is strictly limited to rent demand, not civil proceedings.

                      As I already said before, you are not at this stage disputing the rent demand, but rather you are disputing whether the claim form was correctly served. The Civil Procedure Act 1997 governs all civil proceedings which implemented the Civil Procedure Rules as they are updated from time to time, not the LRA 2002 or the Landlord and Tenant Act or any other landlord and tenant law legislation.

                      I suspect the lawyer is messing with you and really knows that his client is in the wrong but is trying to save face. Either that or the lawyer must be very bad at their job. Nevertheless, I agree there is no point in trying carrying on the correspondence malarky you just need to decide whether you want to go ahead with your application or not.

                      You need to do your witness statement at least and then consider whether you want to attach a defence at the same time or not and worry about that when the claim is set aside. I don't have anything more to add on the matter unless you have questions about your witness statement or your application.
                      If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
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                      LEGAL DISCLAIMER
                      Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

                      Comment


                      • #41
                        Witness statement will be key, and I definitely will need help with that. Can I submit the application tomorrow as already suggested by the example given earlier, and then I can work on witness statement to follow?
                        I made them a good amicable offer to consent to set aside, and they refused, now it’s going to cost them more in time whether they win or lose.

                        I am going to have a go at this

                        Comment


                        • #42
                          Your witness statement needs to be attached with the application. You can't send them separately.

                          Here are a couple of links to help you understand how it should be written and set out. Happy to look over any draft statements but you do need to make sure it flows and is logical. Try to use short sharp sentences and get to the point, no waffle needed just to pad your statement out unnecessarily.

                          Preparing Witness Statements for Court: Step by Step Guide (template) (hallellis.co.uk)

                          Witness statements - Shelter England
                          If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
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                          LEGAL DISCLAIMER
                          Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

                          Comment


                          • #43
                            I checked out the claimant's solicitor on the Law Society website and he was first admitted as a solicitor in 1979. With over 40 years experience he still does not differentiate between rent demand notice and court notice, and does not think it matters if one has lived in a flat or never in a flat pertaining to a court noice!

                            I am preparing my witness statement. Meanwhile in the N244 form in box 3 this is what I intend to write (taken from an eariler post): -

                            1. An order that the judgment dated 24/08/2022 be set aside because pursuant to CPR 13.2, service of the claim form was defective and invalid for the following reasons:
                            1. The Defendant never lived at the address the claim form was served; or
                            2. the Claimant was imputed with knowledge of an address where the Defendant currently resides, which was not the address used by the Claimant on the claim form; or
                            3. even if the Claimant was unaware of the Defendant’s last known address, it failed to:
                              • take reasonable steps to ascertain the Defendant’s current place of residence (CPR 6.9(3)); or
                              • consider an alternative method or place by which service of the claim form may be effected (CPR 6.9(4)); or
                              • if no such method or place for service was possible, make an application to the court for further directions (CPR 6.9(5)).
                            2. Alternatively the Defendant relies upon CPR 13.3 in that:
                            1. The Defendant has a real prospect of successfully defending the claim for the reasons set out in the draft defence annexed to this application; or
                            2. There is some other good reason why the judgment should be set aside.

                            3. Costs incidental to this application.

                            Comment


                            • #44
                              Ok, my first draft of the witness statement - will really appreciate your help with this
                              Attached Files

                              Comment


                              • #45
                                I have manged to find a 'Particulars of Sale' on a McInerny Homes headed paper, which states my residential address, both my home and mobile numbers and my email address. This is dated March 2007, and proves the Mcinerny Homes had my email and phone numbers. So if the "imputed with knowledge" argument stands, this proves that Comptons have my phone number as well as my email addresss, neither of which was used to contact me. This I will add to the witness statement.

                                On the flip side, about a month before I received the letter from my mortage company with court paper copies, I received just a letter from my mortgage company saying that Compton Group are owed arrears of £885. This was confusting to me, as I have never heard of Compton Group. Now, that mortgage company letter refered to "Re: Unpaid Ground Rent/Service Charge" so I emailed my service charge company explaining the mortgage company's letter saying that I am up to date and therefore remove this court action. I did not receive a reply and I thought the matter was resolved. I know it is wrong now, but I was under the impression that my ground rent and service charge is handled by the same company! Another flat I have, the same company handles them both.

                                Another point I need to add to the witness statement is that when I enquired from Compton's on when they acquired the freehold, they said "Gracefavour Limited (for whom I act) bought the freehold reversion of xxx (the flats) from the joint liquidators of McInerney Homes Limited on 25 March 2021"

                                How can I possibly know that Comptons or Gracefavour had taken over from McInerny when I had no correspondence from them? How can I have paid the ground rents when there were no demands?

                                Comment

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