Warning of a Bankruptcy Petition in a week time - Please help

[Ogo]

Re: Warning of a Bankruptcy Petition in a week time - Please help

Thank you very much. the facts you highligted on bold fonts in post number 13 were correct. The solicitors wanted him to pay £4087.20 + £100.

Is it that he does not have any recourse to appeal anymore since he claimed he was expecting the court to advice him on the track so that he would have to fill the correct Appellant Notice (Form 164 for small claim or Form 161 for fast track or multitrack) and to lodge the appeal at the right appeal court (Circuit Judge at the County Court or Court of Appeal if multitrack) so as to avoid wasted cost? You kind help would be appreciated on this aspect.

[wales01man]

Re: Warning of a Bankruptcy Petition in a week time - Please help

If I am reading the replies correctly there is no appeal left its pay the solicitor or reach an agreement to pay or the Bankruptcy Court

[stevemLS]

Re: Warning of a Bankruptcy Petition in a week time - Please help

As far as I can see, the application was dismissed summarily by a District Judge, it did not seem to get as far as allocation to any particular track. In any event it could not possibly be have allocated to the small claims track which is for monetary claims of <£10k. This was a claim for an injunction.

The Practice Direction 2B on Allocation makes it clear that applications for injunctions will be allocated to a circuit judge but 8.1, if I have understood the claim here, permits a DJ to deal with it in these particular circumstances.

I don't believe it was ever allocated to a track as such.

As Amethyst says, you are so far out of time to lodge an appeal I don't think you have any prospect of reopening the matter.

You can't simply sit back and ignore time limits because you have made an enquiry of the court - you might get away with it for a day or two, but not nearly a year.

Since Mitchell v News Group the courts are taking an ever stern approach to enforcing time limits.

[Amethyst]

Re: Warning of a Bankruptcy Petition in a week time - Please help

Thank you very much. the facts you highligted on bold fonts in post number 13 were correct. The solicitors wanted him to pay £4087.20 + £100.

Is it that he does not have any recourse to appeal anymore since he claimed he was expecting the court to advice him on the track so that he would have to fill the correct Appellant Notice (Form 164 for small claim or Form 161 for fast track or multitrack) and to lodge the appeal at the right appeal court (Circuit Judge at the County Court or Court of Appeal if multitrack) so as to avoid wasted cost? You kind help would be appreciated on this aspect.

It seems he had pretty much lost at the directions hearing I'm afraid, costs were awarded there and then, and it doesn't appear to have gone any further. As Steve has said it would have been fast track being an injunction and as he had claimed £25k.

The only bit I'm not sure on, maybe Steve can suss it out, why the first judgment order states the claim is stayed until October 2013 if he had already summarily dismissed it.


(On the bankruptcy bit though it makes no odds as costs were ordered at that first hearing and that is what the SD and bankruptcy petition is based on - so really what happened following that costs order is irrelevant for the purposes of this)

[Amethyst]

Re: Warning of a Bankruptcy Petition in a week time - Please help

Actually, I haven't asked, Ogo, is your friend in a position to pay this £4k within the next few days? If not he is going to need to do some serious negotiating and have a decent instalment offer to fend of bankruptcy. We don;t know his overall situation so it's very hard to help further other than to say this must be paid else he will be made bankrupt.

Also he is very lucky to have come across a VERY decent Judge at the set aside hearing to have only awarded £100 costs on a barrister represented hearing, £13k was pushing it somewhat but he could easily have awarded another £2k - £4k.

[stevemLS]

Re: Warning of a Bankruptcy Petition in a week time - Please help

It's a pure guess and remembering that the order will have been drafted by the defendant's solicitor, I can only think that it was a provision they intended to come into operation in the event that the application to dismiss wasn't successful, perhaps to allow for ADR?

Essentially, then a drafting error - the substantive claim having been dismissed I can't think of any other reason.

[Ogo]

Re: Warning of a Bankruptcy Petition in a week time - Please help

I am grateful for all your help and assistance.

My friend does not have that sort of money at the moment hence he came to seek my assistance financially which I cannot afford at the moment. My contribution to help is by way of coming her to seek alternative ways since I do not have money to help him at this point in time and according to him he does not want to receive any Bankruptcy petition because he was doubtful he would not be listened to as he was not listened to at the District Court. He told me that the Solicitor wrote him when he requested for time or stay that they insisted on having full money or Bankruptcy petition will be issued with no further notice after the deadline.

On the issue of Claim stayed until 25 October 2013 I had written the following in post number 1 based on what he had told me:

Then went on to state that the parties should try and resolve matters and that in six weeks he would call for another hearing.

I was making reference to the District Judge making that quote above in case I was not very clear. He told me no further hearing was sent to him and he never received the said order dated 16 September 2013. You would see that at the bottom right hand corner of the order there is a page number 10. He said that was the page number in the statutory demand application served on him by the Defendant in February 2014 where he saw the order for the first time. He said he never knew that the judge made any judgment on 16 September 2013 that he thought the Judge just echoed the same amount mentioned by the barrister. Then that the judge then directed the parties to try and resolve the issues and he would call for another hearing in six weeks time by 25 October 2013. That no further hearing was ever called.

I would be pleased to receive any possible grounds of appeal as the court may consider his circumstances to see whether he raised sufficient grounds for him to be granted permission to appeal out of time.

[Amethyst]

Re: Warning of a Bankruptcy Petition in a week time - Please help

Without him getting any documents from the court its impossible to say. Do you know what he used as his set aside of the Stat Demand ''defence'' application? Was it purely based on the not having received the costs order and having had no contact with the neighbours/solicitors since - or did he go in back on the land issue arguments?

He must get any and all documents off of the court. Did he have mail forwarding set up from his old address (where he bought the claim from?)

He had that hearing back in September 2013 and he has a bankruptcy petition being presented in the next few days. Has he sought advice at all through that period ? (other than sending letters to the court?) Did he have mail forwarding set up from when he moved to receive court documents?

Sadly the claim was misconceived to begin with and it does sound as though he should have sought professional advice during the original issues with the flats and land. There's far too much there to be a simple injunction - it may turn out he did sell rights to the garden access (it sounds like he did without realising) - and if he does somehow get the case back up and running, he's into much higher costs territory.

I do fear this may be one of those things where he is angry and feels incredibly hard done by by the freeholder, neighbours, court and justice system, and of course he lost a lot of money on the sale of the flat, but it could end up ruining him, and sometimes you have to reach a point where you need to let go and move on.

If I were he I would do all I could to agree an instalment payment on the costs or borrow the money (sensibly) to pay off these costs. The other side sound quite hard lined and won't be happy their request for £14k costs was chucked out so drastically, so negotiation is going to be tough.

[wales01man]

Re: Warning of a Bankruptcy Petition in a week time - Please help

Has he asked the Solicitor for time to pay via instalments?

[stevemLS]

Re: Warning of a Bankruptcy Petition in a week time - Please help

I agree with Amethyst. I fear there is no-where to go with this.

It does illustrate the potentially ruinous nature of neighbour disputes.

[Ogo]

Re: Warning of a Bankruptcy Petition in a week time - Please help

Without him getting any documents from the court its impossible to say. Do you know what he used as his set aside of the Stat Demand ''defence'' application? Was it purely based on the not having received the costs order and having had no contact with the neighbours/solicitors since - or did he go in back on the land issue arguments?

This was the email information received on the Statutory Demand response:

2. That I do not admit the debt for the following reasons:

• I was only aware of District Judge XXX Order for payment for the first time on the night of the [Date] when the process server delivered a set of documents including the Court Order from [Solicitor] to my property. I am well informed to know that I have everything to lose and nothing to gain by not responding to this order immediately if I had seen it at the right time.

• District Judge XXX appeared to have stated from the outset on 16 September 2013 that the proceeding was not a formal hearing but a preliminary hearing to establish directions for the case and as such my evidence was not examined or tested by the court for the about 20 minutes the hearing lasted.

• My understanding from the Judge on the defendants’ bill of cost (which I only received just before the hearing) was meant to be a tentative/un-finalised charge as both parties agreed to the Judge’s suggestion to negotiate a settlement in which this charge be thrown into the mix as part of the negotiation. That product of the settlement/mediation will determine the Judge’s direction(s) when the court reconvened on the 25th of October 2013. The defendants decided not to be a part of any negotiation and I did not receive any correspondence from the Court to reconvene.

• Article 6 of the European Convention on Human Rights protects the right to a fair trial. It states that In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Granting a payment order at this stage when no formal and public hearing has taken place would be a violation of Article 6 Convention Rights. I had family and friends who came to Court to hear the case on the 16th of September 2013 but were deprived of entrance into the Court room as the hearing was classified as private.

• The hearing on the 16^th of September was not allocated a track and should have been allocated a track in accordance with the Law. Claimant was seeking damages of no more than £25K from both Defendants (12.5K per defendant) which ought to be a small claims track or at the maximum a fast claim track where there is a cost cap limitation of £1650 according to Article 45.38 of CPR (Amendment) 2013. Therefore, the bill of cost of £4087.20 provided by the defendants is disproportionate and unreasonably incurred (Article 44.3.1 CPR (Amendment) 2013)). I have since sold the property without access to the garden but suffered a huge loss of £20K as a consequence of this. Thus putting the damages claim effectively at the small claim track (£10k per defendant).

• [redacted] Solicitors who are representing the defendants has made an application to [Name of court] County Court [dated] to have the Interim Charging Order continued or discharged at 2.00 pm on the 5^th of May and I will be making my case at this hearing to have this order discharged.

• In response to the XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, I have sent my response listing some of the facts that I have made above and more. It has been referred to a Judge and I am awaiting directions.

I would like the Court to consider the totality of the facts that I have listed above and set aside this order/payment of the statutory demand.

[Ogo]

Re: Warning of a Bankruptcy Petition in a week time - Please help

I thank everyone of their help and assistance.
I would appreciate any appeal grounds that could be of help including how to draft reasons for permission to appeal outside time for him.

[Amethyst]

Re: Warning of a Bankruptcy Petition in a week time - Please help

Interim Charging Order continued or discharged at 2.00 pm on the 5th of May

Do you know when your friend became aware there was an application for a charging order over his property? ( was this just prior to the Stat Demand being issued ?)

Did he attend this hearing and if so what happened?

[Amethyst]

Re: Warning of a Bankruptcy Petition in a week time - Please help

I thank everyone of their help and assistance.
I would appreciate any appeal grounds that could be of help including how to draft reasons for permission to appeal outside time for him.

All it will do is cause further costs to him, and the next Judge is unlikely to be so kind as at the SD Set Aside hearing.

He should have sought advice before commencing the injunction proceedings, actually, getting advice during the time of the 're-organisation' of the leasehold arrangements would have solved a whole lot of heartache.

It sounds like he will push ahead with this regardless of what we have said. If he does he MUST engage a good solicitor.

My recommendation, for what it is worth, is he gets negotiating with the other sides solicitors as soon as possible to try and come to an arrangement to pay the costs bill before he is made bankrupt.

[Celestine]

Re: Warning of a Bankruptcy Petition in a week time - Please help

Your friends prospects for appeal are absolutely zero. All he will achieve is further costs. Sorry x

I set aside bankruptcy applications every day. The normal costs for making/defending such an application is £2-3000. So when we say the Judge was being kind, we really mean it. £100 is practically unheard of for a barrister contested hearing.

I think the fact that they were greedy in trying for £13k helped your friend out a lot, but he's survived that hearing...he won't survive the next.

I do sympathise, I lost a huge case against Lloyds for my sister 2 years ago. We had to pay £11k within 14 days of the Order. Our anger and frustration was monumental, but we knew when we were beaten and could not afford to fight on, despite having some grounds for appeal ironically.

Unfortunately, not having taken decent legal advice is not a valid defence. The legal system can and often is highly unfair with bizarre outcomes, but do not underestimate how something small can quickly run out of control.