Charging Order? The myth

DAKOTA45

Hi Wembley14…. Many thanks for the update.


I have heard about that BL article but they have removed it from the web, so I've not actually read it.

What seems weird is that they are allowed to modify something that the Land Registry deems to be perfectly adequate for purpose, or else they would change the standard wording, presumably.

I found time and again that this firm were able to ignore LR (and CPR) rules, which are set out in black and white, therefore should be adhered to.

How were they able to get away with it?

My current dilemma is whether to challenge the 2nd application which was made more than a month after the original JO...

A kind friend who is knowledgeable about these things pointed out that the modified restriction should be struck out as it is illegal at its formation… he said;

"The County Court does not have the jurisdiction to vary its original order once the order has been sealed (perfected) and any application to vary it must be sought by the appeal process, in this regard, the 'new' order is invalid and therefore irredeemably unenforceable due to the principle of illegality at its formation. Therefore the applicant has not only abandoned but challenged the original order and the County Court and the District Judge who dealt with the application and granted the order sought does not have the jurisdiction to hear and decide what was in effect an appeal by the client against the terms of the original order, because such a challenge and appeal to the original order sought by the applicant can only be dealt with by the appeal court."

I really need to get some legal advice, I guess.

I am glad that you were able to eventually move on, but the stress caused by BL's underhanded behaviour cannot be underestimated… it has made me very ill at times, as I am sure you will be able to understand...

One thing which struck me… perhaps BL should go into conveyancing.. I am sure they would be in great demand!

Again, many thanks… (apparently we two are quite unique, according to LRR).

Watch this space!


DAKOTA45

DAKOTA45

Hmmm…

With regard to whether a standard form K restriction may be modified once the Final Judgement has been made;

'Any order varying or revoking the trial judge's post judgement orders must be sought and obtained on an appeal (R+V Versicherung A. G vs Risk Insurance & Reinsurance Solutions S.A (2007) EWHC 79 (Comm); The Times February 26, 2007 (Gloster J.) (where held, in the context of the case, the power can have no application to a final judgement trial on the substantive merits of an issue)).
The rule does not give a judge, in effect, power to hear an appeal from themselves in respect of a final order, and should not be used to revoke approval to a final settlement, whether of the whole or part of a claim (Roult vs North West Strategic health Authority (2009) EWCA Civ 444, may 20, 2009, CA, unrep. (rejecting the submission that the court's power may be exercised where a subsequent unforeseen event destroyed the assumption on which the order was made)).'

Also this; CIVIL PROCEDURE: court's power to vary or revoke orders under CPR r 3.1 (7)

'The primary circumstances in which a court's discretion may be appropriately exercised are (a) where there has been a material change of circumstances since the order was made, or (b) where the facts on which the original decision was made (innocently or otherwise) were misstated.'
The authorities indicated that the successful invocation of the rule was rare. Such is the interest of justice in the finality of court orders that it ought normally to take something out of the ordinary to lead to a variation or revocation of an order, especially in the absence of an interlocutory situation.'

So.. it seems there has to be a really good reason to modify a JO.

Their application was out of time in any case and the only reason given for the modification was that it did not provide enough security for the debt. Why did the court allow this (without notice) application to go through without it being subject to the appeals procedure, I wonder?

I would be very grateful for further comments, please

DAKOTA45

Hello again…

A question (or 3) for Land registry Representative, if you are there, please.

Could you tell me whether any modification of the standard form K restriction would need approval from land registry prior to a hearing?

Also, in my case, there was a hearing (04-11-14) for a final charging order which resulted in a standard form K restriction.

This was followed by another hearing (08-12-14) when a modified version of the restriction was allowed.

When notification of the charge came to me from Land registry, it only mentioned the date of the first hearing but with the later modified text attached.

Presumably the applicant only contacted LR after the 2nd hearing and backdated the modified form K so that it applied to the original hearing.

Can they do that? Should I ask for it to be explained because I am not sure if there are one or two JO's? Is the first one extinguished by the 2nd? If there are two, then they both refer to a modified restriction…or do they?

I am very confused.

DAKOTA45

Land_Registry

DAKOTA45 - the answer is No to the first question as the decision is the court's alone. If their decision is that a modified form K restriction should be registered and the order states that we have to do so then we register.

Without the specific detail re dates/timing and title/property we don't know what the sequence of events were - presumably the court can confirm this as if you are questioning the legality of the process then it would be a matter to raise with the court.

We have no say in how the creditor may or may not apply to the court. From a registration perspective we are looking at three things, namely:-

if the application is accompanied by a court order directing Land Registry to register the restriction, then we will register it and advise the registered owners

if the application is accompanied by a court order but the order does not direct Land Registry to register the restriction - in which case we give them the opportunity to either apply for a form K restriction only or to go back to court and amend the order, or

if the application is not accompanied by a separate court order directing the registration of the restriction then we reject their application.

My expectation would be that there were two separate orders made here, hence two separate restrictions and the apparent time-lag. If that is the case then presumably the creditor went back to court the second time with additional information to then achieve the modified form K restriction. However we simply would not know as we are not part of the court process.

If you are questioning/challenging the outcomes then I would suggest firstly applying to us for a copy of the application form(s) and COs as submitted.
Then ask the court for any additional details as to how the orders were made or evidence submitted
Then seek legal advice to ascertain wheat action, if any, can be taken.

DAKOTA45

Hi LRR… many thanks!

TWO hearings but only ONE notification from Land Registry… Looks as though both hearings have been amalgamated into a single (backdated) charge, as LR refers to a modified restriction but quotes the date of the original JO which was just for a standard form K…

So the applicant would have had to send the resulting JOs from BOTH hearings to Land registry? If they had done that, I would have received TWO notifications from LR instead of just one, presumably?

I don't think they sent the first JO to LR, but just sent the details from the 2nd hearing. Strange how it's been backdated by LR though.

I am afraid I can't work out how to paste stuff up on here so can't forward any details.

Still seems a bit odd, though…if they didn't send the details to LR re the 1st JO, then there can be no valid restriction in place for a standard form K and as I am questioning the legality of the 2nd (modified) JO because the application should have been made through the appeals procedure, where on Earth does that leave me?

DAKOTA45

Land_Registry

If you want to check on what was registered and how as well as what paperwork we have on record, which you can then apply for copies of, then you can Contact Us with the details as mentioned in the previous post .
We can then advise on the order of application's made and what documents are available, how to apply and at what cost.

wembley14

Dakota45 and LRR








its starting to look a bit shady this rare modified restriction.
This is probably why its not been used much.
LRR has said that they (land registry)should have notified the estate owner of the 2nd modified application following the 1st restriction one month prior. If you did not receive notification then LR have failed in their duty to do so.
The courts seem to be granting what ever the creditors apply for.
The LR then go along with these applications because they do what the courts tell them, no questions asked.
While we, the ordinary man on the street are expected to lay back and accept these outcomes. I feel they believe that these actions will not be questioned.
LRR has suggested requesting copies of application documents sent to LR, I think this is a good idea to check that proper procedure has taken place.
It still puzzles me that if BL thinks that the standard wording is insufficient, why then apply for one and then modify it later????.
This is probably one of their many scare tactics. But remember it is not a charge and can be still over reached when coming to sell property.
I succeeded in selling my property due to BL withdrawing the restrictions because of my formal complaint to their firm and client using unlawful tactics. So if you can find that they have acquired these restrictions wrongly you must make a formal complaint.

DAKOTA45

Hi Wembley14 & LRR….

Thanks to both for your response… I will try and find out what has been sent to LR though I suspect BL would have bided their time and just sent the one notice to LR (once they had the modification ok'd).

LRR, was that lawful… do they need to notify LR only once, even though there are 2 JOs? (Albeit for the same debt).

Yes, Wembley14, very suspect in that they knew that they were going for a modification & they were present at the actual hearing for the final charging order… so why did they not mention to the judge that they wanted it modified at the time?

Why wait to get a final CO granted and then straight afterwards make a secret application for a modification?

The only reason I can think of is that they knew I would be entitled make a valid objection had I known of their intention, so kept it a secret, making the application without notice to me, so they could present the modification as a fait accompli to LR.

They have violated my right to a fair hearing… this is so underhanded it's untrue!!

So you actually complained and they backed down? It seems that BL are the only lawyers to have decided that a standard form K restriction is not good enough for them…. I must go back to the court.

As far as I know, they should have gone through the appeals process as they accepted the first JO & only sought the modification after the decision had been made for a standard form K.

It is very rare for a judgement to be varied once it has been made and there would need to be a very good reason to do so, such as an error being made or facts not disclosed… a judge does not have the right to alter a JO without extenuating circumstances.

I am a little unsure of the procedure, I guess it will be an application to set aside… but I am out of time to appeal as they kept the application a secret until more than a month afterwards…

Does anyone here know whether I need to ask permission to the court for a variation of time before I make an objection, please?

DAKOTA45

Land_Registry_representative wrote: »

If you want to check on what was registered and how as well as what paperwork we have on record, which you can then apply for copies of, then you can Contact Us with the details as mentioned in the previous post .
We can then advise on the order of application's made and what documents are available, how to apply and at what cost.

Many thanks… I have filled in the form…
Ref: 150307-000019

DAKOTA45

Hi Wembley14… I am going to delete BL's name from all posts… not only in case they decide to sue me for revealing their dirty tricks, but also, why give them free advertising?