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Max Lowry
Max Lowry, Advocate
Category: Law
Satisfied Customers: 1457
Experience:  LLB, 10 years post qualification experience
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I have an ongoing civil claim against myself and Company.

Customer Question

I have an ongoing civil claim against myself and Company. I wont divulge unless necessary, but an undertaking to not sell my property was agreed by myself and expired this week. I sought advice from my solicitor and we decided that we would refuse the claimants request to extend on the basis that I require to sell my equity to my wife to fund my ongoing case against the claimant. They have since raised an emergency injunction and this may be officially heard next week. What are my rights? Am I not legally entitle in line with my human rights to use my equity to fund this case against me? In your opinion how will the court of law view this? Lastly, when I signed the first agreement to this the judge did not push this and my barrister was of the opinion that he may have not- I just thought that it would be best practice for the purposes of transparency! I look forward to hearing your thoughts and opinion. James
Submitted: 3 years ago.
Category: Law
Expert:  Max Lowry replied 3 years ago.

Max Lowry :

Hi, welcome to Just Answer. I will help you with your question.

Max Lowry :

Has a freezing injunction or some other injunction actually been granted against you, as opposed to just applied for?

Customer:

The undertaking expired on the 20th of march and I have found out today that they have a freezing order untill next wednesday when they hope to have a hearing regarding extending the undertaking of the property

Customer:

I am trying to find out what right they have to do this as I have no funds to fight the case otherwise.

Max Lowry :

Okay - if the freezing order has been granted, then you need to obey it. If you sell the house/interest in it, against the terms of order, you may face contempt proceedings, which might result in you being sent to prison.

Max Lowry :

As for funds to fight the case - are you saying the freezing order prevents you using funds to fight the case?

Max Lowry :

Are you there?

Customer:

Are you still there?

Max Lowry :

Yes.

Max Lowry :

I was asking about the terms of the freezing order - whether it prevents you using money to fight the case?

Customer:

The freezing order that they got today says that I can not sell my house to my wife until next wednesday after the outcome of the hearing?

Max Lowry :

Yes, this is a "without notice" order - which they got without telling you. However, you can now argue on Wednesday that they shouldn't be allowed to keep the order.

Customer:

Obviously I need the money from the property to pay for the bills to defend my self

Max Lowry :

Okay, I see. If this is the reason you need to sell it, then you need to make that clear to the Court. This is a reason for the Court to allow you to sell the property. Basically, they can only get a freezing order against you if the Court believes that you're likely to hide the money from he proceeds of sale of the house to deliberately prevent paying it to them in the event that you lose. If you need the money to fight the case, then that's a perfectly legitimate reason to sell the house.

Customer:

I have maxed out my credit cards have £600 in one account nothing in mine and my partners joint account, I have maxed out my credit card and I already owe my wife £4000. The equity I own is around £22000 as it is a split mortgage and my wife would have the other half. My solicitor has already charged me £11000 and it is estimated to cost another £200000 dos this sound like an unreasonable request by the claimant as they are suing for £250000???

Customer:

sorry 20000

Max Lowry :

It does sound unreasonable to seek a freezing order to me - you're entitled to legal representation, and you're entitled to be able to sell assets to pay for that. I guess they do not know about your finances, and they're obviously looking to prevent you disposing of the property as they probably think that's the only money you've got to enforce against if they win. Basically, if you sell the house, they probably believe there is no point in continuing the claim? Is this possible?

Max Lowry :

In short though, I believe you are entitled to use your home/assets and sell them to fund the legal action.

Max Lowry :

As I mentioned above, the whole point of a freezing order is to prevent putting assets deliberately beyond the reach of creditors (i.e. turning it into cash and hiding it somewhere).

Customer:

They believe I have this £250000 which I can not quite work out why, We enetered into an agreement and the said agreement didnt even generate this amount of money in profits which they do know. With little funds I have in equity I find it a bit of a shambles that they even think this bit sadly id the case.

Max Lowry :

Well, as part of the freezing order, you'll be required to set out your assets, and when they see this, it may have a very big impact on their approach to this litigation.

Customer:

Under which laws or acts could I find out more about this, They have also been paid in the region of £150000 of the case and really do know that this case is way to over exaggerated but because they have money they are using these bullying tactics is there anything else I can do?

Customer:

Also what do I need to provide to show the setting out of my assets, as I will start doing this straight away

Max Lowry :

This is a specialist topic and is rarely seen in general day to day litigation and in consumer cases. So, the best place to look is specialist barristers chambers, such as this article here, which is pretty detailed: http://www.2templegardens.co.uk/assets/docs/newsletter_documents/practical_guide_to_freezing_orders_winter2009.pdf

Max Lowry :

For now, just start putting together details of your income and outgoings and assets generally, and then be ready to pass that to your solicitor.

Max Lowry :

DO NOT send it to the other side, make sure everything goes through your solicitor.

Customer:

I will not, but in reality this will b pretty hard pushed in order to gain this kind of freezing injuntion?

Max Lowry :

Yes, I think so. I've just found a case for you to look at - bear with me, I'm trying to find a site that has it for free....

Max Lowry :

And it's on this very point about using assets for legitimate debt. HOld on a sec.

Customer:

OK

Max Lowry :

Here is a different link - more detailed information: http://www.guildhallchambers.co.uk/uploads/docs/section9/1UrgentInjunctionApplicationsHSRA.pdf

Max Lowry :

I'm struggling to find a site with it - but if you ask your solicitor to provide it for you, he/she should be able to do that: The case is: Caring Together Ltd v Bauso and others [2006] EWHC 2345 (Ch)

Max Lowry :

Here, the High Court held that no freezing order should be granted where the property/money is to be used for legitimate debt. As I mentioned, the key thing about freezing orders is that you intend to hide the case for no legitimate reason.

Customer:

Just one last question, if this hearing does not get heard on wednesday will I be able to sell my equity to my wife as the freezing order will be up?

Max Lowry :

Not unless the Court discharges the order preventing you from doing this. The Court will deal with it on Wednesday, and if it adjourns it, then it will make an order continuing the injunction until a later hearing.

Max Lowry :

This is really important. You must take advice from your solicitor before making any sale etc., the consequences of breaching the order can be very severe.

Customer:

OK Thanks for your help

Max Lowry :

Thank you too. Feel free to come back to me later (or after Wednesdays hearing next week) if you want more information.

Max Lowry :

I hope this answers your question for now. Please do remember to rate my answer as highly as you can.

Customer:

Would I go to Jail?

Max Lowry, Advocate
Category: Law
Satisfied Customers: 1457
Experience: LLB, 10 years post qualification experience
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