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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I was awarded cost totalling £1055 by the Adjudicator to HMLR

Customer Question

I was awarded cost totalling £1055 by the Adjudicator to HMLR via the now Property Chamber on 18 October 2013. The respondent unsuccessfully tried to appeal both against the decision and the costs. I'm told I should enforce the judgement at the County Court. The respondent is employed I know where he works and he is also selling the house he owns with which I had the dispute, hopefully in a matter of weeks along with his ex partner. I do not know where he lives and he continues to give me his former address. My questions are can I enforce the tribunal order immediately in the County Court or do I have to allow him time to dispute the order? If I do not know where he lives can I do this against him at his former address? If I go down an attachment of earnings route is it a N337 or something else? Or could a charge on the property as I think the house is sold, if so what form? I would prefer attachment of earnings as this would be against him and not his former partner, I was going to send a letter to his former given his former partner the choice of telling me where he lives and then going after his earnings, if she doesn't help them go down the property route, can I write to her this way?
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

For the avoidance of doubt can you confirm that you both have the tribunal order and that there is no active undecided appeal by the other party please?

Customer:

Hi Joshua

Customer:

Hi Joshua, Yes I have tribunal order and can confirm there is no active undecided appeal.

Joshua :

Thanks. In that case the tribunal order can be enforced directly in the courts immediately.

Joshua :

Based on what you say if he has not yet exchanged contracts one of the most effective ways you may consider might be a charging order on his property as he may be exercised to settle the matter as it would hold up his sale.

Customer:

I wanted to recover the money from him; I suspect he'll expect his former partner to pay half if its deducted from the sale.

Customer:

Do I need his current address?

Customer:

Which form would it be for a charging order?

Customer:

If go down the attachment of earning route directly with a N337 will it be a CCJ against him immediately?

Joshua :

If the debt is against him as opposed to his partner then a charging order would not effect his partners share. He could of course bully the partner into paying but he could do this whatever form of enforcement you took potentially. Taking a charge on the property would not impose any legal liability on the partner to pay if she is not a joint debtor.

Customer:

Good point on the division of the share. How long would it take for a charging order?. I don't want to prevent him selling the property that would be the last thing. But presumably a charging order takes time, so how do hold things up. It doesn't help because I don't know his current address; is that a problem?

Joshua :

Charging orders are made in two parts - part one to secure a temporary restriction on the property pending deciding of the charging order to prevent sale and part 2 to confirm (or not) the charging order. However it would if made in time delay the sale. From what you say this is something you would not want to do?

Customer:

Would the correct tactic be write stating I will begin to enforce the order by registering the debt at the local court, a N322B I believe.

Customer:

Finally, I do not know his new address. Do I need this or can I do this against the house he owned and lived in with his former partner?

Joshua :

Sorry for the delay in reverting to you - I had to take a phone call.

Customer:

He may be living 5 miles away and I don't know his current address, which may well be under a different court.

Joshua :

The above is not the correct form you need - that is for employment related awards. s.76(4), Land Registration Act 2002 provides that an order of the Adjudicator is enforceable as if it were an order by the court. Accordingly you can seek to enforce the award directly through the courts.

Joshua :

How you do depends upon your choice of enforcement proceedings. Is your preference attachment of earnings order?

Customer:

I have a N337 to enforce an attachment of earning order, but the local county court wouldn't accept it the clerk said I needed to transfer the debt as a tribunal decision first, hence seeking advice?

Customer:

If an order is made by the HMLR Adjudicator do I need to record it at the court first before I commence action or can I jump straight into enforcement?

Do I need to know the address the guy is now residing at, or can I use his former address. He has been telling HMLR and others he still lives at his former address in any case?

Joshua :

I don't think the clerk is correct. I believe she is confusing the Land Registry with an employment tribunal decision which does need to be registered with the court. The Land Registration Act specifically provides that the Adjudicators decision is enforceable is if it were a court order so there is no requirement for the courts to first approve it.

Joshua :

http://www.legislation.gov.uk/ukpga/2002/9/section/76

Joshua :

See sub paragraph 4 in the above link. You may wish to revert to the clerk and ask them to reconsider. To my knowledge a warrant or enforcement application can be requested with the evidence of the adjudicators order without the need to apply for the courts to allow the determination.

Joshua :

Could you bear with me whilst I check the CPR provisions in this respect to check I am telling you the right thing. If I am wrong I will readily so admit. If you could give me a few moments...

Customer:

If you live in one area and move to another presumably the creditor would need to transfer the debt to the local county court to enforce it against the debtor?

Customer:

Therefore is this a similar scenario the HMLR Adjudicators decision is unknown to the court, so do I have to transfer it there, so that I then may seek to enforce it.

Customer:

Or if it is the same as a court order can I simply enforce it, which ever route I choose?

Does it matter I don't know his new address?

Joshua :

Thanks for your patience. I am gratified to say that I am right and the clerk appears to be wrong. Rule 70.5 of the CPR provides that as per the Land Registration Act above, the order of the adjudicator is enforceable just as if it were a court order. The registration the clerk refers you as necessary is limited principally to employment tribunal decisions as per rule 70.5(2)

Joshua :

Accordingly you can proceed directly with enforcement application just with the evidence (An original copy I would suggest is necessary) of the Adjudicators order. If the clerk raises objections, direct her to rule CPR 70.5 which provides as above.

Joshua :

In terms of his address the CPR provides that you may serve him at his last known address.

Joshua :

This is satisfactory for service. Other than that you simply use the appropriate enforcement application form and attach your HMLR order.

Joshua :

Are you clear as to which form to use for the enforcement action you wish to take?

Customer:

I believe it is the N337 for Attachment of earnings, but I do not know which form to use for a charging order. If you could confirm the forms that would be great and I'll then decide which route to take?

Joshua :

This is the application form for a charging order:
http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n379-eng.pdf

Joshua :

You are spot on re the AoEO

Customer:

Thank you very much for your help.

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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