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I have been in conflict with my freeholders since 2011 when their gardeners destroyed substantial dense foliage in my garden which formed along with railings the boundary between my flat and a busy public alleyway resulting in a severe loss of privacy and security to which the freeholders admitted. They took absolutely no steps to rectify this and eventually I suspended service charges payments. Whilst this breached the lease from my side, they in turn were also in breach of the lease. 2 years later the matter went before the County Court where I acted in person. . I argued that I should be compensated for the loss of privacy and security. The lady District Judge dismissed the case immediately on the grounds that in my written defence I had stated that the claimants had been “wilfully negligent” but whilst they had been negligent they had not been “wilfully” so, and I ought to have got my pleadings right. Case dismissed. Frankly I don’t believe that those acting in person should be dealt with in this way. In 2013 a second issue affecting my enjoyment of the flat emerged. The leaseholder immediately above me had installed laminated wooden flooring in her flat for which she required written permission from the freeholders but she had not laid any acoustic underlay and the resulting noise nuisance was intolerable. Matters repeated themselves : to the head of the Management Agents I sent e-mails, recorded delivery letters and unanswered phone calls to his office requesting the acoustic specifications. When after several months there were no replies I reported this to their solicitors who astonishingly refused to let me have the identities of the 12 directors of the freeholders’ company. I did discover one director called Eddington who undertook to report the matter to the directors at their next meeting, but nothing resulted from this. Again I have to say I felt let down by the bench. There were 3 preliminary hearings before separate judges : 1] the first bad-temperedly asked me if I was making a counterclaim or seeking compensation and when I said I couldn’t quite grasp the distinction. Then he said how on earth was he expected to work out what compensation there should be. Then why was I going after the freeholders when it was the leaseholder above making the noise. I said this required looking at the lease. Basically the Judge said we didn’t have time for all that and ordered me to send to the court a submission to show the freeholders were responsible. 2] Judge 2 was amazingly frank and told myself and their solicitor that Judge 1 had been talking a lot of gibberish, an expression he used several times. The freeholders over 4 years had not once addressed two serious issues involving noise nuisance and loss of privacy and security. It was, he stated, a hopeless failure to perform and criticised them for having turned down the mediation process. 3 : District Judge 3 was brusque coming on rude. The heart of the matter was that I could show that in the lease there was a landlord enforcement covenant in operation which obliged the freeholders to take action upon being made aware of a complaint which they had not done. But not once in the hearing did Judge 3 make any judgement on the merits or otherwise of my submission. He concerned himself only with making hostile petty points against me which smacked heavily that he had improperly pre-judged the case, for example : • As I said above I had exchanged correspondence with Eddington which proved feckless. The Judge said that I ought to have addressed the Directors of the claimant company at their registered address, and by not doing so my case was thereby wanting. The claimants had refused to reveal to me when exactly the new regulation/covenant stating that leaseholders required written authority. So the Judge encouraged by the solicitor said that there was no proof as to when the new regulation/covenant came into force and there was therefore no proof that my claim did not fall foul of the Limitation Act. • His final jibe was that I had not quantified a quantum of compensation or counterclaim. I had been ordered to answer the question as to why I believed that the freeholders should be accountable and not the errant leaseholder. This would have been a matter raised in a final hearing. It should not have been raised in a preliminary hearing. On these bases he set aside my counterclaim. I question this without the landlord enforcement covenant being considered. He set aside my counterclaim and gave costs of £1800 to the claimants and said if I wanted to take matters further it was open to me to take a case against them. The main question I would like to put to you is whether I should be advised to take a case against them or not. I would appreciate your advice. JEREMY XXXX
Well I am very anxious to get an answer, so will hang on hoping it may not be too long. Regards, Jeremy
Dear Nicola, Thank you for your reply re continuing to look for someone else to assist me. Does that mean that that person will not be you? do I need to send any further information from my end? I only ask because I had to omit some salient matters to fit into the length of words allowed in the question. Regards, Jeremy
I am getting a bit anxious about progress..... Any news? Jeremy
Well, unless you are confident that you could find somebody in the next 7 days I think there may be case for closure. Jeremy
Perhaps I could assist if I cut my question to a barest minimum - I am questioning the conduct of 2 District Judges when I was acting in person.
1] my freeholders’ gardeners remove negligently dense foliage which formed the boundary between my garden flat and a busy public alleyway causing, at the freeholders’ own admission, serious compromise to my privacy and security. They fail to make any rectification. After two years I suspend payments of service charges. The matter goes to Court and I plead that the freeholders had been wilfully negligent. The District Judge immediately throws the case out on the grounds that they had certainly been negligent, but not wilfully negligent. I ask her to make an order that they rectify the damage, which she refuses.
2] A further two years go by and the freeholders repeat yet further damage. Again the matter goes to Court. This time the Judge says the issue has already gone to Court and finds against me. I say that this is a new and separate incidence of damage and it should be adjudged as such, otherwise the Judge is giving open license for ever to the freeholders neither to rectify the damage or fear the consequences of further damage.
3] There is further conflict with the same freeholders : the leaseholder immediately above me had installed laminated wooden flooring in her flat for which she required written permission from the freeholders and the resulting noise nuisance was intolerable. The freeholders would not send me the acoustic specification they required. Again I suspended payments of service charges and lodged a counterclaim. At a preliminary hear I was ordered to send to the court a submission explaining why I was going after the freeholders and not the leaseholder above. The heart of the matter was that I could show that in the lease there was a landlord enforcement covenant in operation which obliged the freeholders to take action upon being made aware of a complaint which they had not done even after a year since my complaint. The second hearing was also a preliminary and with a different judge. I was expecting to be able to cross-examine the claimants, buut only an agency solicitor appeared for them and effectively the judge did not listen to the landlord enforcement covenant case. Instead he nit-picked : I had written to one of the directors of the freeholders whilst I should have sent it to their registered office, and secondly as it was not known when the errant leaseholder had had the flooring installed I could have been out of time per the Limitation Act. He gave judgement to the claimants and struck out my counterclaim and ordered me to pay costs. Should there not have been a final hearing.
What do you recommend I should do on these matters? JEREMY WATT
I think we should call it a day now. Perhaps you could return the £38 fee. regards, *****
It seems clear now that I am not going to get an answer to my original question. Could I get my £38 worth by asking a much simpler question on behalf of a friend of mine. He has had an acrimonious divorce some years ago and his ex-wife is now refusing to tell him of the whereabouts of their daughter who has moved out of England. What legal recourse might he usefully take? Final regards,