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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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I need to seek an order performance - having given

Customer Question

I need to seek an order for specific performance - having given up my interest in a partnership and handed the keys over pursuant to a formally mediated settlement (and withdrawn notice of dissolution served on the partnership and discontinued previous court proceedings all as part of the mediated settlement) the former partners are now refusing payment for specified sums on specified dates with time having been expressed as being of essence in relation to the agreed payments. Having given up my interest and equity share I am now left with no income or access to funds and their breach is having grave consequences. If left unremedied it could result in financial and ultimately professional ruin.
When chased they replied that I should think about performing my own obligations, suggesting a breach on my part, but will not tell me what the alleged breach is and how they are relying on it to withhold payment. They have given me no notice of a breach on my part and no further details even after having been asked to stare clearly what the alleged breach is.
I have given value by handing over my interest in the business. Their refusal now puts me in a grave position.
Submitted: 1 year ago.
Category: Law
Customer: replied 1 year ago.
Is this possible and how do I go about it?
Customer: replied 1 year ago.
(Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Customer: replied 1 year ago.
***********
Customer: replied 1 year ago.
I was led to believe this is a live service and the replies would be pretty quick? Should I just sit here staring at the screen - I really need an answer so I can prepare for tomorrow morning. Thank you.
Expert:  Ash replied 1 year ago.
Hello my name is ***** ***** I will help you.
How much is owing please?
Alex
Customer: replied 1 year ago.
Hi
£3000 was due on the 25th January 2016 and a further £31000 due on the 29th in both cases time expressed to be of the essence. A further £75000 is due on 20th April 2016 and a final payment of £38000 on the 20th April 2017. Though I am now concerned about those later payments my immediate priority is the total of £34000 currently outstanding. These are payments for me retiring and them effectively buying my share interest and rights. My share interest and rights have now vested in them and I am left without any income so their refusal to pay is causing severe hardship and distress.Can I ask please that you email me on my direct email as this was not accepted when I first registered my query and I had to use my wife's email. My email is***@******.***You will appreciate the urgency.
I can send a copy of the Retirement Deed if that will help?Regards.Ajmal
Expert:  Ash replied 1 year ago.
So you want an order for the payments? Does the person have any assets?
Alex
Customer: replied 1 year ago.
They are partners at an established law firm. They have assets - being able to enforce a judgement is not something that worries me. At the least any judgement would be the start of bankruptcy if they do not pay up - the mere risk of losing their professional standing is sufficient. My immediate concern is whether I can seek an emergency / urgent remedy in view of the hardship being caused by their default. Normal proceedings for breach of contract and a monetary debt is of little comfort to me in my current position.
Expert:  Ash replied 1 year ago.
What is it you want specific performance for? The financial side?
Alex
Customer: replied 1 year ago.
Yes - the current £34000 which is now overdue having been expressed with time being of the essence. If that is not possible what can you recommend i.e an order to revest my share and interest and rights in me so I can continue to have an income?
Expert:  Ash replied 1 year ago.
Sadly you cant make them pay it and get an order for that. You have a Tomlin Order which means it can be enforced by either winding up the partners (assuming its personal liability), charging order on property, bailiffs etc.
If its against the LLP then you would wind the LLP up. As for reinvesting your share etc, that wont be possible. You have a mediated settlement and as such that is a contract. You can sue for breach of contract but the Court is unlikely to order its reinvested, but you could take enforcement action.
But that is all you can do at present, seek enforcement of that contract. I am sorry if this is not necessarily the answer you want and certainly not the one I want to give you, but I have a duty to be honest.
Can I clarify anything for you about this today please?
Alex
Customer: replied 1 year ago.
It is a partnership not an llp - the agreement has personal liability expressed to be joint and several.Can you elaborate please on what you mean by a Tomlin Order an exactly how I can enforce? Even if no urgent remedy is available it would be helpful to know what kind of steps I should be looking at going forward. Can I apply for a winding up order and / or instruct bailiffs without having to establish debt in court? If so that could be preferable to the delays of court proceedings. Any practical steps as opposed to the court process?
Expert:  Ash replied 1 year ago.
I personally would issue a statutory demand against the partners. If they do not pay/apply to set aside within 21 days then you can petition them to become bankrupt.
As this was a settlement award it would be very hard to get it set aside. That is what I would do.
Does that help?
Alex
Customer: replied 1 year ago.
Thanks - a 21 day deadline to focus their minds will be better in short term than prospect of full on court proceedings. In your experience what is the possibility of them relying on a minor term claiming breach (assuming they could establish breach on my part) to set it aside? Would the statutory demand give more priority to the debt payable over any claim by them of a non financial breach on my part - they have refused to tell me what breach they are referring to or relying on so I am just trying to think ahead. I think we are nearly there!
Expert:  Ash replied 1 year ago.
They would have to show there was a genuine dispute over the sums due. I can't see that being the case as the settlement was via mediation.
It will focus them!
Can I clarify anything else for you?
Alex
Customer: replied 1 year ago.
That's great - so the setting aside would only apply if they showed a genuine dispute on the sums due and the dates ..for example a failure to give due consideration on my part for the said sums? Would you be kind enough to cast your eye over the Deed just to be sure I am not missing anything? Thank you - I think I already see the short term way forward.
Expert:  Ash replied 1 year ago.
Correct.
I can look at the Deed but that would be an extra service, I will send that offer now.
Alex
Customer: replied 1 year ago.
AlexI am happy to agree the £43 but before I accept can I ask how experienced you are and the number of post qualified years you have? I would like some idea of what I am paying for - trust you will understand.
Regards.
Expert:  Ash replied 1 year ago.
I am 9 years qualified.
Alex
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience: Solicitor with 5+ years experience
Ash and other Law Specialists are ready to help you
Customer: replied 1 year ago.
I have accepted your offer but can not seem to add file - do you have an email address I can use?
Expert:  Ash replied 1 year ago.
Can you attach it here.
Alex
Customer: replied 1 year ago.
Did the Deed go through?
Expert:  Ash replied 1 year ago.
No. Please email it to:***@******.*** - it can take a day or so for admin to forward it to me.
Alex
Customer: replied 1 year ago.
Sent via email.
Customer: replied 1 year ago.
The only provisions which I can think of (only guessing as they have refused to say) are clauses 5.2.1 and 9.2 - on the first I have had no dates as to availability of their IT consultant. In any event there is nothing on the laptop which would cause them prejudice or prevent trading etc other than a remote access link which is probably now obsolete as it should have been disabled from the servers. On the second clause I can not comment in any way without full details and supporting evidence - surely they will be put to strict proof if that is what they allege me to have breached? Will either of these amount to a substantive dispute which would entitle them to set aside a statutory demand?Is there a risk that the statutory demand is seen as an abuse of process, bearing in mind that if they do not tell me what breach they claim on my part I can not be expected to know what it is they are relying on?
Expert:  Ash replied 1 year ago.
Yes this seems ok. Its clear in terms of what is due to be paid when.
Alex
Customer: replied 1 year ago.
Having reviewed the Deed, I take your answer above to mean that they are unlikely to have grounds for setting aside and there is no risk of a statutory demand being seen as an abuse of process? Is this something I am able to instruct you on? What would the costs be?
Expert:  Ash replied 1 year ago.
Unlikely to be able to set aside. Sadly I cant be instructed as this is a question and answer site.
Alex
Customer: replied 1 year ago.
Can I not instruct you at your firm direct?
Expert:  Ash replied 1 year ago.
You could but I am not permitted to disclose it on here. Against site rules.
Alex
Customer: replied 1 year ago.
How can I contact you ..are you at least able to give your full name?
Expert:  Ash replied 1 year ago.
Sadly not.............
Alex
Customer: replied 1 year ago.
I don't understand - you said I could instruct you direct but you can not provide contact details?
Expert:  Ash replied 1 year ago.
If you came to my offices off the street you could instruct me, but not through the site I am sorry to say.
Alex
Customer: replied 1 year ago.
Can I know the name of your firm so I can make an appointment?
Customer: replied 1 year ago.
Ok I think I understand how the site works. Can you tell me if the statutory form can be downloaded from the court website and if not where can I get hold of it? Will I need to do one for each person separately citing the full £34000 against each or can all three be named in one demand?
Thanks.
Expert:  Ash replied 1 year ago.
Yes if you google search the form it can be downloaded. You would name each on each demand, so one for each.
Alex
Customer: replied 1 year ago.
Thanks - presumably stating the full £34000 on each instead of one third each? And serving at their place of business will be ok?
Expert:  Ash replied 1 year ago.
Correct full amount each. It should be personal service so at work is fine, but must be handed to them.
Alex

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