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UK-Justice
UK-Justice, Barrister
Category: Property Law
Satisfied Customers: 16193
Experience:  Called to the Bar in 2007
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I have an ongoing case for over a year with commercial landlord.

Customer Question

I have an ongoing case for over a year with commercial landlord. Spent nearly £17,000 so far as it is quite complicated. I am suing landlord for loss of business and protection of lease under Leasehold Act. I believe landlord is trying to sell his only tracable asset, i.e. the lease of shop we are trading from before court case is resolved. I have spent £40,000 on refurbishments, fixtures and fittings and am confident we will win the case what now realise that the Defendants do not have any other assets to enforce judgment. The houses they live in are belong to someone else. My question is can I apply or an ex-parte injunction in the County Court and refer the Judge to the existing case and ask for an order restraining the defendants from selling the lease to someone else until such time the case is concluded?
Submitted: 3 years ago.
Category: Property Law
Expert:  UK-Justice replied 3 years ago.
Thanks for your question, I will do whatever I can to help you. Please remember to rate my answer SMILEY FACE OR ABOVE.

Do you have evidence that he is trying to get rid of them?
Customer: replied 3 years ago.


A conversation on the phone and people coming to the shop not interested in buying anything but discreetly interested in the shop itself.

Customer: replied 3 years ago.

Still waiting for response..thanks

Expert:  UK-Justice replied 3 years ago.
If there is an existing case and you think they are doing this on the basis that the asset is being got rid of on purpose then yes, you can apply for an injunction.

You need to complete form N16a

You can apply for an interim injunction. The matter will then he heard without notice.

If granted (you actually want a freezing order in terms of the asset) then there will be a further hearing whereby representations will be made by both sides.

This is because you can't have an injunction without input from both sides.

So there will be 2 hearings:

1) interim ex parte injunction
2) further hearing for injunction

So yes, you can apply for a freezing order.

I hope this helps.



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Customer: replied 3 years ago.

Thanks. I would be quite happy with just an interim injunction till court case in May/June this year. Can I register a caution at the land registry if granted.


Also can I do this at the magistrates court as county court is £150

Expert:  UK-Justice replied 3 years ago.
No - this has to be County Court.

Once granted it can be sent to the Land Registry.

It will be along the lines of: No disposition of the estate can be made without permission of the Court.

It will be a restriction.



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Customer: replied 3 years ago.


Thank you. I have looked at Form N16a which is a general form for injunction. Does this form also include ex-parte and interim?

Expert:  UK-Justice replied 3 years ago.
You would put that in the witness statement attached to it and when you write to the Court.

You will say it is without notice.





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Customer: replied 3 years ago.

Thank you. Do I refer Court to existing case claim no or do I have to do an affidavit citing the whole details of the case.


Also how long is it likely to take to get interim injunction.

Expert:  UK-Justice replied 3 years ago.
Yes, you need to put the existing claim number and say that it is an injunction in existing proceedings.

Normally around 7-14 days to get it listed.



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Customer: replied 3 years ago.


Thank you. In my Affidavit in support, I am thinking of stating the costs I have paid to solrs. so far £17k so and the shop is the only asset the defendants have, would that help me?

Expert:  UK-Justice replied 3 years ago.
Yes it would.

You can't apply for security to costs but can ask the court for an injunction to stop it being sold.



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Customer: replied 3 years ago.


Thanks. I note what you say but wanted to make court aware how far thecase has gone and how much I spent or should I not bother with this point at all.

Expert:  UK-Justice replied 3 years ago.
Yes.

You will be making an application in existing proceedings.

The court will be aware for the case, but you can put about costs etc in your application as evidence.



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Customer: replied 3 years ago.


Just emailed my solictior with my intention and why I am doing it to save costs but he disagrees. Please read his reply as below which differs from your answer. I am prepaed to give cross undertaking in my affidavit because of what he states.


 


Now I have two different opinions.


 


 


 


"Whilst I appreciate your frustration, my view is that you are not entitled to such an injunction


 


The case has yet to be decided and therefore you do not have a monetary judgment to enforce against the Defendant’s assets; accordingly, any such application would most likely fail and only serve to increase your costs


 


In order to obtain an injunction, it is necessary for the applicant , or you personally, if the company has no assets, or those assets are limited in value) to provide a cross-undertaking in damages i.e. ultimately, if it is proven that the applicant was not entitled to the injunction, then the applicant has to financially compensate the respondents – for the delay you have caused to the assignment of their lease)


 


Further, there is the risk that the Court will enquire as to how you, the Claimant will pay any adverse damages award, or costs order. If the company has no assets, or those assets are limited in value, then the Court may order you to personally provide security, which could be in the form of a payment into Court"

Expert:  UK-Justice replied 3 years ago.
There is nothing stopping you applying for an injunction.

As I said this is a freezing order for security of costs.

Whether the court grants it is a different matter an is a decision for the judge.

You also have to undertake to pay damages if it turns out the order was not warranted

But nothing stopping you making it.






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Customer: replied 3 years ago.


Sorry I am not clear now. Should I apply for a freezing order in the County Court for security of costs with me also giving an undertaking. If so, do I fill out N16a together with affidavit? I thought freezing order app. can only be done in High Court.

Customer: replied 3 years ago.


Sorry I am getting a different answer from you. My solr. says as the claimant it is not possible for me to apply for security for costs?

Expert:  UK-Justice replied 3 years ago.
Yes you can apply to the county court.

But whether the court grants it is a different matter.

You can apply that he does not dispose of the assets pending out come of this.




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Customer: replied 3 years ago.


My solr. totally advises not to go with this course of action as it might go against me as the def's solicitors could also apply to freeze my assets or give a personal undertaking (limited company at present).

Expert:  UK-Justice replied 3 years ago.
Ok, it's a matter for you........

I have given you the answer to your question.





Expert:  UK-Justice replied 3 years ago.
I'm just following up with you to see how everything is going. Did my answer help?

UK-Justice

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