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Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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Hi there, I hope that you can help my husband and I. We urgently

Customer Question

Hi there,
I hope that you can help my husband and I. We urgently need find out where we stand on our Tenants rights, so if you can help us that would be great.

We have share of Freehold with Leasehold in a high-rise apartment building. We are being sued as Leaseholders by our own Freehold Company for unpaid service charge. We withheld the service charge after many years of wrangling because the Freehold company has made decisions not to maintain the roof above our top floor flat, whilst maintaining the roof and balustrading above the other two penthouse flats (making ours unsaleable), along with other decisions and ongoing rumour mongering that have isolated us and alienated us from our neighbours. They have said that they will not restore our roof space until we leave, however we cannot even sell because of the problem.

The County Court Claim was brought in 2012 on the strength of a single witness who at the time was concurrently the Director of the Freehold Company's Appointed Managing Agents and the Company Secretary of our Freehold Company. We had made it known to him and the Freehold Company in writing in 2008 that his appointment as our Secretary was illegal as our Company Articles state that "No-one other than an Owner may be Company Secretary"
He eventually resigned as our Freehold Company Secretary because I publicised this fact more widely at the AGM in June 2013.

That's probably all fine in Property Law right?!?!

Anyway, the ONE thing that we really could do with some advice on is this:

Part of our Tenants rights include:

"4. If your lease allows your landlord to recover costs incurred or that may be incurred in legal proceedings as service charges, you may ask the court or tribunal, before which those proceedings were brought, to rule that your landlord may not do so."

There are a myriad of other things we could do with clarifying but if someone could come up with an opinion on our prospects on that single matter, it would be helpful.

The Claim against us is for £10,025 and the Claim was being handled through the multi-track County Court process.

I have represented ourselves throughout and they were successful to get our Defence and Counterclaim was struck out at the fifth attempt - a trial date had been set before we were struck out on a paperwork technicality (we missed an 'unless order' that we did not understand). We are really sick of fighting and have attempted mediation however they were not interested in a fair settlement.

Their legal costs to date are £27,000 expected to rise to £45,000 during the course of one final case management conference and a final trial.

Given that our lease allows for us to ask the court to not allow the Freehold company to recover their legal costs as per the above clause, what is the likelihood of the court agreeing that the Freehold company may not do this?

Thank you in advance for any insight you can give us!

Best regards,
Submitted: 3 years ago.
Category: Law
Expert:  Nicola-mod replied 3 years ago.

I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.

I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!
Customer: replied 3 years ago.

Yes please, we really need an answer to this question.

Thank you,


Expert:  Nicola-mod replied 3 years ago.

We will continue to look for a Professional to assist you.

Thank you for your patience,
Expert:  Ash replied 3 years ago.
Hello my name is Alex and I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply, but rest assured I will be giving your question my immediate attention upon return You do not need to wait here as you will get an email when I reply.

Did you show the lease to the Judge that said you are entitled to recover costs please?

Customer: replied 3 years ago.
Yes my husband has raised this before with the judge in pre-trial hearings. However we misunderstood an 'unless' order after the fourth pre-trial hearing, and in May at the fifth pre-trial hearing we had our defence and counter-claim thrown out because we hadn't submitted the correct paperwork on time (my husband has done well up until now as litigant-in-person, and the judge has seemed sympathetic).. So now we need to know whether we just give up now and hope that the judge doesn't allocate us all the costs (because what we think is our tenants right to ask him not to), or whether he is 'bound' to allocate us all of their costs as we cannot defend ourselves. Or whether we appeal to have our defence and counterclaim reinstated. Ugh!

Expert:  Ash replied 3 years ago.
Ok. Did you apply to have your claim reinstated? If not you should.

Otherwise there will be a hearing. Based on the lease you can ask the judge to make no order in terms of costs. The lease is clear in that the sums are payable by the tenant, so yes I would agree with you.

Can I clarify anything for you about this today please?


Customer: replied 3 years ago.
We have not applied to have our defence reinstated because we are not sure we want to take the risk that we are allocated 100% of the costs of the claimant, plus then our own legal costs of applying to have our defence reinstated, and then it's successful we will need to pay lawyers plus barristers for the trial as well. It could end up costing us close to double the current costs estimate by fighting on for longer with a reinstated defence! So why do you think we should apply to have it reinstated? (FYI I do feel we should try to have it reinstated, but my husband is worried, so please give me a good reason why we should when all we can see is an escalating bill.)

If we do not apply to have our defence reinstated the next hearing is Aug 13th. I assume that hearing is to allocate costs because the judge ordered that the claimants prepare their schedule of costs, and we now have until July 3rd to file our response to their costs (without using our defence). So we need to know if at the Aug 13 hearing, is the judge allowed to exercise discretion in the allocation of costs or can he only allocate us 100% of their costs because we have no defence?

You indicated above that while the lease is clear that the sums ARE payable by the tenant, we do hand the right to ask him not to pass on their legal costs to us. In this case, where we have no defence currently, is he allowed to rule that we should not have those costs passed on to us?


Expert:  Ash replied 3 years ago.
Yes the next hearing would be for a costs hearing.

He can ask the court not to allow costs but you can argue you have a contractual right.

Does that clarify?


Expert:  Ash replied 3 years ago.
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