can you be forced to sell your house to pay legal fees?

Posted by: ARC on 16 February 2004

My brother is in a bit of a mess as he has a very large bill to pay in court costs having lost a claim for compensation. The only way to pay it is to raise the capital against his house, however, the amount he would need to borrow may be greater than most reputable lenders would give. My question is therefore can you be forced to sell your house to pay such fees? In addition there were some stories recently on the news about mortgages without proof of income does anyone have any experience of these?

Oh dear what a pickle.

Brendan
Posted on: 16 February 2004 by Justin
Your brother's legal fees put his lawyer in the position of a creditor of your brother, just like any other creditor he might have. It is up to your brother to decide in what manner he wishes to raise the funds, and really, whether he wishes to pay them over in the first place.

Were he to refuse (or cannot) pay them, his attorney can sue him for the fees and collect under a judgment. Not sure how it works in the UK, but your brother could then, if he is so inclined, file for creditor protection which would "rank" his creditors and pay them some portion of thier debt in a prescribed order based on thier priority by ordering the sale of your brother's assets.

Now, whether his house is protected from attachment to the "bankruptsy estate" (this is what we call it in the US) will depend on his law. Some jurisdiction include the primary residence (all include any secondary residence) and some don't (a so-called "homestead exemption"). Whether your creditor relief laws protect the house is a matter of the law in your jurisdiction.

Good luck.

Judd
Posted on: 16 February 2004 by Tarquin Maynard - Portly
quote:
Originally posted by Justin:
Not sure how it works in the UK, but your brother could then, if he is so inclined, file for creditor protection which would "rank" his creditors and pay them some portion of thier debt in a prescribed order based on thier priority by ordering the sale of your brother's assets.


quote:


Now, whether his house is protected from attachment to the "bankruptsy estate" (this is what we call it in the US) will depend on his law. Some jurisdiction include the primary residence (all include any secondary residence) and some don't (a so-called "homestead exemption"). Whether your creditor relief laws protect the house is a matter of the law in your jurisdiction.

Good luck.

Judd


Judd AFAIK neither of these solutions are valid under UK law - filing for Section 10 protection, I think you call it.

My understanding is that although he cannot be forced directly to sell his house to pay the fees, he can be sued and assuming judgement is given against him, he could be made bankrupt. The lender would then foreclose on the mortgage, sell his house and proceeds after repayment of the mortgage would go to his Trustee in Bankruptcy. The legal fees would rank as an unsecured, non- preferential creditor. having said that, if the house in joint names and particularly if their are children or the spouse was not party to the action, this course of action may not be feasible.

Now that is hardly good PR for any law firm. First thing to do is get down to a Citizens Advice Bureau sharp; see what they have to say ( I may be well out of date ). I would also question who put your brother up for these proceedings; was he not aware of the risk of loss?

Regards

Mike

On the Yellow Brick Road and Happy
Posted on: 16 February 2004 by Justin
there's no creditor protection in the UK? Well, it doesn't make a hell of a lot of sense over here in any event, so you're probably better without it.

Judd
Posted on: 16 February 2004 by Haroon
ARC

You brother should negotiate a repayment plan with the solicitors, they are very likely to accept some sort of arrangment because if it went to court the judge would only try to make a payament plan anyway + its saves everyones time and cost. He could repay all in a repayment plan or raise part against his house and the rest in a plan.

If the solicitors refuse some kind of arrangement I could only see the judge taking a dim view of them. A judge will only declare bankruptcy against him in the last course, or unless he is really willing to, even then I think the mortgage company will keep his mortgage but will just charge more interest - he becomes a more 'interesting' customer for the bank Roll Eyes

Anyway, I could be wrong too, so like mike said your brother needs to talk to citizens advice bureau and any debt councellors in the Yellow Pages.

Hope things turn out well for your brother.
Posted on: 17 February 2004 by Tom F
quote:
he has a very large bill to pay in court costs having lost a claim for compensation


Can we be clear here: what does he owe to whom? If he has had costs awarded against him by the court in judgement then he needs to find the money quickly. Having gone to court, the other side may not be very sympathetic to his plight and will chase as hard as they can to recover the full amount of the judgement. Fighting this will incur further costs with his own lawyers.

If it is 'just' his lawyers' fees, then he will need to speak directly with them about payment of these. 100% recovery of fees is rare and there is always an element of write-off, but this does reduce profits of the firm. That said, most firms do not set about suing for fees since it costs them to do it, is very time consuming and is not a good way to advertise the litigation practice. Note that, if he disputes any part of the fees, he should contact the firm and, if he gets short shrift, the Office for the Supervision of Solicitors.

If there is sufficient equity in the property, it may be possibloe to remortgage, but ability to keep up payments is paramount. Maybe selling and downsizing would be a good option. Definitely better than being made bankrupt and forced to sell the house (which is the more expensive option, given the fees charged by the trustee in bankruptcy).

Hope it all works out for him.
Posted on: 17 February 2004 by ARC
Thanks for all your comments. As it stands at the moment my brother's solicitor has stated that he could sue to get the bill reduced as it appears excessive. On what basis this conclusion is drawn I do not know. The issue with doing that is the additional costs that may be incurred, his legal aid would not cover his fees for such a claim and he may incur more costs for the other side. My brother thinks that this would be a mistake but is likely to follow the advice given to him by his solicitor.

As for some other points, when considering an appeal to the original judgment he asked his solicitor if he could be forced to sell his house to pay costs. She stated that no judge in the land would force that so he made an appeal. The appeal part is his only regret as it added around 50% to the overall costs and if you read the judgment on the court website there was not much chance of a win.

My advice to him has been to remortgage if he can to draw a line under it. Suing to get the bill reduced and incurring more costs would more than likely put any hope of keeping his house in doubt. It is a pity that there isn't an independent body who can assess court costs for free if the is a dispute as additional suing seems pointless.

Brendan
Posted on: 17 February 2004 by Tarquin Maynard - Portly
Brendan

You are not giving the full picture here.

Your first post reads as if your brother made a claim that did not succeed. Now it looks as if the case has been made *against* him. If it is a business transaction then presumably your brother has professional indemnity and other business insurances against these eventualities.

If the debt is against a limited company, then it is not against your brother - the "Veil of Incorporation" comes into effect ( Saloman vs Saloman and Co, ?1897 ) Your brother is not the limited company. As the company does not own the house.... etc etc

You now mention his "legal aid".

Before you get people to post further perhaps you can give the full story as any advice may well not be appropriate.

Regards

Mike

On the Yellow Brick Road and Happy
Posted on: 17 February 2004 by ARC
Sorry for being a bit vague, I’m trying to post whilst at work which limits the time for detail.

As background:

My brother was standing on some scaffolding (the moveable sort with brakes on the wheels) when following some typical building site banter a second person pushed the scaffolding over. He ended up with a broken wrist and has been left with restricted use of his hand. Following a visit to the CAB he was advised to consult a solicitor which he did. The outcome was a claim for compensation (having been granted legal aid for his costs) against his employer on the basis that the scaffolding was unsafe. If outriggers had been used then it would not have been possible for the scaffolding to be pushed over. He lost his case and from the information that I have believe it was due to two main reasons:

1) The judge did not feel that the course of events were clear and my brother’s account was inconsistent under cross examination.

2) His side failed to gather suitable evidence to demonstrate that having out riggers fitted to the scaffolding would have prevented it from being pushed over.

He was advised to go to appeal, which he did but the outcome was the same, it could not be demonstrated that the scaffolding was unsafe and that operating with additional out riggers would have prevented injury. I’m sure that he was aware of the likely costs involved against him should he loose. However, at the time as he was unable to work due to the injury whether the bill was £20K or £35K didn’t seem relevant. In addition the prospect of a successful claim I’m sure clouded his judgment. Now about 14 months later he is working and back on track to some extent the bill is of great significance.

So in summary he does not owe anything to his team but owes costs for the other side amounting to about 2 years worth of his gross income. Fortunately he does not have a wife or any dependants so there are no further complications in that sense. Downsizing would be a good idea but the house that he owns is already at the bottom of the property ladder and relative to the amount owed would not help significantly. Should he have to sell it is extremely unlikely that he will ever be able to own a house again as his potential earnings are restricted due to his injury and house prices so high.

Thanks for all your help

Brendan
Posted on: 17 February 2004 by Markus S
35 k seems high.

Another thought: did your brother's lawyer advise him properly on the prospects of the appeal? If not, the lawyer possibly could be held responsible for part of the costs.
Posted on: 17 February 2004 by Roy T
I would like to suggest that your brother may wish to seek medical advice as at this rather stressful time in his life depression triggered by financial and legal worries are something he could well do without.

Roy
Posted on: 17 February 2004 by bigmick
If this case has been ongoing for a significant period of time and the employers have instructed a city firm then the fees may be plausible, but given the nature of the incident and the injuries sustained this seems excessive. I would have assumed that your brother's solicitor already had a copy of the bill. If so, what does her costs draftsman say? If not,get her to get a copy of the drawn bill and let their costs draftsman have a look for points of dispute before asking the court for a detailed assessment. Most bills are knocked down a bit so it's likely that they've bulked the timesheets; though that would be an admirable amount of bulking. The allocation questionnaire does ask for a guide figure for costs and statement of costs are menat to be served before the hearing. It would be interesting to see if they've overshot hugely.

If the case was so weak I'm astonished that it got past not only the solicitor but counsel and LSC caseworker reviews. She's probably covered herself with attendance notes but it may be worth your brother getting onto the OSS to have them take a look at whether the weaknesses of the case and the risks were adequately explained to your brother.

Apart from getting a look at this bill, your brother ought to really stay clear of anyone who is going to have him on the clock. He should get himself to a voluntary debt adviser or CAB as advised above and he should keep a look out for a money claim or worse a Stat Demand which may well be winging his way. He'll need to get this set aside and agree a payment schedule with the creditor. The house isn't automatically at risk but a successful stat demand will put everything in play and to be honest I'd be surprised if the creditor didn't look for a charge on the property regardless. No dependents means it'll be an easy grab, though the amount of equity will determine of it's a worthwhile grab. None of us can ever see the whole picture on a forum like this and it's been a long time since I've been involved in this area. so again tell him to get his timelines on paper, organize all the relevant paperwork accordingly and get sat down opposite someone who knows what they're doing and appreciates the urgency of all this and most of all who won't drill him for more cash.

I have to say that something doesn't seem right about the way this whole thing played out. Still, did you say that the judgement is online? Do you have the link?
Posted on: 17 February 2004 by ARC
Hi,


Thanks for further input.

Not sure how to post a link but the appeal judgment can be found at this site.

www.courtservice.gov.uk/View.do?id=1381&searchTerm=horton&ascending=false&index=1&maxIndex=3


Brendan
Posted on: 17 February 2004 by bigmick
Just had a look at that. Pointless even discussing the merits of the case but that was a very tough break and the respondents obviously had the bit between their teeth on this technical point and the funds to risk in proving it. I've seen much weaker cases than that settle nicely so difficult to criticize your brother or his advisers for taking it to the wire. Would have been safer to have W co-joined but 20:20 hindsight. Anyway, don't let your brother stall waiting for forum opinions and get him talking to someone ASAP. And obviously get someone to have a look at the bill.

FWIW, self-cert mortgages, speak to Charcol.
http://mortgages.charcolonline.co.uk/bestbuys/bestbuytype.asp?bestbuytype=9&linkfrom=freeserve
Also, even though Northern Rock claim to have stopped doing them, a broker may be able to help on this.

[This message was edited by bigmick on TUESDAY 17 February 2004 at 18:53.]
Posted on: 17 February 2004 by ARC
bigmick,

Thanks for taking the time to take a look at the judgment. The way it went seems very harsh on my brother but there is nothing that can be done to change history. He has an appointment with the solicitor looking after the case on Thursday pm which I hope to attend as well. I'm not sure what to ask but I've had a look on the law society website about bill disputes so some of those issuews would be a good place to start.

Brendan
Posted on: 18 February 2004 by Tarquin Maynard - Portly
quote:
Originally posted by Patrick Dixon:
[ a bit like suing your employer for not providing a bullet-proof vest after someone shoots you in your office!

...


Unless you Office was a Challenger 2 tank. RIP Sgt Roberts.
Regards

Mike

On the Yellow Brick Road and Happy
Posted on: 18 February 2004 by ARC
Patrick,

I agree with you, holding the company responsible for the scaffolding being unsafe when it was the deliberate act of an individual that caused the injury would be harsh. I don't know the full facts as to how it was decided to take action against the company rather than the individual so can't really comment. I can only summise that the claim was conducted on the basis of the advice of my brother's own solicitor.

I'm going to try and find a way of getting the bill examined without incurring any more costs. Without understanding the systems involved we are hostages to fortune or in this case misfortune.

Brendan
Posted on: 18 February 2004 by bigmick
In common law there can be a vicarious liability but if the act is remote from the job scope then it falls down. There is also an implied term in employment contracts that the employer shall render reasonable support to an employee to ensure that the employee can carry out the duties of his job without harassment and disruption by fellow workers, but you need to prove a background on this and knowledge by the employer. It's difficult and it's easy for me to say sitting here that I may have co-joined W but I'm guessing that all avenues were explored by your brother's solicitor and had I all facts to hand, I can't honestly say that I wouldn't have taken the route that they did. Statute of limitations rules out starting a new action against W.

I'm just thinking out loud and TBH this can't help your brother's case now and I have to confess that I left "high street practice" 14 years back and even there did little Legal Aid work, but I can't recall ever hearing of a legally aided plaintiff being ordered by the courts to pay the defendant's costs; especially where there was no question of mischief in the claim and it could have gone either way. Am I therefore right in assuming that there was no legal aid cert to cover the appeal?

You can try to see where they spelt out to your brother what the financial risks are, but really this is diverting from the real issue. I reckon that your brother needs to steer clear of any more significant expense, get this bill looked at and strike a deal with the creditors. Bloody awful for both of you and I'm sorry to hear about it.
Posted on: 18 February 2004 by ARC
bigmick,

My brother had a legal aid certificate to cover the original case and his appeal. All £35K are costs of the other side for the initail case and appeal. I presume that the judge must have ordered my brother to pay these or does the other side have rights to just claim costs anyway. I'm going to try and find some information on having to pay costs for the other side whilst being on legal aid yourself, maybe that will help.

Thanks for the info, much appreciated.

Brendan
Posted on: 18 February 2004 by bigmick
Just to clarify.

The court can make whatever costs order it sees fit, it's just that I can't recall such an instance. Your brother's solicitor will have a copy of the order and you should get one from him. There's a means test element to legal aid and I fail to see how it could make sense to order all of the other side's costs against someone who the legal aid board agreed did not have sufficient resources to fund his own action. Though sense and the machinations of this country's legal funding system are rare bedfellows. Most legal aid applicants would run a mile if they thought that they might be exposed to the kind of liability we are discussing here. You can't get feathers off a frog; as they say.

Unfortunately I can't think of anyone I know to ask who has dealt with legal aid in years.
Posted on: 20 February 2004 by ARC
According to my brother's solicitor the costs follow the looser and that's that. In reality it appears to be the insurance comapny trying to recover costs against my brother. What she recommended was that the bill is sent for assessment at court as £35K in her opinion is excessive. This is particurly based upon the legal aid bill for the claim on my brother's side that was around 50% of £35K. She is happy to instigate this FOC and the costs for the court hearing will be minimal and nothing if the other side's costs are deemed excessive.

So its back to court for my brother but at least he has some time to try and improve his financial situation to make a payment once the figure is finally settled.

If there is something to learn from this it is to take out an insurance policy against costs incurred even if you are on legal aid. It advises this on the legal service commision's own website. My brother wasn't advised to do this and that was a mistake.

As for "can he be forced to sell his house" well it is not 100% clear but it appears that as it is worth less than £100K it is very very unlikely. The insurance company can however put a charge against it but that's for the future.

Thankyou for all your comments they certainly helped my brother and I to ask the correct questions of his solicitor.

Just as one last point, why wasn't the bloke who pushed the scaffolding over sued? He didn't have a pot to pee in as it were so it just wouldn't have been worth it. Shortsighted maybe but them's the brakes.


Brendan