a guide to tolata claims - pump court chambers
TRANSCRIPT
A Guide to TOLATA ClaimsJack Rundall
First step : obtain the conveyancing file
The transfer form
– The first document to look for in the file
– TR1 (transfer of whole), TP1 (transfer of part) and form JO (post Nov 2012).
– Pankhania v Chandegra [2012] EWCA Civ 1438, express declarationwithin the transfer form or a separate deed of trust will be bindingabsent fraud, duress or mistake.
– Ensure you’ve seen the version filed at the Land Registry as draft versions in the conveyancing file may differ.
TR1 / TP1
Form JO pt 1
Form JO pt 2
Step 2: Look at the correspondence…
– Look at the correspondence between the conveyancer and the parties. For example, does it explain:
• Why the property was purchased in the sole name of one party when funds came from both?
• Why a property is in joint names?
• Why a property is in joint names without a declaration of trust if one party put in more money than the other?
• If not, why not? Did the conveyancer ask appropriate questions?
Step 3 : Look at the bank statements
• A safe haven for family lawyers!
• Establish who contributed what to the purchase price and where themoney came from.
The Practice Direction on Pre-Action Conduct
• Ensure the case is clear before issuing, don’t just begin proceedings so that the court sets a timetable.
• There is no specific TOLATA pre-action protocol but failure to follow the general Practice Direction on Pre-Action Conduct may be taken into account in costs.
• The PD requires the parties to:
(1) Exchange sufficient information to comply with the objectives set out in the PD ;
(2) Consider ADR;
(3) Disclosure any key documents.
• Normally achieved by sending a Letter of Claim to the Defendant containing:
• The basis of the claim;
• A summary of the relevant facts;
• The Claimant’s objective;
• Where money is sought, how this has been calculated.
• The defendant should respond between 14 days and 3 months.
Equitable Accounting• The process through which the parties invite the court to adjust the payments made to each of them
from the net proceeds of sale.
• When does an account from? Probably, from post-separation only.
Equitable accounts commonly include:
1. Mortgage payments :• Interest (and maybe) capital often offset against occupation rent.
2. Occupation rent :i. No need for forcible ouster but there must be constructive exclusion (Murphy v Gooch).
ii. Consider the purpose of the trust of land (Stack v Dowden).
3. Building Work post-separation:• Re Pavlou – generally the defendant may seek to be credited with the lesser of (a) the
relevant % increase in the value of the property resulting from the work, or (b) therelevant % of the actual cost of the work.
Building work continued…Example :
If Ross spends £10,000 on improvements resulting inan increase in value of £15,000 then £5,000 will bededucted from Rachel's share.
However, if Ross spends £10,000 on improvementsresulting in an increase in value of only £5,000 then£2,500 will be deducted from Rachel’s share.
• SJE likely to need to be instructed to report on :1. The value of the property if it hasn’t been
sold;2. Rental value for occupation rent during the
relevant period;3. Value with and without any relevant
building works.
• This may mean a chartered surveyor is more suitablethan an estate agent.
Prepare a Schedule…
www.pumpcourtchambers.com
TOLATA procedure: “the fun stuff”Mark Ablett
Plan of action
TOLATA procedure:• Part 7 or Part 8• Brief overview of Part 8 procedure• Overview of Part 7 procedure
Part 7 or Part 8 CPR
• Pre-action conduct practice direction applies regardless;
• Not mandatory but generally TOLATA cases issued under Part 8;
• CPR rule 8.1(2)(a) - A claimant may use Part 8 where: “he [or she] seeks the court’s decision on a question which is unlikely to involve a substantial dispute of fact”
Examples of Part 8 cases
• Where the claim is simply an order for sale;• Issue over timing of sale rather than proportions of
beneficial interest; • No dispute over beneficial interest but equitable
account claimed; • Query whether minor dispute over beneficial
interest and Part 7 disproportionate
Part 8 Procedure
• Deemed multi-track• No formal pleadings• No costs management (court has discretion)• Issue with claim form + witness statement• Defendant responds in witness statement• More akin to financial remedy cases: – Disclosure attached to witness statements;– Can list for chancery FDR; – Trial
Part 7 initial procedure
• More specialist – know your case before you begin• Claim form• Particulars of claim• Acknowledgment of service + defence
Part 7 – Case management
• If multi-track, will likely be listed for CMC post-questionnaire
• Directions questionnaire:– Track allocation (invariably multi-track)– Compliance with pre-action conduct– Disclosure– Expert evidence– Witnesses; – Listing information– Costs management– Other directions
Costs management
• Coming to a Family Court near you • CPR PD3E, para 5(c) – TOLATA claims appropriate
for costs management• In practice:– Precedent H– Precedent R
• Costs management order – goes to recoverable costs on the standard basis.
• Will be made at costs management conference or more likely at case management conference
Parting comments
• Comply with deadlines or face sanctions• Summary judgment• Costs– Part 36– Calderbank
• Schedule 1 counterclaim? • Get early specialist advice
