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  • Robinson v Bailey 1942 1 ALL ER 498

    Hi

    can any one help with finding this case and its relevence to charging order sought by Creditor

    Cut a long story short

    had a forthwith order september 2010, made application for a variation to the order .
    Novemebr 2010 had a reddeterminaton hearing (creditor asked the court for a C/O ) it was varied to an Instalment order with a review of my I&E in 6 months with no C/O

    May 2011 went to the review hearing and on the same morning recieved a W/S from creditor seeking a C/O and quoting Robinson v Bailey.

    Judge would not adjourn hearing and has varied the order to A forthwith order and given the creditor permission to appliy for a C/O

    any help or advice greatfully received

    Frank

  • #2
    Re: Robinson v Bailey 1942 1 ALL ER 498

    any luck in finding the case ????

    Robinson v Bailey

    Or does any one know the relivance to do with charging orders?

    The amount owed in relation to the value of the asset or equity??????

    Comment


    • #3
      Re: Robinson v Bailey 1942 1 ALL ER 498

      Here is the judgment - I will decode it into HTML when i'm not so busy
      Attached Files
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      Comment


      • #4
        Re: Robinson v Bailey 1942 1 ALL ER 498

        Thank you Niddy for putting this on for me.....

        i would be grateful to all for your views/opinions/interpretation on the above case...

        Optima have put this in a Witness Statement to support an application for a charging order....

        i guess they are trying to pre-empt my defence that it is disproportionate to seek a charging order for £12,500 (approx) on a property valued at £320,000 with equity of £220,000

        any opinions????

        Frank

        Comment


        • #5
          Re: Robinson v Bailey 1942 1 ALL ER 498

          morning all

          Comment


          • #6
            Re: Robinson v Bailey 1942 1 ALL ER 498

            is there an installment order in place? if so, has there been a breach of the order.

            Comment


            • #7
              Re: Robinson v Bailey 1942 1 ALL ER 498

              the original order was a forthwith order (sept 2010)( Judge A)

              i applied to have it varied to an instalment order and was sucessful. (at the same time MBNA/Optima applied for a C/O but it was declined by the judge)(Judge B November 2010)

              a condition of the instalment order was to review my I&E after 6 months.

              Made every payment on time despite optima not supplying the bank details to set up a standing order . i wrote 4 times to request it and it was only after i threatened to tell the court that they gave me the bank details

              went to the hearing to review my I&E and MBNA asked for permission to apply for a C/O. Was only sent a witness statement by optima 2 days before the hearing quoting Robinson v Bailey and requesting the C/O. This arrived on the morning of the hearing.

              Asked the judge to adjourn but he refused.

              Varied the order back to a forthwith, thereby taking out the mercantile v ellis defence. and allowing them to apply for a charging order.....(June2011 Judge C)

              ...Judges lottery i hear you say

              I have since made an application to vary it to an instalment order. Hoping it goes before Judge B again or possibly a new judge . (Im due a decent one soon) Dont think they will but it will slow down the process to allow me time to prepare a defence to the charging order request...


              But simple answer was i did not miss a payment
              Last edited by differentjudge; 22nd June 2011, 17:30. Reason: addded

              Comment


              • #8
                Re: Robinson v Bailey 1942 1 ALL ER 498

                hope the above clarifies my current position and the relevance of Robinson v Bailey

                Comment


                • #9
                  Re: Robinson v Bailey 1942 1 ALL ER 498

                  if the order is forthwith then its gonna be hard to fight the charging order id say

                  i wonder if that is in the judges discretion to vary back to the forthwith order though, ill see if i can dig something up on that point

                  Comment


                  • #10
                    Re: Robinson v Bailey 1942 1 ALL ER 498

                    thanks

                    would be good if it was not at his discretion


                    otherwise im at the mercy of the good nature of the judge who will be holding the Final C/O hearing (no date set yet)

                    Comment


                    • #11
                      Re: Robinson v Bailey 1942 1 ALL ER 498

                      Hi Paul

                      i made an application to vary the latest Forthwith order to an instalment arder on 10th June. (Took the form and fee into the court that day)

                      am i right that if the claimant does not appeal this then i win by default and the order is varied back to instalmant order?????

                      Comment


                      • #12
                        Re: Robinson v Bailey 1942 1 ALL ER 498

                        the last part of Robinson v bailey......

                        how would you interpret this?

                        "...
                        Assuming then that I have jurisdiction, but nevertheless must be guarded in exercising it in such a case, I
                        have to consider whether I should exercise it here. It is conceded as it must be upon the terms of the statute,
                        that the court has a discretion in this matter. I do not suppose that it would be a proper exercise of jurisdiction
                        to make a charging order in respect of a small amount of no more than £50 payable by quarterly instalments
                        on a sum of Local Loans stock mounting to over £3,000. I cannot conceive that it would be proper for the
                        court, by reason of an apprehended failure of the defendant to satisfy the terms of the judgment, to lock up his
                        property, and certainly not to lock up so disproportionate an amount of his property, to satisfy so small a debt.
                        It is said, however, that in this case there are special circumstances arising out of the fact that the obligation
                        to pay this sum is one which is bound up with other terms and conditions embodied in the schedule to the
                        order. I do not take that view. I think it may be fairly said that the plaintiff is here attempting to use this
                        agreement in order to get a lever to force the defendant to comply with his obligation. That, as it appears to
                        me, is not the way in which the plaintiff should proceed. She has her rights under the order. She can apply
                        under the liberty reserved by the order itself for the enforcement of its terms. Even at the date when this
                        charging order was applied for and made by the master, there was correspondence going on between the
                        parties in regard to the implementing of the defendant's obligation. It is quite true that he has expressed his
                        doubts--it may be that he had gone further and asserted his inability--to fulfil the terms of the charge.
                        Nevertheless, the matter was in negotiation. The plaintiff had her right; and I see no reason why, in exercise
                        of the discretion which I admittedly have in this matter, I should lock up what appears to be one, if not the only
                        one, of the defendant's substantial assets in order that at some future date, if he fails to pay the £12 10
                        s due
                        from him by way of quarterly instalments, there should be available to the plaintiff this security. It may be that,
                        upon the authority of the decision of Bacon V-C that the court has jurisdiction to make the order which I am
                        asked to make; but this at least I am clear about, that that is a jurisdiction which in such circumstances must
                        be exercised very guardedly, particularly where, as I have already pointed out, the payment is conditional
                        upon the continued life of the judgment creditor.

                        The charging order will be discharged and the applicant, the defendant, will have the costs of this application...."

                        Comment


                        • #13
                          Re: Robinson v Bailey 1942 1 ALL ER 498

                          It looks to me as though the judge is saying that he isnt prepared to give the Creditor the charging order ie "lock up" the defendant (debtor's) assets for such a small sum.

                          Comment


                          • #14
                            Re: Robinson v Bailey 1942 1 ALL ER 498

                            that is what i thought.......

                            however MBNA/OPTIMA used it in a Witness Statement when asking the JUDGe to allow them to apply for a Charging Order...

                            CCJ £12500.....Propety £320000........only 3.9% of value of propert


                            any thoughts from any one else

                            Comment


                            • #15
                              Re: Robinson v Bailey 1942 1 ALL ER 498

                              Could be they have shot themselves in the foot DJ, reading that judgement.

                              regards
                              Garlok

                              Comment

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