Robinson v Bailey 1942 1 ALL ER 498

[differentjudge]

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

[differentjudge]

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??????

[Never-In-Doubt]

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

[differentjudge]

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

[differentjudge]

Re: Robinson v Bailey 1942 1 ALL ER 498

morning all

[Paul.]

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.

[differentjudge]

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

[differentjudge]

Re: Robinson v Bailey 1942 1 ALL ER 498

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

[Paul.]

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

[differentjudge]

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)

[differentjudge]

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?????

[differentjudge]

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...."

[Miss Molly]

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.

[differentjudge]

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

[garlok]

Re: Robinson v Bailey 1942 1 ALL ER 498

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

regards
Garlok