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Deposit Protection - Misleading info [Page 2]

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« Reply #30 on: November 14, 2020, 01:48:08 PM »

yes, KTC, I was just confused by the Deregulation Act 2015. Having googled and read about it this is what I understand.

the superstike case establishes that perodic tenancies are 'new tenancies' but the only ruling reversed by Degulation Act of 2015 is only with regards to the deposit protection. Hope I am right.

so, KTC, you are right and thanks for the all the legal points, I just want to bind these along with the legal authority for the Judge to see. This is what I am planning to do, pls let me know if there is any other way.

1) argue there are multiple tenancies as per Superstike case
2) take a print out of https://www.bailii.org/ew/cases/EWCA/Civ/2013/669.html and attach with that.

Thanks

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« Reply #31 on: November 14, 2020, 06:30:33 PM »

Superstrike merely confirms what were clear to housing lawyers at the time, that a statutory peirodic tenancy pursuant to s5 of the Housing Act 1988 is a new tenancy from that of the fixed term tenancy. More importantly is the consequence of that that were decided amongst other things.

  • Does the protection requirements applies to deposit taken before the law changed - because of wordings from amendments bought in by the Localism Act 2011, yes it does in so far as no valid section 21 notice if not protected, but the 1x-3x penalty wouldn't apply
  • What happens when a new tenancy come into existence between the same landlord and tenant - the requirements applies afresh as if the deposit was paid over again even if no actual money changes hand

What the Deregulation Act did
  • For a deposit that was originally received before 6 April 2007 when deposit protection came in, if an associated statutory periodic tenancy arose after that date - if the tenancy had ended, tenant can't sue for a penalty; for ongoing tenancy, landlord had 90 days to protect deposit in which case they would be treated as having complied with the requirements all along
  • To save the burden on landlord to give PI again when nothing changes, allows the landlord to be deemed in law to have complied with the requirements to give PI if indeed nothing have changed - same landlord, same tenant, same property, deposit continued to be protected by the same scheme

That second part does nothing for a landlord when the deposit was not continuingly being protected under the same scheme, or the landlord had not given PI to the tenant in the preceding tenancy.

Is your hearing even in person, or is it a virtual / phone hearing?
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« Reply #32 on: November 15, 2020, 01:29:52 PM »

thanks a ton again KTC for confirming my understanding. I am clear on Superstike case Deregulation Act.

My hearing is in person, but likely to be virtual if the pandemic continues..why how does it make a difference ?

I just need to file a witness statement which I have already prepared , but the part I am not sure how to cite these legal authorities in the statement which I believe I have to do based on your earlier replies for those to be referred during the hearing.

is it just that I take a print out of https://www.bailii.org/ew/cases/EWCA/Civ/2013/669.html and attach to my witness statement ?
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« Reply #33 on: November 15, 2020, 05:10:19 PM »

why how does it make a difference ?

Because you can't take copies of a printed document to the hearing with you if it's virtual?  ;)

A witness statement is a statement of fact. Done correctly, it's not supposed to have any opinion, or arguments in it. "I was a tenant of XYZ at ABC ADDRESS. On X/Y/Z, me and XZY agreed on a tenancy from this date to that date, a copy of the tenancy agreement is annexed as Annex A. I paid over a deposit of £XXX via bank transfer. etc. etc. He provided with this document, but at no point did I receive that document. etc. etc."

Proper court procedure. A summary of your legal argument is written out in what's called a skeleton argument. Give the judge and the other side an idea of what you're going to say at the hearing. This is supposed to be exchanged with other side, and copy filed with the court, just ahead of the hearing. Similarly, all documents filed and served, including the claim form, witness statements, skeleton arguments, authorities to be relied on etc. goes into a court bundle. This one is supposed to be agreed between the two sides so everyone work off the same thing. Don't always happen. If your case is in small claims (since you mentioned it's a counterclaim to a money claim from your landlord), the procedure is probably more relaxed. Do some research to see what the procedure are, see if it helps.
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« Reply #34 on: November 16, 2020, 05:35:16 PM »

right, so the case is in county court.

Judge jasked me to file a 'supplementary' witness statement as I wanted to attach the evidence from the scheme provider themselves that deposit is not protected. so I also wanted to include your valid legal points and crucially cite the authorities in it.

Judge also asked the claimant to file a paginated catalogue ahead of the hearing which is going to be virtual.

so I am looking to include authorities somehow. Don't think I can file a separate document such as 'skeleton argument' as Judge was clear I only need to file a witness statement in the last hearing.

I have googled and still no lick on how I can include legal authorities as part of wtiness statements alone. any ideas pls?
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« Reply #35 on: November 16, 2020, 07:19:25 PM »

Once again, a witness statement is a statement of fact not where you lay out your legal arguments. So you can say something along the line of "to my knowledge the deposit was not protected, which I confirmed with the 3 schemes (see attached letters for their responses)"

I have no idea what a "paginated catalogue" is supposed to be.

There's a difference between what you need to file (and serve to other side), and what you can file and serve. When judges give you directions to do something, you are required to do it, doesn't mean you can't do more (unless ordered not to). Looks like trial bundle falls under you can if you want but not required for cases under small claims track.
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« Reply #36 on: November 17, 2020, 12:46:16 AM »

yes I know how witness statements looks like. I have prepared them before myself.

what I am not sure is how to attach the legal authorities in them

what harm it will do if I just take a print out from https://www.bailii.org/ew/cases/EWCA/Civ/2013/669.html and refer to them as 'evidence AZ01" etc in my witness statement - will the Judge not take this into account ? or what would be the proper way to do this for a remote hearing pls - I am bit hesitant to file 'skeleton argument' as I hv not done that before.

the case is at county court, so the small claims procedure is not applicable I presume?
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« Reply #37 on: November 18, 2020, 01:44:00 AM »

yes found out the claim is under 'small claims track' - I was not aware small claims are also heard in county courts..thought they had their own court.

what does 'file' and 'serve' mean - sending the document to court and the claimant....

should I just email the court or should I post to them the printed copies to be accepted for hearing...the directions from the court only says 'file and serve'..

thanks in advance for any insight into this
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« Reply #38 on: November 18, 2020, 05:46:43 PM »

https://www.lawgazette.co.uk/benchmarks/calculation-of-time/5041273.article

There should be instructions either on communication you've had with the court so far, or gov.uk stating how that court accept documents.

https://www.justice.gov.uk/courts/email-guidance
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« Reply #39 on: November 18, 2020, 07:33:37 PM »

thanks, the letter from the court simple says 'file and serve' by a 4pm 25th Nov'  and does not specify email or post.

The court had asked previously for documents to be sent electronically for virtual hearing.

and claimant also emailed to say he wants the document via email as he is abroad.

so shall I email both parties ? or should I still print them and send by post - really confused....(pages are less than 50 pages and less than 25MB btw)
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« Reply #40 on: November 18, 2020, 07:58:39 PM »

If the other side told you email is okay, then you can email.

If the court previously directed you to do it a specific way, follow their direction.
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« Reply #41 on: November 18, 2020, 08:22:18 PM »

thanks again KTC.

the last time they asked for the virtual hearing, hope the same applies this time too..

also I am going to send a PDF version of https://www.bailii.org/ew/cases/EWCA/Civ/2013/669.html in that email as atachment. Let me know if there is another way.
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