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Deposit Protection - Misleading info [Page 2]

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mahira

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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

KTC

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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?

mahira

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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 ?

KTC

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« Reply #33 on: November 15, 2020, 05:10:19 PM »
Quote from: mahira on November 15, 2020, 01:29:52 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.

mahira

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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?

KTC

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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.

mahira

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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?

mahira

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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

KTC

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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

mahira

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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)

KTC

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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.

mahira

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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.

mahira

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« Reply #42 on: January 15, 2021, 05:17:14 PM »
Hi,

the hearing was scheduled to be next week, but today I have received a letter from the court the trial had been vacated as the claimant did not pay the trial fee of £335.

my question is I have the counterclaim and have previously paid courts the relevant fee for counterclaim around £700, so what should I do now?

how can I make sure the counterclaim is heard as I have a good case.

tried contacting courts, but no luck as this is my first encounter with any form of court not sure what to do - any advice/help would be appreciated.

thanks in advance

KTC

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« Reply #43 on: January 15, 2021, 05:59:27 PM »
You need to keep trying to get in contact with the court. There's nothing anyone here can help you with.

Your counterclaim should still stand, but only the court can help you with when the hearing into that will be.

mahira

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« Reply #44 on: January 15, 2021, 06:41:43 PM »
ok thanks. I will keep calling the courts - now will have to on Monday.

but I was seeking advice on the following and trying to understand why the claimant had not paid the fee and what happens to this claim now.

brief summary:
claimant seeked  9.5k rent when the arrears were only 5k.
I counterclaimed for 9k in the wtiness statement - although from this forum it turned out I may get much more than that due to multiple tenancies.

so the options I see are
1) ask court to set aside the order they had made in vacating the hearing - guess I will have to pay further £255
and what happens then - only the counterclaim is heard ?

2) do nothng now and may be issue a fresh claim later (but within 6 years) to get my deposit of 2k back?
if I do this, I believe claimant will counterclaim for the rent arrears ?

would love if somebody can answer these. thanks

KTC

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« Reply #45 on: January 15, 2021, 07:39:03 PM »
Quote from: mahira on January 15, 2021, 06:41:43 PM
so the options I see are
1) ask court to set aside the order they had made in vacating the hearing - guess I will have to pay further £255
and what happens then - only the counterclaim is heard ?

2) do nothng now and may be issue a fresh claim later (but within 6 years) to get my deposit of 2k back?
if I do this, I believe claimant will counterclaim for the rent arrears ?

Get on the phone and point out there's a counterclaim. It's entirely possible for the court to not realise that. It's also possible for you to have misunderstood and that the claim have been struck out for non-payment, but the hearing into the counterclaim is still due to take place as originally scheduled.

Yes, as it stand, only the counterclaim will be heard. The claimant can apply to have the claim reinstated. Up to the court whether to grant it. The claimant can also possibly just try and make a new claim.

mahira

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« Reply #46 on: January 15, 2021, 07:55:16 PM »
it is clear in the letter that schedulled hearing had been vacated so there is no hearing for counterclaim next week as I understand it - or have I misunderstood the court terminology?

and the order also says since it had been made without hearing, parties can apply for this to be varied/set aside by paying fee to the court.

so my understanding is the previosly schedulled hearing is non runner.

but I can have it heard another time if I pay a fee - it is not clear how much and how (any application form to use etc)

mahira

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« Reply #47 on: January 18, 2021, 02:12:06 AM »
Hi @KTC,

What is the best way to remind court there is a counter-claim in these circumstance ? ( I have emailed courts, but no reply...called but no answer)

also since the claimant did not pay the small claims track trial fee - what happens to all the fees I had to incur so far ?

any advice would be helpful.

KTC

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« Reply #48 on: January 18, 2021, 03:02:40 AM »
I have no advice for you other than email, letter, and keep calling. And when I say keep calling, I mean don't hang up, let it ring and ring until it's either answered or you get cut off. If you get cut off, call back and let it ring.....

mahira

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« Reply #49 on: January 18, 2021, 09:55:06 AM »
ok will do.

so as I understand it, the normal process if claimant does not pay the fee is for counterclaim is survivie as there is one and in this case the courts have failed to see it..correct ?

mahira

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« Reply #50 on: January 22, 2021, 06:45:20 PM »
tried calling them for 5 days non stop and being on the call at times for 3 hrs!

sent email - no response either..

I feel lost - isn't there any other way to remind courts that my counterclaim should have survived and how to get the fees I paid as the case had been automatically struck out due to claimant not paying the fee.

Thanks

springtime

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« Reply #51 on: January 31, 2021, 06:31:44 AM »
Mahira,

I am unable to follow your thread properly, but l get the impression you've been waiting for an eMail reply from the county court for about 1 week?

They don't confer with you on the case via eMail, they will write to your registered address instead - just make sure they have your address right.

If you're question is about procedure e.g. if claim hearing is voided, is counterclaim still valid, then l would have expected them to reply via eMail. All l can say is: at least your eMail is a clear record of your interactions. Just make sure your inbox is secure and keep screenshots too.



One thing l'm curious about. The claim hearing was voided because landlord wouldn't pay hearing fees. That is exactly what happened with me when my landlord came at me, wanting to devour my deposit. He let the first Money Claim go to waste, because l feel he just wanted to see my evidence. Your tale bolsters this view. It seems it's a common tactic used by crooked folk who would game the legal system to help them devour the wealth of those with less money and / or less time (e.g. a company swarming a solitary person).

What happened with me was, the landlord soon returned with Money Claim #2, and it was on the exact same matter again, but the text was honed down in line with some of my objections sent in regard to Money Claim #1. So, expect another Money Claim from your landlord?



By the way, Mahira, it's not unreasonable to ask for legal advice on a forum called "Tenant Advice & Help". I don't know why some people make out otherwise. I've only been on this forum for 2 days but l strongly feel there's a few upset landlords here with issues, and they have probably been punished by the legal system.
If the legal system enables you to punish a landlord, and you want to do so, then it's not for some armchair holier-than-thou moderator to chastise you.

mahira

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« Reply #52 on: February 05, 2021, 10:33:20 PM »
Hi Spingtime,

Thanks for your reply...I know there are good landlord but this previous one is a very dubious and dodgy one - interested nothing but the money/rent.

So, my case summary is like this - he claimed ridiculous rent event for period after my notice to quit expired for some reason even when he took possession of the property before the notice period ended by changing the locks without agreeing to mutual surrender.

I was happy to pay rent until notice ended even if it meant he had taken possession as I was entitled give him notice. But could not come around with the fact he was seeking rent after that date!

To his bad luck and to my advantage I noticed he had made numerous errors in protecting my deposit and one kind soul here (KTC) pointed out there are multiple tenancies and I could go for 3x deposit as compensation.

I then produced a solid witness statement backed up by some legal precedents (all thanks to KTC and internet) and sent to him and court which I believe would have forced him to rethink.

I was then very much looking forward for the hearing date and just week before found our he had not paid the fees and it automatically been struck out - been trying to contact court ever since to find out what should/supposed to have happened to my counterclaim as I paid  around £700 as court fee!

Regarding, asking legal help on tenant forum, it started out as tenant matter and turned into a legal one. Apologies if I hv offended anyone.

The thing is I did not have to deal with any courts in my life until this case , and I am clueless of the procedure.

I have not found any useful  legal forums either...If I can manage to get hold of a good legal expert with deposit protection, I believe I can teach this landlord a valuable lesson!

mahira

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« Reply #53 on: September 27, 2021, 04:37:58 PM »
an update on my case:

After trying to revive my Claim, I managed to get a hearing from the court, for my counter claim which took place last week. Before I tell you what happened, a recap.

  • - I had multiple tenancies (fixed ans periodic) with the landlord
    - LL failed to serve valid PI
    - I took a note of this, when LL tried to evict me for section 8 (due to not taking one of my payment to account) and made possession claim
    - Made a counterclaim for failing to protect deposit
    - I vacated, so LL changed possession to money claim.
    - Money claim moved to small claims track, Judge asks for a bundle to be filed and served.
    - Landlord does not pay for 'fee'
    - Hearing got vacated, court staff failed to see my counterclaim, so it was not heard.
    - asked the court to hear my counterclaim.
    - That hearing took place last week.

so,, now what happened at the hearing:

- Landlord turns up having served a bundle just 48 hrs before the hearing to me and the court (as per last hearing)
- Judge says it is for counterclaim only and for money claim, he has to re-instate
- Tells LL about 'claim fee' and 'hearing fee' are different - I am not sure what they are.
- Judge says she also not got the bundle in hard copy (says since it is multiple pages, court cannot print) to proceed with countercliam alone
- Asks defendant (me) to work with the claimant and serve 'Joint Bundle' and the onus is on me now to serve the bundle as hard copy.
- Hearing adjourned for another day in the near future.

My questions:
- what was landlord thinking turning up to the hearing without paying the fee (he is represented by a Barrister)
- was LL 'gaming the system' by serving me and the court the bundle just 48hrs before, so that if his claim is not going to be heard, counterclaim was also not going to be
- For no fault of my own, I am waiting for my counterclaim to be heard for almost a year now. (who knows then the next hearing going to be), is there any recourse for me ?
- Can I just print whatever the bundle Claimant had already submitted in email as it has all what I need
- Judge mentions that I am now 'Part20 claimant' - what does it  mean - does it mean I need to pay another fee now (same fee Claimant failed to pay as 'hearing fee)
- If the claimant pays the fee again. I believe he can re-instate the claim, then what happens, both will be heard together?


Thanks for ant advice / guidance

KTC

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« Reply #54 on: September 27, 2021, 06:20:45 PM »
You should probably spend a little money on legal advice at this stage rather than relying on a random internet forum.

Had the landlord actually applied for the claims to be reinstated, and it granted conditional on the fee being paid? If so, he only has a short timeframe to pay the fee from any order granting the relief. If payment is made within the timeframe, then yes the claim and counterclaim will be heard together.

He has a barrister, does he have a solicitor? If not, the barrister must be direct access, is the direct access barrister only there for the hearing and not doing anything outside of that. You need to establish who you should be communicating with, who is accepting service of documents etc.

Quote
was LL 'gaming the system' by serving me and the court the bundle just 48hrs before, so that if his claim is not going to be heard, counterclaim was also not going to be
"not more than 7 days and not less than 3 days before the start of the trial" and should be agreed between the sides.

Doesn't sound like gaming the system so much as incompetence / ignoring things and it'll just go away.

Quote
Can I just print whatever the bundle Claimant had already submitted in email as it has all what I need
You need to do some research on what goes into a trial bundle. It is not just e.g. the claims forms and other thigns the court already has. You may get away with it being a little off being not-represented, and it being small claims, but now that you're responsible you better show you at least did your best attempt at it.

Quote
Judge mentions that I am now 'Part20 claimant' - what does it  mean - does it mean I need to pay another fee now (same fee Claimant failed to pay as 'hearing fee)
Didn't you already paid a hearing fee for your counterclaim? You're fine.

Just referring to CPR Part 20: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part20

mahira

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« Reply #55 on: September 27, 2021, 08:43:50 PM »
Many thanks once again KTC.

Your points helped me more than anything I have got anywhere else and it forms the core of my skeleton argument as you had laid it out pretty much in full for me.

I am happy to pay for legal advice, but everyone I approached, does not seem to be knowledgable than what is discussed on this forms (at least the one I had spoken to), some do not know about PI even.

also since I had already done work, come so far, I feel confident, but I admit I am rough around the edges.

so, Claimant had not paid the fee, Judge said it is completed upto him to pay it not, but unless he does there is no claim and only counterclaim.

To answer, your other questions, I do not know the difference between Barristers and Solicitors, but I think he got a Barrister, as he himself during the hearing asked me to get in touch to prepare the 'Joint Bundle' which I understand is the documents from all parties. Now, the LL has representation, I do not have to deal with LL directly right ? (coz he is a nightmare to deal with)

regarding the bundle, I asked the Judge in the hearing itself as this is my first court case in my entire life and the Judge said, 'file anything you want, but make sure there is a index page and all pages have sequence numbers'. Are you aware anything else I need to consider ?

I am slightly worried that this hearing dragging for longer and I guess I will have to put it on bad luck (first court failed to see the surviving counter claim when it was stuck out and then did not find the electronic bundle).

Next hearing going to be at the courts I think, so I will make sure I have three copies of the bundle. so, hope, it goes well.

I just got to make sure everything I am going to rely on is in the Bundle right ? coz I take it, neither party can rely on anything else if it is not in the Bundle?

I remember paying £255 (a flat fee)+ approx 450 (depending on the claim amount). So total of just over £700. but do not know which is claim fee and which is hearing fee. Does a party need to pay a hearing fee, every time a hearing is adjourned to a later date pls?

Thanks

thanks

KTC

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« Reply #56 on: September 27, 2021, 09:09:51 PM »
Quote
but I think he got a Barrister, as he himself during the hearing asked me to get in touch

The second "he" here is a bit dangling. I don't know if you're referring to the landlord or the barrister.

You deal with the landlord directly unless you are informed otherwise. You serve documents to the landlord unless you are informed otherwise. (The two are seperate, a legal rep can act for a client but not accept service of document.)

Have a look at https://www.thejusticegap.com/wp-content/uploads/2013/07/Bar-Council-guide.pdf and https://www.judiciary.uk/publications/handbook-litigants-person-civil-221013/ . They may help give you a better idea of what you need to do.

Quote
then did not find the electronic bundle).

Next hearing going to be at the courts I think, so I will make sure I have three copies of the bundle. so, hope, it goes well.
Don't expect documents filed with the court to actually reach the judge. File it per the relevant time limit, keeping evidence that you actually did so (e.g. proof of posting). And then take spare copies with you to court just in case the judge never got the copy you filed.

mahira

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« Reply #57 on: September 28, 2021, 12:43:51 AM »
Quote from: KTC on September 27, 2021, 09:09:51 PM
Quote
but I think he got a Barrister, as he himself during the hearing asked me to get in touch

Quote
The second "he" here is a bit dangling. I don't know if you're referring to the landlord or the barrister.
Barrister KTC. Thanks again btw.

I will read though the links...one other question..am I allowed now to bring additional claim against the landlord for breaching the covenant to my quiet enjoyment by being physically threatening during the tenancy and for harrasing for rent arrears because he failed to see the payments I made ?

or is it advisable to wait and only do a counterclaim if he re-instates his vacated claim or brings another fresh claim...

I really like to teach this landlord who owns more than one property and uses all the tricks in the game to get what he wants to learn to respect the law.

KTC

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« Reply #58 on: September 28, 2021, 12:58:07 AM »
You'll need the court's permission to modify the (counter)claim even if it's possible. I wouldn't do anything that may further delay the case if I were you.

mahira

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« Reply #59 on: September 28, 2021, 10:56:51 AM »
thanks KTC, that's make sense..cheers, remind me again what do you do for a living ? solicitor ?

This forum puts more legal sense into me that anyone ever has.

so for now, I will concentrate only on my counterclaim and then wait and see what LL does, re-instate or make a fresh money claim.

I can always bring harrasmment claim against him any time right ? or is there a time limit ? The reason is I am considering this is I have all the written evidence for it too (complained to council tenancy officer / emailed landlord and had to make 911 call at some point too)

cheers
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