Fast track dilemma

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    Fast track dilemma

    I started a 3x deposit case against my landlord/agent in small claims at the advice of the TDS. They counter claimed with 2 months rent which I didn't pay I thought with agreement from the landlord because of the appalling condition of the rental property (damp/bad electrics/broken boiler/ripped up flooring due to water damage) The only thing the landlord fixed was the boiler after a lot of badgering. At a directions hearing last week the judge allocated the case to fast track. He advised me that the case could get extremely costly and I should consider settling out of court. I have contacted the landlord/agent's solicitor to discuss settling who informed me that to settle I will need to pay all the landlord/agents costs to date. He said as the case has been allocated to fast track and not re-allocated then I am liable for all costs from the beginning of the case. Is this right? I'd really appreciate a reply because if I intend to continue with the case I need to pay £600 for court costs in the next week.

    Thanks for your help.

    #2
    Thats what they say they want to settle for... you have to give them a reasonable offer of what YOU will settle for, so that if you go to court you can say that you offered XYZ which they refused.

    I think you need legal advice; if you are of limited means try your local law centre.
    All posts in good faith, but do not rely on them

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      #3
      Originally posted by needhelpplease View Post
      At a directions hearing last week the judge allocated the case to fast track. He advised me that the case could get extremely costly and I should consider settling out of court. I have contacted the landlord/agent's solicitor to discuss settling who informed me that to settle I will need to pay all the landlord/agents costs to date. He said as the case has been allocated to fast track and not re-allocated then I am liable for all costs from the beginning of the case. Is this right? I'd really appreciate a reply because if I intend to continue with the case I need to pay £600 for court costs in the next week.
      Too late now, but it would have been less risky to issue a claim for return of deposit only, then it would have been allocated to the small claims track where cost consequences are very limited compared to the other tracks.

      These are the Civil Procedure Rules (CPR) about Fast Track costs
      http://www.justice.gov.uk/civil/proc...rts/part46.htm

      And in the rules about discontinuing a claim - CPR 38.6(1) - it states:
      "Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant."

      Which is what I think the solicitor you spoke to may have been thinking of when he said you'd be liable for all their legal costs to date if you discontinued proceedings now. This doesn't mean you can't negotiate a different settlement, if the defendant agrees to it.

      I agree with Bel - you really need to get proper legal advice.

      Comment


        #4
        Thank you both for your advice. I'm getting in touch with the Community Law Service in the hope that they can help. I wish I'd spoken to both of you before listening to TDS who really know how to give terrible advice. They made it seem very straight forward.

        Comment


          #5
          Originally posted by needhelpplease View Post
          Thank you both for your advice. I'm getting in touch with the Community Law Service in the hope that they can help. I wish I'd spoken to both of you before listening to TDS who really know how to give terrible advice. They made it seem very straight forward.
          Perhaps you can sue the TDS if you loose then?

          Its only natural to get nervous with court action; just make the best of what hand you now have. If the TDS told you to do that, they must be reasonably sure that you have a good case.

          You've set the ball rolling; dont wimp out unless its on good advice.

          Please post back what happens when its all over
          All posts in good faith, but do not rely on them

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            #6
            Originally posted by westminster View Post
            These are the Civil Procedure Rules (CPR) about Fast Track costs
            http://www.justice.gov.uk/civil/proc...rts/part46.htm
            Further to this, According to 46.2, if you claim is no more than £3000, the "Amount of fast track trial costs which the court may award" is only £485. If your claim is more than £3k and less than 10k, then the "Amount of fast track trial costs which the court may award" is only £690.

            And possibly another £345 under 46.3. Would this also apply?

            Westminster, is my undertstanding correct here?

            Why do you have to pay £600 in court costs if you intend to continue? do you have representation?

            Also, was you deposit not protected? How strong is your case?

            Comment


              #7
              Originally posted by Lilly View Post
              Further to this, According to 46.2, if you claim is no more than £3000, the "Amount of fast track trial costs which the court may award" is only £485. If your claim is more than £3k and less than 10k, then the "Amount of fast track trial costs which the court may award" is only £690.

              And possibly another £345 under 46.3. Would this also apply?

              Westminster, is my undertstanding correct here?
              I have no experience of the fast track, only small claims, but based on my limited experience of CPR, it's often not as simple as it may appear. There might be a relevant rule in a different part. For example, if the defendant makes a CPR Part 36 offer, and claimant refuses and then loses, this might change what is awardable.

              And it seems to be the case that the judge can, generally, award whatever he decides is appropriate. For example 46.3(8) says: "Where the court considers that the party who is to pay the fast track trial costs has behaved improperly during the trial the court may award such additional amount to the other party as it considers appropriate".

              Not that OP sounds unreasonable! So I doubt this particular rule would apply. But, if, say, there was no legal ground for the claim, then judge might take the view that the defendant is entitled to all of their costs for defending a spurious claim?

              Even within the limits of 46.2, OP risks having to pay around £1,000 in court fees and £1,000 defendant's legal costs.

              It seems in OP's case the LL did register the deposit but the TDS are denying deposit was actually protected because TA did not include their 'Clause G'. I have no idea if this is a 'strong' claim as I haven't read the TDS T&C, nor do we know any other details of the claim. But it would be dangerous to rely on the often ill-informed advice of the deposit scheme providers, and the fact that the judge recommended considering an out of court settlement suggests a reasonable degree of uncertainty as to whether the claimant will win.

              There's also the counter-claim. Again, we don't know whether OP has the evidence necessary to defeat this claim.

              Why do you have to pay £600 in court costs if you intend to continue? do you have representation?
              I assume this is the pre-trial checklist + hearing fee.

              Comment


                #8
                Hello again

                £600 is for listing questionnaire and allocations which I have to pay next Monday and I’ve also been told to amend my claim to include a s.11 Landlord and Tenant Act claim to specify defects by 24th Sept. There was a damp report done while I was in the property because I kept complaining and the agent finally arranged it. The damp specialist told me at the time the property was definitely damp, but LL has not ever let me see report. I am assuming I can ask for this to be shown in court. I also have lots of photographic evidence of the general condition the proper was left in while I lived there. I’ve also been able to get hold of a survey report done on the property the year before I moved in, which states the property suffers from damp. I’m not sure if this will help my case or even if I’ll be allowed to use it.

                I have been told by the Community Law Centre that I should be eligible for legal aid and they will take on my case. This will mean they will help me with all the paperwork and they will provide me with a solicitor/barrister for court. Which sounds very encouraging! I’m taking all the paperwork I have over to the solicitor tomorrow morning.

                I’ve attached a copy of the clause G and the relevant rules of membership. As a layperson it seems to make perfect sense, but obviously the law is a lot more complicated than that.

                Thanks again for all your advice and support. I really do appreciate it.

                Comment


                  #9
                  Originally posted by needhelpplease View Post
                  I wish I'd spoken to both of you before listening to TDS who really know how to give terrible advice. They made it seem very straight forward.
                  Why are you blaming TDS - they gave you correct information (not advice) - the LL/LA had not correctly protected the deposit under an authorised Scheme by complying with the legislation (and in turn the requirements of the Rules of a Scheme) so you have the right to instigate legal procedeeding to get it + 3x back.

                  Without taking proper formal legal advice (free or otherwise) you then proceeded to complicate matters with other issues and you now find yourself with a problem! None of the TDP Schemes offer legal advice - they simply told you what the issue was and that you had recourse in law to remedy that.
                  The comments given here are provided free of charge and inevitably without sight or knowledge of the full facts and are thus given in good faith but without liability and should not be relied upon as formal legal advice.

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                    #10
                    Sorry not very successful at attaching documents…. I'll have to put small pieces at a time.
                    Attached Files

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                      #11
                      Here's the first part of the clauses to go into TA
                      Attached Files

                      Comment


                        #12
                        I have been told by the Community Law Centre that I should be eligible for legal aid and they will take on my case. This will mean they will help me with all the paperwork and they will provide me with a solicitor/barrister for court. Which sounds very encouraging! I’m taking all the paperwork I have over to the solicitor tomorrow morning.
                        That's very good news. Also ask about court fees. I just checked the HM Courts website and it says if you're on legal aid "the solicitor will deal with any court fees on your behalf". Which I think must mean you don't have to pay them...?

                        Comment


                          #13
                          Court Case over

                          Just wanted to give an update...

                          I ended up not being able to get legal aid... but took the very good advice I received and carried on. I did all the background work myself and appointed counsel for the day. I was really worried just before the case as the defendants solicitor informed me that their costs were over £10K. It took 2 weeks for the judge to reach a decision but I won on both the disrepair and the deposit penalty.

                          I just wanted to say thank you for making me stay positive. It wasn't easy but was definitely worth it in the end.

                          Comment


                            #14
                            Well done, I am sure this will bring hope to many.

                            Comment


                              #15
                              Very well done, nhp! Added bonus of learning about court procedure in the process, which may come in handy for the future. Would love to know more of the gory details

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