Defence/Counterclaim

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    #31
    Originally posted by alteano1965 View Post
    in this case I believe that it must be obvious to the defendant´s solicitor that his client is lying to him, but they proceed to act on his behalf regardless?, are they not accountable for their actions?
    I don't know the precise rules but I do know that it is not unusual for solicitors to act on behalf of clients who are lying - my last claim was against a local council, and the defence, drawn up by an outside firm of solicitors, contained lies. It may come down to the difference between actually knowing something your client has told you is false, and merely suspecting it privately.

    As Jeffrey says, their job is to represent their client as best they can.

    Anyway, let's see whether the fee for the counterclaim does indeed get paid today. If it does, and assuming the counterclaim is for 'an unlimited amount' and this isn't an error, then the claim may well not get allocated to the small claims track. In this event, as Jeffrey is hinting, it would be advisable to consider getting professional legal advice before submitting your defence.

    Comment


      #32
      Thank you Westminster,

      The rental agreement says clairly that no security deposit was received, so unless the defendant has fabricated evidence, his solicitor must know he is lying, but that is not possible to prove.

      I believe that legal aid is not available for the small Court track, so that may be the reson why they are going for the unlimited amount compensation for the alleged disrepairs and flea infestation, the security deposit fine would only be £1,800. I suppose the legal aid fees are changed no matter the outcome?

      Regards

      Alteano

      Comment


        #33
        Originally posted by alteano1965 View Post
        I believe that legal aid is not available for the small Court track, so that may be the reson why they are going for the unlimited amount compensation for the alleged disrepairs and flea infestation, the security deposit fine would only be £1,800. I suppose the legal aid fees are changed no matter the outcome?
        If the claim isn't allocated to the small claims track (which is possible if the counterclaim doesn't get struck out for non-payment of fees today), then in the event you lose the claim, it's possible that you might have to pay all or some of the defendant's legal fees. This raises the stakes, which is one reason why it would be advisable to get some professional advice.

        Have you returned the allocation questionnaire yet? If not, when is the deadline for returning it?

        Comment


          #34
          Thank you Westminster,

          I have phoned the Local Court and to this point today, the fee has not been paid, but was also told that the counterclaim doesn’t get struck out automatically when fees are not paid....

          I have just noticed that the letter requesting the defendant to pay a fee of £1,530 was sent out by Northampton

          Few more hours to go....

          Regards

          Alteano

          Comment


            #35
            Originally posted by alteano1965 View Post

            I have phoned the Local Court and to this point today, the fee has not been paid, but was also told that the counterclaim doesn’t get struck out automatically when fees are not paid....
            You said before that the letter said it would get struck out if the fee wasn't paid? So if it doesn't happen automatically, what needs to be done to make it happen?

            Comment


              #36
              Also, have you returned the allocation questionnaire yet? If not, when is the deadline for returning it?

              Comment


                #37
                Thank you Westminster,

                Sorry I missed out before, no I have not jet submitted the allocation questionnaire, the deadline for both, defence of counterclaim and allocation questionnaire is the 25th February.

                The letter says " A fee of £1,530 must be paid by the defendant to the XXXXXXXX County Court within 14 days of this letter or the local Court will take steps to strike out the Counterclaim. Cheques or Postal Orders should be made payable to HMCS.

                Best regards

                Alteano

                Comment


                  #38
                  Hi

                  I have phoned the local Court this morning, they can confirm that the defendant has filed the Allocation Questionnaire, and not paid the fee for the Counterclaim by the deadline, which was yesterday.

                  They could not confirm that the Counterclaim will be struck out, although the letter sent to the defendant by Northampton (of which I received a copy) says it will be, if the Defendant failed to pay the fee to the local court by the 22nd February.

                  Will be grateful for some opinions, please.

                  Thank you

                  Alteano

                  Comment


                    #39
                    Originally posted by alteano1965 View Post
                    I have phoned the local Court this morning, they can confirm that the defendant has filed the Allocation Questionnaire, and not paid the fee for the Counterclaim by the deadline, which was yesterday.

                    They could not confirm that the Counterclaim will be struck out, although the letter sent to the defendant by Northampton (of which I received a copy) says it will be, if the Defendant failed to pay the fee to the local court by the 22nd February.
                    It would be dangerous to assume the counterclaim will be struck out, so submit your defence to counterclaim and the allocation questionnaire before the deadline (I'd use Special Delivery before noon service to be sure it gets there).

                    I stupidly forgot to mention an important point about the claim for deposit non-compliance and the 3x penalty. Court rules (called Civil Procedure Rules) say these type of claims must be issued on form N208 and they follow a different procedure whereby the claimant must serve, along with the particulars of claim, a copy of the written evidence on which he intends to rely. Clearly, he hasn't obeyed this rule, so I suggest you say something like this in the defence to c'claim (expanding upon what I suggested before).

                    The claimant denies that he received a security deposit from the defendant at any time. Part 56 of the CPR requires that claims under s.214 of the Housing Act 2004 must be started using Part 8 procedure, and as such the defendant's written evidence should have been served together with the counterclaim. (See CPR 56.1(1)(f); PD 56.2, para.2.1). Not only has the defendant failed to follow the correct procedure, he has omitted to give any details as to the date and manner in which he alleges he paid a deposit, and the claimant requests that this part of the counterclaim be struck out, failing which the claimant puts the defendant to strict proof of this claim.

                    As for the allocation questionnaire, indicate that you would like the claim to be dealt with in the small claims track. State that according to the court letter [dated X] addressed to the defendant, of which you received a copy, the counterclaim would be struck out if the fee wasn't paid by the deadline of [date]. You telephoned the court on [date] and they confirmed that the fee had not been paid by the defendant.

                    Comment


                      #40
                      Thank you Westminster,

                      You are right, I can not take for 100% certain what I am being told by phone, therefore I will submit the defence regardless. Will submit the Allocation Questionnaire and the Defence in person at the Court Counter on Thursday morning, I hope they will give me a receipt stating what I am submitting

                      I will mention in my defence that the defendant has not issued a N208 form, nor the written evidence, as he is required to do, thank you again for the information. However, by mentioning what they should have done, will I be telling their solicitors exactly what they need to do to succeed?

                      Thank you once again

                      Alteano

                      Comment


                        #41
                        Originally posted by alteano1965 View Post
                        Will submit the Allocation Questionnaire and the Defence in person at the Court Counter on Thursday morning, I hope they will give me a receipt stating what I am submitting
                        The last time I handed something in in person, the court refused to give me a receipt. No idea why or whether this is standard. Take a witness.

                        I will mention in my defence that the defendant has not issued a N208 form, nor the written evidence, as he is required to do, thank you again for the information. However, by mentioning what they should have done, will I be telling their solicitors exactly what they need to do to succeed?
                        If you say nothing, and in the event that the defendant pays the court fee late and the counterclaim proceeds, there is a chance that the procedural error will not be spotted by the court staff. If it is spotted, the defendant will find out their mistake anyway.

                        If you say something, I think you increase the chances it'll get struck out. But it's completely up to you to decide which course of action you feel is best.

                        Comment


                          #42
                          We discussed previously your concerns over whether the tenant could retrospectively claim that a rent payment was a deposit etc.

                          I just wanted to mention that some landlords make the error of taking 'rent in advance' (I mean on top of the usual one month paid in advance). They think that because they call it 'rent in advance', that it's not a deposit, but in many cases, because the money is intended to be held as security by the LL, it does in fact fit the legal definition of a deposit.

                          I mention this just in case that is what you did (though I think you'd have said something before now if you had).

                          Comment


                            #43
                            Thank you Westminster,

                            You are right, I will ensure to mention in the Allocation Questionnaire what I have been informed today; that the fee for the couterclaim was not paid, and my understanding that the counterclaim should now be struck out. Would it be worth it to mention this also at the beginning of my defence?

                            I will pay the £35 fee in cash, last time I went to the Court to submit the request for a warrant for possession I did get a receipt, but will take a witness just in case, thank you for suggesting it.

                            I rememeber reading that any advanced rent could be deemed to be a security deposit, it is not my case, but since the tenant was in residence before the agreement was signed, and I think he was the one who paid the November and December 2007 rent, I suspect that maybe his solicitor has adviced him to use this in his favour. I will have to wait to see what he has prepared to show as evidence of the alleged deposit he claims to have paid.

                            Thank you again

                            Regards

                            Alteano

                            Comment


                              #44
                              Originally posted by westminster View Post
                              I just wanted to mention that some landlords make the error of taking 'rent in advance' (I mean on top of the usual one month paid in advance). They think that because they call it 'rent in advance', that it's not a deposit, but in many cases, because the money is intended to be held as security by the LL, it does in fact fit the legal definition of a deposit.
                              Just to further emphasise that "rent in advance" would only be a deposit if the tenant was required to make a further payment, before the "rent in advance" was exhausted.
                              for example if the tenant paid three months rent at the begining of month one and was required to again pay rent at the begining of month 2 then the "rent in advance" would be deemed a deposit, but if rent was not then due until the begining of month 4 then it would actually be rent in advance and not a deposit.

                              Again as Westminster says there is no indication that you have done this.

                              Comment


                                #45
                                Thank you for clariying this Chappers, for what you say, it is not enough that the tenant makes a payment into the Landlord's bank account, for that payment to become a security deposit, it would have to be requested by the Landlord, and as Westminster has said before, there would have to be indications that the Landlord intended to retain that money as a deposit.
                                Maybe that could be my argument, should I need to defend, I had no reason to think that those two payments were anything else than due rent, they were make by cheque, and there is no reference next to the payment in my bank statement.

                                Regards

                                Alteano

                                Comment

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