Ex-tenant threatening small claims - advice please

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    #16
    Thanks, Westminster, I get it now.

    I've been looking through previous threads about the particulars of claim, and I think the ex-tenant may have put insufficient detail. What has been written is:

    'The Claim is for the return of my rental deposit of £xxxxx less payment received of £xxxx (ie £xxxx) with regard to the property (address stated).'

    There is then the usual statement about claiming interest, but the tenant has made a mistake and is claiming interest from the day before the tenancy ended.

    Should I 'bounce this back' and ask for more particulars of the claim before I send my counterclaim? And how should this be worded?

    Thanks for your help and sorry if I'm asking too many questions, I'll be over to the library for a book about small claims on Monday!

    Stebbings

    Comment


      #17
      Whilst the particulars are very brief, do not comply with CPR, and should have included facts such as the dates of the tenancy/contract, the date that the deposit was paid, etc, the fact is that this is a 'small claim' and the T's claim is very straightforward; she is just asking for a refund of £X, money which arguably still belongs to her pending the court's decision.

      If the court thinks that the claim's particulars are inadequate, it will strike out the claim. You cannot 'bounce it back'. What you could do is make an N244 application for the claim to be struck out - but honestly, it's not worth the bother or the expense in the circumstances, and probably all that'd happen as a result is that the claimant would be told to give more details, so all you'd achieve is delaying the inevitable.

      One thing is crucial in your defence, and that is to deny the claimant's claim and say why. You do not owe any money because the T caused you to suffer a financial loss by damaging the property, and the loss exceeded the value of the security deposit you were holding (and/or you thought you had agreed a settlement??)

      Give full factual details in your defence, identify yourself as the LL and claimant as the T, give dates (of tenancy and other relevant events), etc and say that although the claimant's claim does not comply with Part 16 of CPR*, you assume that the claimant's claim relates to this tenancy. If you did refund part of the deposit (which I don't think you mentioned before), then give the date you did so, and give details of any settlement that you believe you had agreed with the T, thinking the matter settled, until you received the letter before action out of the blue on [date]. You can also point out that the tenancy ended on dd/mm/yy so the claimant's claim for interest is premature.

      Your defence and counterclaim should be formatted in concise, numbered, paragraphs. The aim throughout, with material submitted to court, is to make it easy and quick for the court to identify the relevant points, and refer to them if necessary at the hearing (e.g. 'in paragraph 13 you say that on Xth March you and the claimant agreed...' etc). The courts are very busy and judges have very limited time to give to reading submissions, esp. at the small claims level, so crucial facts can easily be overlooked if they are buried in blahblah. And you get Brownie points from the court for making life simpler. Do not include irrelevant facts, such as how you were going on holiday that particular Friday, and had an appointment at the dentist first thing, etc etc.

      Same goes for later, when you submit evidence and your witness statement(s). Do an index if necessary. You cannot be *too* organized with the paperwork. And the more organized, the more credible you come across as, as a witness.

      Note, there is a fee to make a counterclaim.

      ====
      * CPR is the Civil Procedure Rules, and Part 16 is the section relating to what statements of case/particulars of claim should include. The claimant's claim does not comply, see this link. But, as I said, not worth making an application over it, but worth pointing out the inadequacy of the particulars.

      Comment


        #18
        Thank-you so much for your time in helping me with this, Westminster. It's really appreciated and I've now ordered a copy of the book that you recommended.

        While I wait for the book to arrive, could I ask another question? I can see that if I send the acknowledgement of service, this gives me 28 days to prepare my defence. Does it likewise give me 28 days to prepare my counterclaim? I need this time as I was away from home when the papers arrived so have missed out on a few days to prepare (plus the ex-tenant made threats to take me to court in their last correspondence a couple of months ago but didn't ever write a formal letter before action with any time-scales so it has come out of the blue).

        Thank-you.

        Comment


          #19
          You can contact the court and ask for more time due to the circumstances.

          Make sure in your defence(if the claimant is claiming costs)that you state clearly that the claimant did not send you a "Letter Before Action".

          Tell the court that if you had received this, you would have been able to explain to the tenant that you had already given the tenant money back that they were not entitled to, just to get the matter resolved originally. This would have kept it out of the courts, and not resulted in you now claiming for all the losses you incurred.
          Allow tenants to protect their own deposits. I want free money when they do it wrong

          Comment


            #20
            Originally posted by Stebbings View Post
            I can see that if I send the acknowledgement of service, this gives me 28 days to prepare my defence. Does it likewise give me 28 days to prepare my counterclaim?
            Yes, I think so, as the counterclaim will form part of your defence.

            Comment


              #21
              Thanks for the replies.

              Thesaint, I'm so sorry, but your reply has confused me. I did return some of the deposit to the tenant as the financial losses incurred didn't total the full amount of the deposit. I don't understand your comment about telling the court (and the tenant) that I gave back money to which the tenant was not entitled. Please could you clarify for me.

              Since returning part of the deposit, I have now come across further small scale problems (only totaling about £30) and was prepared to write these off, but may now include them in my counterclaim. Or would this look petty?

              Thanks again for all the help, let's hope Amazon delivers that book today!

              Comment


                #22
                Originally posted by thesaint View Post
                Tell the court that if you had received this, you would have been able to explain to the tenant that you had already given the tenant money back that they were not entitled to, just to get the matter resolved originally. This would have kept it out of the courts, and not resulted in you now claiming for all the losses you incurred.
                I share OP's confusion.

                What apparently happened is that OP and the tenant agreed to settle, and OP returned the balance of the deposit, retaining a sum to cover agreed deductions for damage etc. The T was entitled to the portion that was returned to her, because that was what had been mutually agreed.

                In spite of having agreed to settle, however, the T is now claiming the remainder of the deposit.

                Originally posted by Stebbings View Post
                Since returning part of the deposit, I have now come across further small scale problems (only totaling about £30) and was prepared to write these off, but may now include them in my counterclaim. Or would this look petty?
                I would write off the extra £30, and stick to what was originally agreed by you and the T.

                Comment


                  #23
                  We're getting there, but the ex-tenant has never agreed to settle anything. After I refunded her part of the deposit, which she banked, there was a silence of 2 months (although I had asked her to raise any queries within 5 working days), and then she contested all deductions despite admitting retaining the keys and causing damage. So we've never been able to agree anything!

                  Comment


                    #24
                    You need to state the facts.

                    You sent information to the tenant regarding the deposit and deductoins. This included a cheque to cover payment of what you deemed fair based upon the contents of the letter. It is highly unlikely that the tenant just banked the cheque without first reading the letter. Cashing of the cheque and their resultant silence can easily be interpreted as acceptance.

                    Simply put you just need to argue all the points they have raised. If they have accepted liability in a letter NOT marked without prejudice then great. They can't retrospectively apply it to a document.

                    I would certainly stress the advice already given to be clear, consice and brief.
                    There is always scope for misinterpretation.

                    If my posts can be interpreted in two ways, one that makes you feel angry and one that doesn't, I meant the latter.

                    Everyday is an opportunity to learn something new.

                    Comment


                      #25
                      Thank-you, mk1fan. I had interpreted the banking of the cheque and subsequent silence as acceptance of my deductions. I'm aware that I'm not being as clear as I ought to be on here, I've been trying to avoid going too public. My court papers will be much better!

                      Comment


                        #26
                        Yes, it's not a good idea to post too much detail, as LLZ comes up high in Google searches.

                        Just tell the truth. But tell it clearly and concisely, as I said. No waffle. Bullet points approach, not War & Peace.

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