Question about the small claims process re: deposit protection & supporting evidence

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    Question about the small claims process re: deposit protection & supporting evidence

    Hi,

    I have a specific question about the process for the deposit compensation small claims track.

    I have the n208 form and guidelines however I've a question about the supporting evidence.

    The guidelines simply say that the written evidence has to be filed with the claim form (for which I understand the template approach to the claim wording). I have tonnes of supporting evidence in the form of email and letters between myself and landlord and MyDeposits as well as consultations from third parties. Is there a specific form that the supporting evidence must be filed in or do you just print out all your evidence and take it along with the claim form. Does it need to be headed or marked in some way?

    Also as part of the evidence can you also make a witness statement yourself: for example I want to draw attention to the fact that I have made repeated attempts to offer the landlord to settle the issue with constant refusal to engage with me. I have letters to back it up but also want to draw attention to the fact and realise the claim wording is not the place to do so.

    Any help greatly appreciated

    #2
    I'll start off with a small technicality, deposit protection penalty claim is not "small claims" which uses a different form with different fees applied. The n208 you have is the correct one to use.

    In terms of templated language for the claim form, this modified NUS document is a good start. Ignore the bits about how much the issue fee is which is incorrect, you're looking at a fixed issue fee of £308 (at the time I'm writing this). If you haven't already sent a letter before action, there's a sample one in the NUS's doc. Alternatively, Shelter has good advice and templates. Mark each individual supporting evidence that you referred to in the claim form: e.g. "is attached to this claim form marked 'A'". I haven't seen anywhere that say you have to exhibit supporting documents that goes with the claim form.

    Yes, you can, and probably should include a witness statement. Note the various & wonderful rules that goes with producing a witness statement, which include the requirement to exhibit any evidence that goes with the witness statement.

    Three copies of everything.
    I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

    I do not answer questions through private messages which should be posted publicly on the forum.

    Comment


      #3
      Other l'eagles have opined the correct path for deposit non-protection claim is full CC Part 8 process, with initial Court fee of £1000+ and risk of uncapped other Party legal expenses for the loser.
      Only in the last 2-4 yrs has SCC been deciding deposit non-protection cases. If proven the min a Judge can award is return of full deposit (from which LL can still make allowable deductions) +1x deposit as Penalty. Any higher Penalty, to max 3x, is at Judge's discretion and cannot be considered as a claimable debt owed. prior to award.

      Comment


        #4
        KTC,

        Thanks - this is where I am maybe a bit confused. The claim form will not have space for me to make reference to all evidence. Say for example I have all the email conversations and individual letters, tenancy agreements, deposit protection certificate etc, other evidence disputing deductions including advice from solicitors, mydeposits etc

        I understand what I need to do regarding the claim wording (per the NUS doc for example) but how and in what form am I supposed to include all of the support evidence (of which there will be lots). There will not be space to reference each individual piece of evidence (say each individual email) and explain why its evidence in the claim form itself. Do I need to create an index cover page for all the evidence and if so is there a specific format for it? Would it maybe make sense to group it into the 4 or 5 main pieces of evidence lets say A- Tenancy agreements, B - Communications between landlord and tenant, C - Discussions with mydeposits etc...

        Comment


          #5
          You only include what's relevant to substantiate your claim, and in the witness statement also anything that may affect say the amount of penalty awarded. Things like solicitor's advice to you (generally speaking) have absolutely no place anywhere in it.

          Having thought about it again, I'd alter my above advice to just present full details of your claim on the claim form, and then to include all the evidence along with your witness statement (appropriately exhibited).

          Use the NUS's template for example to set out your claim form:
          You were an AST of XYZ ...
          This is a L&T claim ...
          Part 8 ...
          You paid a deposit on X/Y/Z and not returned ...
          Details of what legal breaches has occurred ... (Not protected x 2, not given PI etc.)
          Asking for return & penalties ...
          Under s214 HA 2004 ...
          Interest & Cost.

          Then in your witness statement you basically walk through a timeline of your tenancy and since to date which will allow you to cite the evidence at the appropriate point, then include the evidence with the WS (per the rules):
          I, Joe Bloggs, ...
          On X/Y/Z signed tenancy agreement. Refer to TA JB 1 ...
          On X/Y/Z paid deposit of £XXX. Refer to proof of payment JB 2 ...
          ...
          This happened on X/Y/Z, refer to email JB 20 ...
          ...
          Evil LL gave me certificate on X/Y/Z, refer to certificate ...
          Contacted MyDeposits, who said protection not valid because of this & that, refer ...
          ...
          I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

          I do not answer questions through private messages which should be posted publicly on the forum.

          Comment


            #6
            Thats helpful thanks - I saw the witness statement rules, I assume what I can do is write the witness statememt and put the appropriate Statements of Truth etc on it and include the indexed evidence as appendix to that statement.

            This is going to be a giant pain in the hole so I just want to make sure I get it all right!

            Comment


              #7
              One point of consideration - given my deposit is c2500 and there are two separate breaches. The claim could be over 10k including return of deposit. Does that change anything in terms of process?

              Comment


                #8
                Originally posted by CDESPO1 View Post
                Thats helpful thanks - I saw the witness statement rules, I assume what I can do is write the witness statememt and put the appropriate Statements of Truth etc on it and include the indexed evidence as appendix to that statement.
                Word processed and not handwritten. Basically yes, sufficiently large size font, 1.5 or double spacing, sufficient margin, paginated, with numbered paragraphs. Include required information at the top of the 1st page (have a google around for examples). Signed statement of truth at the end of the statement itself. Then possibly a back cover sheet that basically repeats the required info from the top of the 1st page.

                Originally posted by CDESPO1 View Post
                One point of consideration - given my deposit is c2500 and there are two separate breaches. The claim could be over 10k including return of deposit. Does that change anything in terms of process?
                No, since we are talking about Part 8 anyway. The 10K limit only relates to whether a money claim can be put straight in as a small claims.

                If you are finding this a bit much, then I would advise you to consider getting a solicitor. See if you can find one that will do it on a no win no fee basis, or alternatively just pay for one to prepare the claim for you on a fixed fee and then represent yourself in court if there's a hearing. Since this is a Part 8 claim, you can claim back legal cost if and when you win. If you do get yourself a solicitor advocate, just make sure they are one that has specialism in landlord & tenant law.
                I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

                I do not answer questions through private messages which should be posted publicly on the forum.

                Comment


                  #9
                  Thanks I think i'm on top of it all. I just like to be thorough. This LL is a sneaky sod so just making sure I'm doing everything by the booK!

                  Comment


                    #10
                    Originally posted by CDESPO1 View Post
                    One point of consideration - given my deposit is c2500 and there are two separate breaches. The claim could be over 10k including return of deposit. Does that change anything in terms of process?
                    AIUI only SCC has max claim limit of £10K currently and you cannot use Part 8 pathway for SCC.
                    If you are claiming via SCC, just claim for return of deposit; the Penalty is not yet a debt. It is possible Judge may only grant 1x deposit for each breach. Above that is at Judge's discretion.

                    Comment


                      #11
                      Cheers appreciate the input mariner. Also thanks everyone else for the input.

                      I think I'm clear on process and procedure and have been scouring through the CPRs to make sure I have everything in order.

                      Its all fairly nerve-wracking stuff despite having a fairly open and shut case - at the end of the day the indisputable facts are that the deposit was late on tenancy one and then not protected during the entire length of tenancy two.

                      I can see why so many tenants bottle it prior to taking it to court though - and hence why some landlords take advantage of this. I know of a number of this particular landlord's former tenants who have experienced similar situations - but didnt have either the leverage I have regarding the deposit mess up or the knowledge of their rights - and ending up losing their entire deposit.

                      Hopefully I get a positive outcome on this one.

                      Comment


                        #12
                        Once you've been through the process it becomes much less daunting.
                        The chances are good that the landlord will simply fold when the legal papers are delivered (make sure they include the court fee when they pay up, don't cancel the case until they pay in full).

                        Once you've got the money claim account set up, you can be much more confident about your rights generally (not just for dealing with trying it on landlords).
                        When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                        Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                        Comment


                          #13
                          Yep - and sorry if I'm asking one further question but when you reference money claim account - I'd been working on the assumption that because this is a joint claim against the return of the deposit and the breaches of deposit protection, the whole thing would go through the Part 8 procedure. I'd understood the moneyclaim online route would be if I was just trying to recover the deposit without compensation claim.

                          Comment


                            #14
                            Small claims courts aren't meant to impose the penalties, but, in practice, they do.
                            So make the claim via the small claim court for the return of your deposit, and, as part of the claim, point out that the deposit wasn't protected and ask the court to award the penalty.
                            It's a penalty award not a compensation claim.

                            The landlord can ask that the claim be switched to the other track, but it's a routine matter and they seem to be sent down the small claim route.

                            If you are not planning to use the small claims process, you would be best to get proper legal advice, as the small claims route is less formal and designed to be flexible.
                            Lots of claims fail for procedural reasons using the more grown up process.
                            When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                            Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                            Comment


                              #15
                              Got you thanks. I had been working on the assumption I'd need to go via the country court in a Part 8 procedure to go after the deposit plus penalty. I'd looked at the government's moneyclaim online page and they seemed to be fairly explicit on there that you cant use that service for deposit return or penalty claims https://www.gov.uk/make-money-claim-online

                              The online claim appears to simply be an online portal for small claims Part 7 procedures?

                              Clearly if I can use the small claims route and moneyclaim online and request the penalty for non-compliance on the deposit, it would make things significantly easier but I just dont want to make any mistakes in the procedure that could jeapordise it

                              Comment

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