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

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    #16
    Money Claim Online is simply a front end for the small claims route.

    Both the advice and the Civil Procedure Rules say that the small claims route is not available for deposit protection cases.
    In reality they seem to be used for that a lot.

    In theory, if you make a small claim and the route is not felt to be appropriate, it will be assigned to the Part 8 track, but I wouldn't expect that to happen.

    Please bear in mind that I have not used this process for a deposit related dispute myself, and am relying on the anecdotal evidence of users of this and other forums.
    It's almost certainly in the landlord's best interest to allow the claim to go through the small claims route, as the legal cost of defending themselves would be very high, and you seem pretty much guaranteed to win.
    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).

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      #17
      Ok I see what you are saying thanks. I do appreciate this is anecdotal but also appreciate you taking the time to respond with your opinion. I'm actually going to have a few consultations with solicitors anyway to get an idea of costs to help prepare and review the claim paperwork.

      To be frank I may well take your advice from the other thread and throw this over the fence to a no win no fee solicitor, or even a regular solicitor as I have the funds to cover the costs. I imagine if they get a claim land on their desk for a Part 8 track with legal support costs on my side they'll think twice about allowing it to get to court.

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        #18
        If you've got the funds (given the value of the claim) I'd go professional legal.
        A properly worded threatening solicitors letter asking for the deposit plus x times the deposit as penalty plus advice that the landlord should obtain professional advice because of the route that will be used would have most landlords buying new trousers in a darker shade.
        I'd guess it would become a negotiation right then.
        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


          #19
          I'm sorry jpkeates but I just cannot agree with your advice re. small claims whatsoever.

          Yes, there has definitely been cases in the past where tenancy deposit was dealt with after being submitted under small claims, but over time it has been clarified and the message has definitely gotten across to the courts and the legal & rental industry what the correct procedure is. Why would you advise someone to use a process that you know is incorrect? The advice to any LL receiving a claim issued via Part 7 small claims would not be to let it be to reduce legal cost, it would actually be to apply to the court for the claim to be struck out as invalid under the CPR, which the court would likely and been known to do. In such a case, the T would lose the original issue fee, and end up with an extra hurdle when re-issuing under Part 8 to convince the court to let them re-issue a claim that had previously been struck out.

          In the present case, the talk of small claims is pointless anyway since we are talking about a claim totalling £17.5K before interest & cost.
          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


            #20
            #KTC, IMO the CC/SCC are resp for misinterpretation of the rules/guidance for deposit non-protection claims. It was. & AFAIK still is a full Part 8 CC claim, with an initial applicant hearing fee of £1k+ with the expectation of the loser paying all uncapped legal costs, which are limited in SCC.. The switch to SCC app occurred soon after the max SCC limit was raised to £10K.As mentioned earlier, any discretionary Penalty is not a 'claimable Judebt' until awarded.
            Perhaps SCC Judge should deduct applicant Part 8 hearing fee from any award in applicant's favour?
            It was suggested the Judiciary preferred the current discretionary 1-3x penalty over the previous mandatory 3x Penalty prevent T 'carpetbaggers'.

            Comment


              #21
              KTC,

              The claim isn't for that value, as the penalty is not part of the claim being made - otherwise, I agree the small claims court would not be a possible route.

              The courts will decide the route when the claim is made. I understand your point about the SCC not being the appropriate route (and made it in my posts) but my experience (vicarious) has been that it is a successful route and is readily available.
              The "correct" route will cost a lot in up front fees and, while your point about the landlord's challenge is sensible, it would be (in my view) unlikely to get the claim struck out (as small claims are remarkably claimant friendly) but redirected, which would be suicidal for the landlord as the correct route will be massively expensive.

              All that said, your points are valid and you are undoubtably correct that small claims courts should not process claims relating to tenancy disputes.
              It's just that they do.
              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


                #22
                I guess our opinion will differ.

                It's not a risk that I would advise a T to take.
                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


                  #23
                  I agree with KTC.

                  The correct procedure is to submit a part 8 claim. The court decides which track the case then proceeds down. At that point it is most likely that the courts will allocate the case to the SCC track. Trying to circumvent this process leaves the claimant open if LL has a smart solicitor. The reaon it gets through is because court clerks are advising claimants to use N1 rather than N208 because "its a claim for money innit." (A clerks words, not mine). Then again, at their pay grade, its probably unfair to expect them to have a full and complete knowledge of the finer rules of the CPR.

                  I would caution on this though:

                  Originally posted by KTC View Post
                  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.
                  Paying a solicitor at this point (to prepare the paperwork) seemed inefficient to me as when I last did this I was quoted ~£900 for the case management and ~£540 hearing fee. If the case isn't allocated to the SCC then its time to get yourself a solicitor as the costs will be claimable. If though the case is allocated to the SCC (vast majority are) then you will only be able to claim something like £90.

                  Originally posted by mariner View Post
                  #KTC, IMO the CC/SCC are resp for misinterpretation of the rules/guidance for deposit non-protection claims. It was. & AFAIK still is a full Part 8 CC claim, with an initial applicant hearing fee of £1k+ with the expectation of the loser paying all uncapped legal costs, which are limited in SCC.. The switch to SCC app occurred soon after the max SCC limit was raised to £10K.As mentioned earlier, any discretionary Penalty is not a 'claimable Judebt' until awarded.
                  Perhaps SCC Judge should deduct applicant Part 8 hearing fee from any award in applicant's favour?
                  It was suggested the Judiciary preferred the current discretionary 1-3x penalty over the previous mandatory 3x Penalty prevent T 'carpetbaggers'.
                  I think this is disingenuous. The 1k hearing fee won't need to be paid by the vast majority of applicants (as I have said, most claims are allocated to SCC by the courts). It is also not payable upon issue, it is only payable after allocation. By that point, any LL with common sense would have settled because if T has gone that far on their own it is likely that £1k won't be a deterrent and itll be a cost added to the fee the loser pays.

                  No idea why you think it is appropriate for a judge to deduct a hypothetical fee from an award in a different track. You seem to think the judiciary are attempting to aid LLs with this complex system; all they really care about is administering justice efficiently and the biggest burden on that is LLs turning up to court using ignorance as a defence or playing brinksmanship with court costs.

                  Comment


                    #24
                    Originally posted by Ryan28 View Post
                    Paying a solicitor at this point (to prepare the paperwork) seemed inefficient to me as when I last did this I was quoted ~£900 for the case management and ~£540 hearing fee. If the case isn't allocated to the SCC then its time to get yourself a solicitor as the costs will be claimable. If though the case is allocated to the SCC (vast majority are) then you will only be able to claim something like £90.
                    In the present case, however you play it, the value of the claim (in dispute) is over 10K. Even if in the LL defence they admit they need to return the whole deposit & 1x penalty for both breaches, it would still leave a claim for a penalty of an extra 10K in dispute. And of course, if the LL were going to admit all that, we wouldn't be here. More generally, even if it'll cost a claimant £1-1.5K that's non-recoverable to get the case going, it's worth paying (if one can afford it) if they wouldn't be able to issue the claim otherwise.
                    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


                      #25
                      The penalty isn't part of the claim.
                      It hasn't been awarded and isn't owed (and might never exist).
                      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


                        #26
                        Of course the penalty is part of the claim. Otherwise, what is someone claiming in say a penalty only claim (i.e. deposit already returned)? It contributes to the calculation for "value of the claim".

                        When someone is claiming for personal injuries (as an example), nothing is awarded until judgement either, you wouldn't say that the damages claimed is zero because nothing's been awarded yet.
                        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


                          #27
                          But this isn't a personal injury claim.
                          In a personal injury claim the court is being asked to award compensation, not settle a debt.

                          This is simply a person suing someone for a debt.
                          The claim is for money owed by the other party, and the penalty is not owed.

                          It's hard to get past the fundamental area in which we agree - that the small claims court isn't the right place for these cases (and so the size of the claim shouldn't be an issue) - in order to try and agree on the details, which should probably be academic.

                          Hopefully the OP will do what they suggested and go and see a solicitor.
                          That way they'll get some expert advice and, hopefully, a strongly worded solicitors letter will resolve things without going to court at all.
                          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


                            #28
                            Thanks for input.

                            I've spoken to a few solicitors now. Mainly no win no fee types but speaking to a 'proper' solicitor later. Interestingly there's some reluctance/hesitance from the no win no fee guys when there is a disputed deposit return component to the claim. IT seems like many of these are being pushed into SCC/Part 7 route where they are unable to claim costs. The issue is apparently landlords using disputed deductions to push it down into small claims.

                            Comment


                              #29
                              It's part of the reason we were having the debate in the last few posts.
                              There's a considerable difference between what's meant to happen and what is happening in practice.

                              Hopefully the "proper" solicitor will charge you a tolerable amount for writing a firm threatening letter which would be my next step.
                              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


                                #30
                                Update: Have now engaged a solicitor. I spoke to a few of the ambulance chasers who ranged from quite cheerily up front about how they go about it to quite shadowy and obtuse when asked questions about fee structures. Luckily I found a local 'proper' solicitor (I'd actually had a quote from them during myhouse purchase) with good local name recognition that have recently started supporting these claims on 'no win no fee' basis - often for students.

                                They are more expensive (50% of claim over deposit) but seemed much more on the ball regarding the process. Will get the paperwork going and see where this ends up.

                                Comment

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