TDS County Court Claims

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  • Planner
    replied
    Originally posted by Mark Hessel View Post
    Hello All,

    I have been approached about one of these claims and have just been reading through this thread as I thought it may be the same issue.

    It is always the case that new procedures throw the Courts into disarray, and often are only resolved by the Court of Appeal's guidance. I do a lot of party wall disputes and so see Judges looking baffled regularly still. In this regard I would draw your attention to the case of Zissis -v Lukomski, access it for free at link below, bailii gives free acces to all judgements (bookmark it now)

    http://www.bailii.org/ew/cases/EWCA/Civ/2006/341.html

    Zissis required the Court of Appeal to direct which form should be used for appealing a party wall award, but they also directed that lower courts should not strike out a claim simply because the wrong form was used as long as the Court can see what it is the Claimant was trying to claim. This is obvious, but like I say, it took the Court of Appeal to say it to make it true.

    My own thoughts are that using N208 (CPR Part 8 - "CPR meaning Civil Procedure Rules" is not the way to go as there will be a likelihood of some dispute over facts. The alternative procedure for claims, CPR PART 8 is most commonly used for very contained issues i.e asking a judge to find what some wording means, or to rectify or amend a document to make sense of it. The upside of Part 8 is that it specifically says that if you use it when you should not then the Court can transfer (i.e make it into a Part 7 Claim). I have had this happen on several occassions, even though I, and learned counsel, were sure Part 8 was the way to go on a matter.

    Whilst uncertainty prevails then if in doubt issue Part 8 (N208), make specific reference to the uncertainty in your particulars, ask that if incorrect it be treated as a Part 7 and draft in that this is also in line with Zissis case. You could also refer to CPR Part 3, courts case management powers, and not forgetting CPR Part 1, the overriding objective. If in doubt and you want to make your opponent on any litigation look unreasonable you can generally find something in CPR Part 1 to quote.

    I appreciate I have just gone super technical. Sorry, but these are the kinds of issues I have to deal with all the time and unfortunately the law is not exactly set up to tell you what to do, rather it is assumed you know what to do and of you don't that is obviously your fault (this is called access to justice). Us lawyers are the only people who read the rules printed under the lid of the box on any board game (I stole that from Seinfeld).

    You can access the CPR for free at the link below, unfortunately it does not contain all the footnotes, legal commentary and other useful insights that the books I use (White Book and Green Book that all Judges also have in front of them juts to trip you up)

    http://www.justice.gov.uk/civil/procrules_fin/index.htm
    Excellent Advice (although I would be interested in hearing what the likely dispute over facts could be... isnt it yes I have complied or no I havent complied?) . Hopefully we should get some feed back on both N1 and N208 routes in next couple of weeks/month. As we have said time and time again (and if you can afford too!) wait until we have some successful cases before submitting your own.

    Leave a comment:


  • Mark Hessel
    replied
    Hello All,

    I have been approached about one of these claims and have just been reading through this thread as I thought it may be the same issue.

    It is always the case that new procedures throw the Courts into disarray, and often are only resolved by the Court of Appeal's guidance. I do a lot of party wall disputes and so see Judges looking baffled regularly still. In this regard I would draw your attention to the case of Zissis -v Lukomski, access it for free at link below, bailii gives free acces to all judgements (bookmark it now)

    http://www.bailii.org/ew/cases/EWCA/Civ/2006/341.html

    Zissis required the Court of Appeal to direct which form should be used for appealing a party wall award, but they also directed that lower courts should not strike out a claim simply because the wrong form was used as long as the Court can see what it is the Claimant was trying to claim. This is obvious, but like I say, it took the Court of Appeal to say it to make it true.

    My own thoughts are that using N208 (CPR Part 8 - "CPR meaning Civil Procedure Rules" is not the way to go as there will be a likelihood of some dispute over facts. The alternative procedure for claims, CPR PART 8 is most commonly used for very contained issues i.e asking a judge to find what some wording means, or to rectify or amend a document to make sense of it. The upside of Part 8 is that it specifically says that if you use it when you should not then the Court can transfer (i.e make it into a Part 7 Claim). I have had this happen on several occassions, even though I, and learned counsel, were sure Part 8 was the way to go on a matter.

    Whilst uncertainty prevails then if in doubt issue Part 8 (N208), make specific reference to the uncertainty in your particulars, ask that if incorrect it be treated as a Part 7 and draft in that this is also in line with Zissis case. You could also refer to CPR Part 3, courts case management powers, and not forgetting CPR Part 1, the overriding objective. If in doubt and you want to make your opponent on any litigation look unreasonable you can generally find something in CPR Part 1 to quote.

    I appreciate I have just gone super technical. Sorry, but these are the kinds of issues I have to deal with all the time and unfortunately the law is not exactly set up to tell you what to do, rather it is assumed you know what to do and of you don't that is obviously your fault (this is called access to justice). Us lawyers are the only people who read the rules printed under the lid of the box on any board game (I stole that from Seinfeld).

    You can access the CPR for free at the link below, unfortunately it does not contain all the footnotes, legal commentary and other useful insights that the books I use (White Book and Green Book that all Judges also have in front of them juts to trip you up)

    http://www.justice.gov.uk/civil/procrules_fin/index.htm

    Leave a comment:


  • cas84_utd2
    replied
    It's a T&C of the DPS... that the lead tenant must be agreed / nominated by all tenants... it's a minor point I agree, but it all adds to our case in my opinion. I'm willing to grab any ammunition I can right now!

    Leave a comment:


  • Planner
    replied
    Originally posted by cas84_utd2 View Post
    Yes individual deposit and yes joint AST in both our names.

    The DPS FAQ says that a lead tenant must be nomiated by all tenants, and the deposit will be registered under the lead tenant. Well we have not nominated a lead tenant, and in any case, the lead tenant would be me (as I take care of the admin of the tenancy, and subsequently this court action). So I disagree with the LL registering it in my flatmates name - he has no reason to pick him.

    The DPS FAQ also says that the deposit must be protected in DPS within 14 days, so the "intial requirements of an unauthorised scheme" have still not been complied with.

    So I feel there is still a case, but I am concerned about the "also" argument -that subsection 4 which relates to the 3x deposit compensation is an "also" clause following subsection 3, and if the deposit has subsequently been protected then the court can't apply section 4 as they can't apply section 3. I guess we just have to wait to see a completed case.
    I agree you have a case concerning it not being done within the required 14 days, it was just the lead tenant business im not sure about.

    Leave a comment:


  • cas84_utd2
    replied
    Yes individual deposit and yes joint AST in both our names.

    The DPS FAQ says that a lead tenant must be nomiated by all tenants, and the deposit will be registered under the lead tenant. Well we have not nominated a lead tenant, and in any case, the lead tenant would be me (as I take care of the admin of the tenancy, and subsequently this court action). So I disagree with the LL registering it in my flatmates name - he has no reason to pick him.

    The DPS FAQ also says that the deposit must be protected in DPS within 14 days, so the "intial requirements of an unauthorised scheme" have still not been complied with.

    So I feel there is still a case, but I am concerned about the "also" argument -that subsection 4 which relates to the 3x deposit compensation is an "also" clause following subsection 3, and if the deposit has subsequently been protected then the court can't apply section 4 as they can't apply section 3. I guess we just have to wait to see a completed case.

    Leave a comment:


  • Planner
    replied
    Well, print off the N208 form and read the first page of this thread for suggested wording. Also read the associated "health warning" and the fact that we dont know of any claims that have been through the process in full yet. If you can wait it might be more benificial. Keep it to strictly TDS non-compliance not the other issue. Pay your fee and submit to county court. Some are suggesting a letter before action (LBA) giving 14 days for deposit return and x3 "compensation" but I dont really see the value of this as the laws now been broken and there is no way for it to be rectified.

    Leave a comment:


  • Tink5783
    replied
    Originally posted by Planner View Post
    N208 can be submitted by yourself if thats the route you choose. From what you have written (assuming its an AST and your in england/wales) your deposit should have been protected. N208 claims are for claims where there is little scope for discussion/disagreement such as a simple yes/no answer to TDS compliance.

    You should use the N1 claim form (either money claim online website or print off and fill in like N208) for other types of claims. Although I wouldnt like to gove you advice on quiet enjoyment etc as I imagine they are noutoriously difficult!. No way should N208 be used for these types of claims (and in honest im not 100% sure if N1 can be).
    Yes it is and AST and she has confirmed it hasnt been protected and we would like to follow through with getting out deposit returned to us and possibly trying to claim for 3x and she has been messing us around a lot in the last 4 months there is another topic my partner put up "Advice please: Unauthorised Entry and TDS" which explains it in more detail including unlawful entry of people other than the landlord. But i was just wondering what I would do in order to file the claim in regards to the TDS which she has admitted in an email not having bothered doing.

    Leave a comment:


  • Planner
    replied
    Originally posted by Tink5783 View Post
    Hi I am about to go through a similar thing, I started my tenancy on 1st Nov 2007 however my flat mate had had a tenancy within the same property from Nov 2006-2007.

    We had to have a new tenancy drawn up as the landlady decided to not use the previous estate agent and just deal directly with us, as such i sent her my deposit whereas previously my flat mate had given his deposit in 2006 to the estate agent who dealt with his tenancy, this was transfered to the Landlord.

    From the legal advice I have gotten they have said that she has breeched this law and should have put both our deposits into TDS's. She has confirmed that she didn't do this due to my flat mates tenancy previously but could anyone tell me what they think. As the information i've been given suggests that she definitely should have put mine into a TDS and should have also put my flat mates in there too as it was a new T from the 1st Nov not a continuation of the previous T.

    Could you just confirm that i dont need to get a solicitor to file these forms with the county courts and i just need to put in the N208 with the evidence??

    We are also going through another matter in regards to the covenant of quiet enjoyment do any of you know if we file our claim on a N208 form as well?? any advice will be much appreciated.
    N208 can be submitted by yourself if thats the route you choose. From what you have written (assuming its an AST and your in england/wales) your deposit should have been protected. N208 claims are for claims where there is little scope for discussion/disagreement such as a simple yes/no answer to TDS compliance.

    You should use the N1 claim form (either money claim online website or print off and fill in like N208) for other types of claims. Although I wouldnt like to gove you advice on quiet enjoyment etc as I imagine they are noutoriously difficult!. No way should N208 be used for these types of claims (and in honest im not 100% sure if N1 can be).

    Leave a comment:


  • Planner
    replied
    Originally posted by cas84_utd2 View Post
    Update on my case - the LL has now protected the deposit (we received a confirmation from DPS). The DPS confirmation was sent via email to my flatmates email address, and addressed to him. So as far as I'm concerned, I, as a relevant party, have not received this information yet.

    Does the LL also have to send us something? We have only received a confirmation from the DPS so far.

    Really worried about how this is going to go now... I guess no one knows and we have to wait for a guinea pig case... I guess that'd be leigh123s case in 10 days.
    Will depend. Did you pay an individual deposit and is the AST in both your names? ... theres something on the DPS website about lead tenants etc, so they might only have to inform one of you. Just double check.

    Leave a comment:


  • Tink5783
    replied
    Hi I am about to go through a similar thing, I started my tenancy on 1st Nov 2007 however my flat mate had had a tenancy within the same property from Nov 2006-2007.

    We had to have a new tenancy drawn up as the landlady decided to not use the previous estate agent and just deal directly with us, as such i sent her my deposit whereas previously my flat mate had given his deposit in 2006 to the estate agent who dealt with his tenancy, this was transfered to the Landlord.

    From the legal advice I have gotten they have said that she has breeched this law and should have put both our deposits into TDS's. She has confirmed that she didn't do this due to my flat mates tenancy previously but could anyone tell me what they think. As the information i've been given suggests that she definitely should have put mine into a TDS and should have also put my flat mates in there too as it was a new T from the 1st Nov not a continuation of the previous T.

    Could you just confirm that i dont need to get a solicitor to file these forms with the county courts and i just need to put in the N208 with the evidence??

    We are also going through another matter in regards to the covenant of quiet enjoyment do any of you know if we file our claim on a N208 form as well?? any advice will be much appreciated.

    Leave a comment:


  • cas84_utd2
    replied
    Update on my case - the LL has now protected the deposit (we received a confirmation from DPS). The DPS confirmation was sent via email to my flatmates email address, and addressed to him. So as far as I'm concerned, I, as a relevant party, have not received this information yet.

    Does the LL also have to send us something? We have only received a confirmation from the DPS so far.

    Really worried about how this is going to go now... I guess no one knows and we have to wait for a guinea pig case... I guess that'd be leigh123s case in 10 days.

    Leave a comment:


  • Planner
    replied
    Originally posted by leigh123 View Post
    Just to update you with mine, it had a small postponement due to a clerical error with the listings at the court and is now listed for a 20 minute Directions hearing on the 18th April.

    I have been informed that this may need to be the only hearing if the case seems straightforward.

    I filed with N208, and LL has since protected the deposit, defending the claim based on the reasoning there's no longer a case because it's now protected.

    I'll update again at the end of next week!
    This is what happened with the case I refer to above and the defendants turned it from a TDDS complaince case to a general deposit deductions case. You must be very very clear and very very assertive not to let this happen.

    Leave a comment:


  • cas84_utd2
    replied
    Thats good news as that's the situation I'm worried about (LL subsequently protects deposit when served with the documents by the court).

    Be interesting to see what happens.

    Leave a comment:


  • leigh123
    replied
    Just to update you with mine, it had a small postponement due to a clerical error with the listings at the court and is now listed for a 20 minute Directions hearing on the 18th April.

    I have been informed that this may need to be the only hearing if the case seems straightforward.

    I filed with N208, and LL has since protected the deposit, defending the claim based on the reasoning there's no longer a case because it's now protected.

    I'll update again at the end of next week!

    Leave a comment:


  • Colincbayley
    replied
    Also have a case going to court for a full hearing under N208 on 20th April!

    Leave a comment:

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