Joint Tenancy and party to counterclaim under CPR 19.3

[peeta]

I had a contract back in 2017 with a LL where my wife is also listed as a Tenant, but I only signed the dotted line.(from the soft copies we exchanged that I can see) and cannot recall if my wife signed a hard-copy.

LL then brought a money claim and I then counterclaimed under s214 and the case is listed for a hearing under small claims track next week.

When doing some research, I found out all tenants should be 'party' to the counterclaim which I was not aware of before. So my questions are:

1) since my wife did not sign the tenancy agreement, should she be added as a party?

2) if so, what is the procedure - She needs to file a N244? or since she has full consent for me to continue the proceedings, just a witness statement from her saying so would suffice ?

I will be sharing any penalty with her anyway, but want to do this right in case this is used against me at the hearing..

appreciate any advice.

thanks

[peeta]

Hi des8 to any other senior help me out here pls? perhaps Celestine too? much obliged.

[peeta]

any update from anyone pls?

[des8]

Sorry, but don't know.

Where a defendant to a claim serves a counterclaim, the defence and counterclaim should normally form one document with the counterclaim following on from the defence, so from that point of view one would think if there are joint defendants filing a joint defence there would be a joint counterclaim.
However if you are filing separate defences perhaps a counterclaim from only one is OK

[peeta]

Hi des8 , apparently not, CPR 19.3 says that both claimants should be party to the claim...but, what I do not know is how to add another party to a an existing counterclaim..do you know anybody on this forum who might know answrer to this pls?

[des8]

Thanks
CPR 19.4 gives the directions on how:
When the rules say "an application may be made" it means on form N244 ( plus the relevant fee?)

[peeta]

ok thanks, do you know

a) what is meant by '(a) may be made without notice; and'
b) how much the fee would be ?

thanks

[des8]

• Application on notice where no other fee is specified.* £275
• Application by consent or without notice where no other fee is specified. £108

On/With notice means notification of the application to the other side, regardless of whether there is a hearing or not.

Without notice means no notification of the application to the other parties, regardless of whether there is a hearing or not.

If an application by consent or without notice/is refused and is ordered on notice the excess balance of the fee should be paid to the court to process the application on notice.

[peeta]

thanks for the clear explanation des8 , since I do not know if it has to be with or without notice, I would go with the 'without' route and let the court decide if it needs to be changed...

[R0b]

Bear in mind, if you are seeking to add an additional party to a claim then it is realistically possible that your application may not be heard until the day of the hearing and the judge might have no choice but to adjourn the hearing for a later date. This is because a party added to a claim has the right to defend themselves and therefore file a defence or admit the claim. A judge simply allowing your wife to be added and then proceeding with the hearing without a written record of a defence being filed may be grounds for appeal as being a procedural irregularity.

Should the hearing be abandoned, do not be surprised if the LL asks for you to pay wasted costs for applying at such a late stage. I'm not aware that both tenants must be added to a claim form as LL's usually have the right to sue one or the other or both. However, if she didn't sign the tenancy agreement then I'm not sure how she can be a party to the claim as she is not contractually responsible, you are.

[jaguarsuk]

I'm with Rob, if she did not sign the tenancy agreement she was not a tenant. By default she became a person over the age of 18 residing in the property.

[peeta]

Hi rob and jaguarsuk for the answers, the thing is this.

- I asked Shelter who seem to say even if a tenancy agreement is not signed, by virtue of living there, it is binding, so legally she is a tenant as myself.

- I have only come to know of this CPR 19.3, so I hope Courts will be kind to me. Also, by doing research I can see the same issue came before appeal in the case of Gladehurst Properties Ltd v Hashemi. see para 19 and 20 here: https://www.bailii.org/ew/cases/EWCA/Civ/2011/604.html

but, I am confused as to what to do now...any advice/suggestions pls let me know.

[R0b]

I asked Shelter who seem to say even if a tenancy agreement is not signed, by virtue of living there, it is binding, so legally she is a tenant as myself.

But there is a tenancy agreement that is signed by yourself and only you as suggested in your first post. Are you now saying neither of you signed a tenancy agreement and you lied about what you said? The tenancy is a contractual agreement governed by the principles of contract law and subject to any legislation relating to housing and tenancies. There is a common contract law principle called privity of contract - he who is not party to a contract cannot sue or be sued. Unless your wife signed the tenancy agreement then you are the only contractually liable to the LL, not your wife.

Also, you may very well be in breach of contract if you claim your wife has been living with you all that time and the contract forbids other people living there without the LL's permission (which could be deemed a sub-tenancy and normally forbidden under standard tenancy contract terms). You may want to think carefully how you proceed with this and get your facts straight before diving right in, otherwise you may be giving the LL more ammunition.

16. The issue about Mr Johnson's involvement in the proceedings and the appeal was important because it is, I think, common ground that any remedy which the tenants are entitled to either under the lease or under s.214 is enjoyed by them as joint tenants and can only be enforced by both of them. In these circumstances, CPR 19.3(1) requires both of them to be parties to the action unless the court orders otherwise.

I've referenced para 16 of that case you linked to. Don't see the relevance to your case. First of all the case is about the two tenants suing as claimants, not as defendants such as in your case. Secondly, we have established, unless you haven't told us the truth, that you are the named person on the contract so any deposit issue is solely yours to counterclaim not your wife. IF she is not named on the contractual documents, she has no legal right to claim any portion of the deposit.

[peeta]

Hi rob ,

thanks again, but I am not lying and no reasons for it, as I posted in #1, we both were listed as Tenants in the contact and only I signed it and exchanged via email with LL. In this case, in the eyes of law is my wife a tenant or not ? that is the burning questions.

Shelter, I think only aware of housing law, but the issue I think he is a contractual law.

LL is fully aware, I am moving in with my wife (I am not sure such verbal agreements in Tenancy are binding or not, Shelter said it is).

Another the interesting thing is the tenancy deposit which gives rise to this whole s214 counterclaim is all from me and my wife did not contribute towards it.

I have her full support and consent for me in the proceedings, and all I want to do it is to do things properly, so that LL does not raise the issue as it was done in the case above.

any idea, how I can go about it pls? is there a way to add her as a 'silent party' with her filing her witness statement consenting for the proceedings ? or is N244 is the only way?

Thanks

[R0b]

I think we need to see the contract and it's terms. There may be something on the contract that says you are signing on behalf of any other tenants listed, that you are contractually liable for other tenants, who is liable for payment of the rent etc.

If the LL has filed a defence to your counterclaim but not raised the issue that your wife must be a party to the claim, then the court should proceed on the basis that it can only judge based on the LL's defence regarding the s.214 issue. If there is nothing in the LL's defence around that, then maybe if I were in your shoes, I would take the risk and continue as is.

If the LL tries to raise that as an issue, then simply argue that it was not raised in the defence and the LL should be required to amend his/her defence ultimately leading to an adjournment and yourself seeking wasted costs. Or the LL proceeds with the hearing as is.

If your wife is on board with this then why rock the boat at such a late stage? You making the request is going to cost you more money and potentially having to pay the LL's wasted costs of an adjournment as well as additional costs of the possibility of filing a reply to your wife's defence. If you're happy pay those costs whatever they may be, then file an N244 and ask for your wife to be a named party to proceedings.

Of course if you win and your wife is not named, she could technically sue you if you don't give her the correct share.