Notice of Discontinuance. Possession proceedings.

[San90]

Hi good helpful people,

Private tenant here. I was taken by my private Landlord to Court for non-payment, Ground 8, 10, 11. Payment (Housing Benefit) was withheld for breaches of disrepair and broken promises. I filed initial defence and counterclaim online (Deposit protection and other breaches). I reduced any rent arrears to below 2 months. At the court hearing, directions given to file defence and counterclaim within 14 days.

I received from Claimant's representative Notice of Discontinuance addressed to the Court and me and they say Please place upon the Court file for approval. Does that mean I have to consent to it?

I wish to continue with my defence and counterclaim, what is the best option for me here, what will happen to my defence and counterclaim? Do I still need to follow the Court's directions and file my defence within 14 days ( a few days left)?

Thank you

[Pezza54]

Hi
Welcome to LB
Please read Practice Direction Part 38 - DISCONTINUANCE
In particular 38.2 "Right to discontinue claim" and 38.3 and "Procedure for discontinuing
Also 38.4 "Right to apply to have notice of discontinuance set aside"

If the court agrees with the claimant's request to discontinue the claim you will have to make an application to set aside the court order.

Your counterclaim should not be affected and should proceed.

Under 38.5 (1) discontinuance takes effect from the date the notice was served on you, but 38.5 (2) states the claim in brought to an end subject to rule 38.4 (an application is made to have the notice of discontinuance set aside). In my opinion, others may disagree, you should still file your defence and state you intend to apply to set aside any order to discontinue the claim

[San90]

Many thanks for the answer and for providing the guidance, PEZZA54.

So the claim deemed discontinued as I write and the directions given are abandoned. I don't see why the Court will disagree. Once approved, I have 28 days to apply, if I wish, to set it aside.

The claim was made online and I replied to the claim late online and submitted an initial defence and counterclaim. Then, the Claimant's representative sent me the Claimant's Bundle and included my initial defence and counterclaim. A few hours before the court hearing I sent via email my 'Response Bundle to the Claimant's Bundle'. to the Court and the Claimant's representative.

At the Court Hearing, I was represented by the Court Duty Adviser and directions given to file defence and counterclaim within 14 days and we left my Response Bundle papers with the Judge.

I am confused here, when the directions state 'to file Defence and Counterclaim within 14 days' do I need to make a fresh defence and counterclaim or just expand on the one I already submitted online. What form do I need to complete? Is it the same N11R but offline or do I need to complete another form for money claim. I am lost here. The Court after submitting my Response Bundle and after the Court Hearing did email me to ask the amount of fee to put on the form because I included help with fees exemption ref number.

If my Counterclaim is not affected by the Discontinuance, how this is going to proceed, do I still need to follow the directions and file it within the given 14 days?

I much appreciate help and guidance in this matter.

[Pezza54]

Was it a preliminary hearing you attended? To obtain case management orders?
The defence and counterclaim are normally one document with the counterclaim following the defence.
You need to pay the court fee for the counter claim

If you know the email address for the allocated court, you can attach your defence and counterclaim document to an email. Provide your phone number and a convenient time slot so the court can ring you to take the payment for court fees

Court bundles are normally agreed between claimant and respondent before filing. Did the judge ask you both to agree on an appropriate court bundle?

This is a chance to get your defence and counterclaim right, so take the opportunity the court has given you. Make sure you submit it by the deadline

My advice is to use form N9B and if there is insufficient space for the defence and counterclaim, use separate sheets of paper headed with the claim number

[San90]

Thank you once again for your kind reply ands assistance.

The Court Hearing was the standard 10-min for possession. Once the Judge established Ground 8 dropped and arrears below 2 months and established the late deposit breach, it was ordered the Claimant to file an amended claim form and particulars of claim, Defendant to file defence and counterclaim within 14 days, another 14 days for the claimant to respond and then a further directions hearing.

Claimant's legal representative never contacted me or talked to me to agree anything, received their Claimant's Bundle and I tried to reply to it with Defendant's Response, I included all the evidence including historical messages between the Claimant and the Defendant related to my defence and counterclaim and evidence of reporting issues in the property and about Claimant's conduct and behaviour etc.

The Judge did ask me why the late submission of my defence and counterclaim. And did ask me who wrote and prepared my last-minute Bundle. I say Bundle, I am not sure what you call it but the Duty Advisor call it that way. It was like 80 pages with all these supporting documents and evidence.

What I don't understand is the Court emailing me back after submitting the Defendant's Response and asking me for the amount of the fee for them to put it on the form, what form they were referring to?

If I specify the amount of the counterclaim on the form N9B , can this be changed/amended later on or can the Court order more than the amount specified?

When completing the form, do I need to attach all the documents and evidence supporting my counterclaim or wait for further directions?

Thank you

[Pezza54]

I apologise
Please read Practice Direction 55A
You should submit your defence using form N11R not N9, and attach your evidence etc (See 55.8 THE HEARING 5.1 and 5.3)
Keep all your evidence in logical order, cross-reference to your defence where possible. If there is a lot of documents you could write a reference number in coloured ink on each document.

At Shelter England there is an article titled "Ground 8 possession" which gives possible defences. Worth a read

In PD 55A there was a brief mention of a counterclaim but failed to state how it should be presented. Forget form N9 and attach it after your defence, before the evidence.

There is no mention of fees for filing a defence but there will be fees for your counterclaim. The fee will be calculated on the value of your counterclaim so it is best to make sure your claim is accurately calculated

[Pezza54]

There is another informative article at Shelter England titled "Possession proceedings process"
The article states that the tenant should submit a witness statement if they dispute facts contained in the poc.

There are examples of common counterclaims under the "Counterclaims" heading