Ordered to Pay Claimant's Costs for Defending an Invalid s21

[Armughan]

I urgently require advice due to procedural and timing complications in a recent Section 21 possession matter, exacerbated by prior legal misadvice.

Case Summary:

• Claim: Accelerated possession proceedings under Section 21 of the Housing Act 1988 were initiated, although a valid Section 21 notice had never been served.
• Defence: The Defence raised several significant issues, including:
  • No service of a Section 21 notice;
  • Breaches of deposit protection requirements under the Housing Act 2004;
  • Gas Safety Certificates allegedly issued without any actual inspection.

Due to a lack of legal knowledge, further losses caused by the landlord’s failure to provide correct utility meter readings at the start of the tenancy were included under a section titled “Counterclaim.” However, no formal counterclaim form (N161) was submitted, nor was any fee paid. This was included solely as part of the Defence, aiming to demonstrate the tenant's hardship due to the landlord's failures.

Outcome:

• The judge dismissed the possession claim on the basis that the Section 21 notice had lapsed.
• The court did not consider or address the substantive issues raised concerning the deposit protection or gas safety compliance.
• The judge did refer to the so-called “counterclaim,” and dismissed it without providing reasons. Subsequently, the judge made a costs order against the tenants for this element of the case, in the sum of £6,500.

I have been advised (by a layperson) that the judge may have exceeded their jurisdiction in making a costs order in respect of a counterclaim that was:

• Not formally pleaded in accordance with the Civil Procedure Rules;
• Not subject to a fee;
• Not actually a counterclaim in legal terms.

If this is correct, it would appear the costs order is irregular and possibly unlawful. The situation is now urgent as I received the court’s sealed (and backdated) order on 14 June 2025, with the order dated 1 June 2025 — significantly affecting the window for applying to set aside or appeal the costs order.

Given the financial hardship the tenants are already suffering due to the landlord's breaches, I seek immediate advice regarding:

1. The validity of the costs order under CPR and relevant case law;
2. Whether the judge had jurisdiction to award costs for an informal/non-compliant “counterclaim”;
3. The appropriate route for challenge — e.g., appeal, set-aside application, or review under CPR 3.1(7);
4. The deadline for any such application and how to preserve the tenant’s position urgently.

Your prompt guidance will be greatly appreciated given the time-sensitive nature of the matter.

[Pezza54]

Please note form N161 is not a counterclaim form. It is an appellant's notice and could be used to appeal against a costs order.

Please read "Litigation Costs - General Rules on Recovery" at www.arccosts.co.uk

You should also read CPR Part 44 - General Rules About Costs
The judge appears to have made a summary assessment of costs on the standard basis at the end of the hearing

The Standard Basis for assessing costs is the default basis. The court should assess whether the legal costs are proportionate to the matters in dispute
£6,500 for a defence to a counterclaim based on matters such as failure to provide correct meter readings at the start of the tenancy does not sound in proportion.
Was there more to the counterclaim? Did the counterclaim have a financial value? Did the claimant's solicitor provide a detailed costs breakdown?

A counterclaim can be part of a defence to a section 21 possession claim. For example the property is in need of urgent repair

The appeal should be filed within 21 days (if the judge didn't set a time limit) from the date of the court decision. Under part B section 10 of N161, the appellant can apply separately for an extension of time for
filing the appeal notice. Reasons such as the receipt of the order was delayed may be acceptable

I am unable to comment on whether the judge had the jurisdiction in this case to make a costs order. The party awarded costs against should be provided the opportunity to query the costs

I do not have any legal qualifications. Hopefully a more experienced/legally qualified forum user will correct me and/or provide additional advice

[Armughan]

Please note form N161 is not a counterclaim form. It is an appellant's notice and could be used to appeal against a costs order.

Please read "Litigation Costs - General Rules on Recovery" at www.arccosts.co.uk

You should also read CPR Part 44 - General Rules About Costs
The judge appears to have made a summary assessment of costs on the standard basis at the end of the hearing

The Standard Basis for assessing costs is the default basis. The court should assess whether the legal costs are proportionate to the matters in dispute
£6,500 for a defence to a counterclaim based on matters such as failure to provide correct meter readings at the start of the tenancy does not sound in proportion.
Was there more to the counterclaim? Did the counterclaim have a financial value? Did the claimant's solicitor provide a detailed costs breakdown?

A counterclaim can be part of a defence to a section 21 possession claim. For example the property is in need of urgent repair

The appeal should be filed within 21 days (if the judge didn't set a time limit) from the date of the court decision. Under part B section 10 of N161, the appellant can apply separately for an extension of time for
filing the appeal notice. Reasons such as the receipt of the order was delayed may be acceptable

I am unable to comment on whether the judge had the jurisdiction in this case to make a costs order. The party awarded costs against should be provided the opportunity to query the costs

I do not have any legal qualifications. Hopefully a more experienced/legally qualified forum user will correct me and/or provide additional advice

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Thank you for the input and help.

Just to clarify the matter, please see below:

The tenants submitted their Defence using standard A4 sheets and included concerns regarding utilities billing issues as part of their Counterclaim. The matter arose because the landlord, who previously resided at the property, provided utility suppliers with the tenants' personal information—including email addresses, dates of birth, and mobile numbers—without supplying meter readings. As a result, the tenants were billed for usage that occurred prior to the start of their tenancy. Despite their efforts to resolve the issue directly with the suppliers, the tenants were unsuccessful. The landlord also failed to assist in rectifying the billing based on actual meter readings at the start of the tenancy.

Consequently, the tenants' credit files were adversely affected, causing significant financial harm and impacting their ability to secure new accommodation. This situation formed the basis of their Counterclaim, which they supported with substantial documentary evidence. The core argument was that the damage to their credit files effectively trapped them in the tenancy, thereby undermining the Section 21 notice served by the landlord. The tenants did not file the Counterclaim on a separate form, nor did they pay a court fee, as they were unaware of the procedural requirements and the court never directed them to take corrective steps.

The case ultimately proceeded to trial despite the Section 21 notice being expired and the Counterclaim procedurally invalid. Approximately seven months after the notice was served, the landlord engaged a legal firm to represent them at the substantive hearing. The firm submitted a costs claim of approximately £13,000, of which £6,500 is now being sought from the tenants—largely attributed to the invalid Counterclaim. This context is essential to understanding the tenants' position and the circumstances that led to the current outcome. Regarding the value of Counterclaim, the tenants did not ask any specific amount but requested that the landlord should compensate them for the losses. The judge did listen to invalid counterclaim just for formalities. Due to legal reasons, I can not explain that how the tenants being litigant in person were treated by the Judge during the trail. But in short, they were not allowed to speak on any matter.

[Pezza54]

Sorry I am unable to offer further advice, only to say it's a pity the tenants didn't appoint a solicitor to represent them. The solicitor could have drafted their defence and counterclaim correctly and as the tenants defence was successful, should have been awarded their legal costs from the claimant

[islandgirl]

I am not a lawyer but would say the following - I do not think the counterclaim was valid - the tenants could have taken the readings at the start of the tenancy and supplied them to the company involved. I do not see that compensation would be awarded. However it is clear that the S21 was invalid and the court should reject it, as it did. I do not understand why legal costs were granted against the tenants in this case but as I say I am not a professional. It seems strange that the tenants were not allowed to put their side of the story. I can see why you want to appeal - I have no idea if you will be successful. What is your involvment in the issue?

[Armughan]

Thank you for your responses.

My involvement is just to help the family who is facing the issue as a family friend. The family was let down by a couple of local solicitors, who took the case initially after keeping the papers and initial consultation fee, but at last minute didn't respond to the tenants. So, the tenants had to file the Court papers like Defence and an invalid Counterclaim.

They faced more complex issues before the trial hearing as well. The landlord's solicitor, who work for a big legal firm asked a Second six pupil to deal with the matter from another legal firm and sent a trainee solicitor as well for the hearings. They even charged the trainee solicitor in their costs, while the Second six pupil fee costs were around £3800. The solicitor not even followed most of the CMDs in time and file the Trial bundle at last minute without even giving sufficient time to tenants or agree on the bundle, which was the basic requirement for natural justice, They tenants even raised all these issues with Skeleton arguments and even sent a email directly to the Judge just after the hearing to consider the conduct of both the landlord and their solicitor, but pointless to mention that rather than landlord or their solicitor being penalized, the tenants were penalized with the costs for an invalid Counterclaim. So, in reality due to inflated costs of the landlord's solicitor, the tenants are paying the full costs of the landlord. The tenants followed all the CMDs in time and their paper work was outclass. While the landlord's witness statement was based on hearsay and full of contradictions with their own accounts and details on the claim form.

The landlord even arranged fake gas safety certificates without any inspection for consecutive 2 years. The tenants not only arranged an independent Gas safe register engineer who proved the reality of these fake gas safety certificates and provided as evidence. They even provided the landlord's emails as evidence that in specific months, no access was requested or granted to anyone including the landlord which also proves the reality of the fake gas safety certificates. But, nothing taken into consideration, but the tenants were punished for raising the issue that how they financially suffered by the landlord.

[atticus]

That is all very well, but you said these defendants were ordered to pay the costs of their counterclaim. This suggests that there was something about that claim, the way it was pursued, and the work it became necessary for the claimant's lawyers to do as a result, that made the judge think it appropriate to make that order.

Were you present in court?

[Armughan]

That is all very well, but you said these defendants were ordered to pay the costs of their counterclaim. This suggests that there was something about that claim, the way it was pursued, and the work it became necessary for the claimant's lawyers to do as a result, that made the judge think it appropriate to make that order.

Were you present in court?

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No, I was not present with them, but as a family friend some how I helped them in their paper work. To be honest, I had no idea about that's how they end up.

The Court order wording is as below:

1. Claim and counterclaim is dismissed.
2. The Defendants pay the Claimant's costs of the Counterclaim summarily assessed in the sum of £6500 and to be paid by 15 May 2025.

As mentioned earlier, the Judge was not even willing to see the faces of the Defendants. I can write more how they were treated but there is no point to speak about it. In short, they were not allowed to speak at all. So, they were not in a position to say a single word even in their Defence.

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Their main concern now how to get away to this unfair costs order?

Apply to vary or set aside or Appeal?

But, they are mindful that it will cost them more and the solicitor add thousands of pounds in their costs.

The Counterclaim part was as below:

1. The short history what had happened due to utilities issue.
2. They tried their best to sort out the issue with the suppliers and contacted them just after moving into the property.
3. Estimated amounts they suffered (direct and indirect losses)
4. In last paragraph of the so called counterclaim, they requested the court to compensate them.

So, do you reckon that's an issue?
What further advice you can offer to help the poor family suffering all this?
What if they apply the order to set aside or varied?

The issue of Deposit protection was not part of their so called Counterclaim. This was under the heading of "Defence." . they also fiile and serve the Defence form(without any counterclaim) with their A4 Defence and Counterclaim.

In my opinion, it's not about the money, but the judge should have listened to that aspect of the Defence and should have gave some relief to the Defendants to counter the costs awarded for the so called Counterclaim.

[Armughan]

Sorry, forgot to mention that the court order was received yesterday dated as 1 June 2025.

Other than the options I think of, Is there any other way which can help the tenants to get some sort of relief from this costs order?

Is it correct that the court had no jurisdiction or should have considered the counterclaim and order the costs to be paid by the tenants?