evidence for part 8 claim

[Elde]

I am in the process of filing a part 8 claim against my former landlord for failing to protect my deposit. There was a fair amount of dodgyness and dishonesty on the part of the landlord during the whole time I was there. Between other things, he issued us with "licences to occupy" instead of AST. I intend to claim that the agreement was actually an AST according to the Housing Act 1988, and following the Street vs Mountford judgment - as the landlord was not resident and did not provide services.

I have been researching the procedure for the part 8 claim, which I understand is less straightforward than the small claims process, and although I’ve written down most of the claim I still have several questions:

Is there a prescribed format for statements written by third parties that I want to use as evidence? My former flatmates have offered to write statements to confirm that the landlord did not live at the property nor provide services. Is this what is called a "witness statement", that has to include a "statement of truth"? I am asking because I’ve seen that term around but applying mostly to statements by the claimant. Apologies if the answer is obvious, but English is not my mother tongue and the legalese doesn’t help.

Less importantly, I have quite a lot of evidence including the (long) renting agreement, emails from the three deposit schemes, email exchanges with the landlord. I understand that I need three copies of everything, for the court, the defendant and myself. Is it okay to print documents double-sided?

[R0b]

Re: evidence for part 8 claim

I am in the process of filing a part 8 claim against my former landlord for failing to protect my deposit. There was a fair amount of dodgyness and dishonesty on the part of the landlord during the whole time I was there. Between other things, he issued us with "licences to occupy" instead of AST. I intend to claim that the agreement was actually an AST according to the Housing Act 1988, and following the Street vs Mountford judgment - as the landlord was not resident and did not provide services.

I have been researching the procedure for the part 8 claim, which I understand is less straightforward than the small claims process, and although I’ve written down most of the claim I still have several questions:

Is there a prescribed format for statements written by third parties that I want to use as evidence? My former flatmates have offered to write statements to confirm that the landlord did not live at the property nor provide services. Is this what is called a "witness statement", that has to include a "statement of truth"? I am asking because I’ve seen that term around but applying mostly to statements by the claimant. Apologies if the answer is obvious, but English is not my mother tongue and the legalese doesn’t help.

Less importantly, I have quite a lot of evidence including the (long) renting agreement, emails from the three deposit schemes, email exchanges with the landlord. I understand that I need three copies of everything, for the court, the defendant and myself. Is it okay to print documents double-sided?

Hello, you are correct in that your friends will need to do a witness statement and there must also be a statement of truth at the end of it e.g. "I believe that the facts stated in this Witness Statement are true." and then a printed name and signature would do along with the date it is signed.

Judges don't particularly like double sided pages and prefer single sided. If you have a lot of evidence you have to ask the question of whether it is all relevant. You should only be relying on key evidence necessary for the judge to understand what's going on and support your case. It does not mean having to include absolutely everything that may or may not be necessary.

You don't need three copies under normal Part 8 rules, the Defendant should acknowledge the claim and then file a defence with their evidence. Once a defence is filed you then have an opportunity to reply to that defence and make further comments or corrections which helps support your claim and prove your case.

[Elde]

Re: evidence for part 8 claim

Thank you very much for your answer. The notes for the claimant for a Part 8 claim say "Copy the completed claim form, the defendant’s notes for guidance and your written evidence so that you have one copy for yourself, one copy for the court and one copy for each defendant."

The landlord is currently stalling for time, pretexting illness and being away, after receiving my Letter before Action, and he’s been threatening that it would work against me if I didn’t wait for his answer. To clarify, he answered the letter, fully rejecting my claim, so I replied I acknowledged that and would be pursuing the claim. He is now demanding that I wait for a further answer! This makes me wonder if I should include the Letter before Action and the email exchange.

There is quite a lot of stuff I would be tempted to include because they show his behaviour and dishonesty all along, mostly related to the HMO licence, but as you say, they are not relevant to the deposit claim so it would probably be wiser to exclude them.

[R0b]

Re: evidence for part 8 claim

Sorry, I understand you now. The three copies relates to the service of the Part 8 Claim on the Defendant. But before I explain that, a few pointers on drafting and issuing the Part 8 claim form:

- Part 8 procedure is all about a question you wish the court to decide or where there is not a substantial dispute of fact. If you are seeking a remedy then it is always best to consider including a draft order of the remedy you are seeking which will help the judge in the longer run.

- As there is no disclosure on Part 8, all evidence you rely on is written in the application or included as part of the claim form

- Don't get too bogged down in the detail as I said above, try to keep it concise and to the point, the judge will appreciate that. If the claim is being made because of a requirement under any statute law then you need to say that the claim is being made pursuant to section X of legislation Y.

Sometimes the court may serve the Defendant with the Claim Form and relevant documents hence the copies of three documents. You could include a cover note to say please could you serve on the defendant a copy of the Claim as enclosed, though sometimes the court may say that you need serve it.

If you do serve the Claim on the Defendant then you need to include:

- The Claim Form and written evidence
- Acknowledgement of Service form N210 (https://formfinder.hmctsformfinder.j...k/n210-eng.pdf)
- Notes for the Defendant Form N208C (https://formfinder.hmctsformfinder.j.../n208c-eng.pdf)

[Elde]

Re: evidence for part 8 claim

Thanks again, that's very clear.

In this case the "remedy" is an order that the defendant pay the claimant between 1 and 3 times the deposit; although it's about money, it is a penalty required by section 214 of the Housing Act 2004, and the Civil Procedure Rules specify that landlord and tenant claims have to be made as a Part 8 claim. I have included that in the claim. Could I copy and paste the details of the claim here, personal information redacted?

[R0b]

Re: evidence for part 8 claim

Sure, feel free to post up and I can take a look if you like

[Elde]

Re: evidence for part 8 claim

Thank you, I’ve copied it below. Should I include the Letter before Action? I don’t want the evidence to pile up, but the landlord has been shifty before and I know he intends to stall for more time so I want to do everything right.


1. The claimant is the former assured shorthold tenant of the property at ///////////, and the defendant is the landlord. The tenancy started /////////// and ended ///////////.

2. The claimant is making a landlord and tenant claim under section 214 of the Housing Act 2004 (CPR 56.1 (f)) and to comply with CPR PD Part 56 2.1 the claimant is using the Part 8 Procedure. The Part 8 procedure applies to this claim (CPR 8.2(a)).

3. The claimant paid the defendant a deposit of /////////// on ///////////. The deposit was returned on ///////////.

4. The defendant has not confirmed to the claimant that the deposit was protected nor served the claimant with the prescribed information as required by section 213 of the Housing Act 2004 for assured shorthold tenancies. The three government-backed deposit protection schemes have confirmed that they did not hold the claimant’s deposit.

5. The renting agreement, titled "licence to occupy", was an assured tenancy according to the Housing Act 1988 (Part I, chapter I, Section 1) and did not fall within Schedule 1 of Part I of the same Act. The agreement was for a specific room which had a lock, so it granted in fact exclusive occupation; the landlord was not resident and provided a different address, used on this claim, to the claimant for postal correspondence; he did not provide any services, and the renting agreement specifies that "occupiers" are responsible for cleaning and maintenance. As in the case of Street Vs Mountford (1985), the letting was for a term, at a rent, and for exclusive occupation of a room, and so was a tenancy and not a licence.

6. The claimant applies under s214(4) of the Housing Act 2004 for an order that the defendant pay the Claimant a sum of money equal to between one and three times the amount of the deposit within 14 days from the date of the order.

7. The claimant also claims costs.

The claimant encloses copies of:
A the renting agreement dated ///////////.
B an email from the defendant confirming the receipt of the deposit on ///////////.
C emails from the three government-backed deposit schemes stating they did not hold the claimant’s deposit for the property.
D pictures of the lock on the bedroom door, taken ///////////.
E statements from other residents at the property at the time of the tenancy, dated ///////////

The claimant also encloses copies of notes for the defendant, the Letter before Action sent /////////// and subsequent email exchange with the defendant.

[R0b]

Re: evidence for part 8 claim

Before I comment on your claim I am not sure if you have come across any case law to support your claim but you may find the following two cases useful, I have attached them as PDF's.

Okadigbo & Anor v Chan & Anor [2014] EWHC 4729
The Claimant was awarded 100% of the deposit by the County Court but sought to appeal asking for 300%. The reason for this was that the LL's lack of experience was irrelevant as the matter was a serious failure to comply with the law (they had appointed letting agents who failed to put the deposit in a scheme). The court held that the LL's inexperience was a relevant factor since it was their first property and they had also instructed experienced letting agents. For that reason the court felt that the award of 100% of the tenancy deposit was sufficient.


Khuja v Chowdhury [2015] EW Misc B18 (CC) (14 May 2015)
In this case, the court followed the above case and said that the conduct of the LL should be assessed. Here, the LL was a professional LL and knew the rules around tenancy deposit schemes and eventually put the deposit in a scheme. The LL did eventually protect the deposit and taking everything into account, the court award two times the amount of the deposit.

Some of the factors the court may determine when awarding an amount could be:

- The conduct and behaviour of the LL
- Did the LL eventually protect the deposit and if so, how long after the tenancy commenced
- How experienced is the LL to know about the tenancy deposit schemes
- Any other relevant information to be taken into account

You may want to refer to the Chowdhury case in support of your application. If there are any quotes of the judgement that supports what you are seeking then you could include it and point the judge to relevant paragraph. Based on what you have said so far, you may have a case to be given a remedy for three times the amount of the deposit on the basis of the LL failing to put the deposit in a scheme throughout the tenancy period and if you are also aware that they hold multiple properties that could give rise to them being an experience and professional LL who should know the rules of deposit schemes. In those circumstances, the court should be minded to award three times the amount of the deposit, but no less than two times.

I'll take a look at your draft later today.

[Elde]

Re: evidence for part 8 claim

Ah, thank you. I’ll look at both documents in detail to see whether I can use anything. In my claim I mentioned the Street vs Mountford judgment.

He seems to have at least another property as he has another advert on the same website (I think there was yet another one before) but it would be difficult to prove as he is using a different name. With screenshots showing the links (the website shows other adverts from the same advertiser) and that the contact number is the same?

Regarding the landlord’s behaviour, he’s been behaving dishonestly since the beginning and I would like to use that to show that it wasn’t an accidental mistake, but as said before I'm afraid it would be too far-fetched:

1) He let multiple rooms in the property before having the HMO licence. I have evidence that he tried to hide from the Council the number of people living there, by asking us to vacate the rooms (pretexting work to be done) on the day of the inspection. I have emails from him and from the Council to prove this. He let to more people than the HMO regulations allowed, and ignored our requests for the facilities required by HMO regulations.

2) Both his mortgage provider and the HMO regulations (which he would have had to read before applying for the licence) required / recommended that he use ASTs. So whether he was new to this or not he would have been aware of the requirement. Similarly the requirement to protect the deposit was referred to in the "Landlord Handbook".

[R0b]

Re: evidence for part 8 claim

Well, you can try to suggest to the court that when determining the award to be given, it should lean towards the maximum amount it can award, based on your belief that the Defendant's character and conduct appears to be of a dishonest nature. You could then explain (1) for example and ignoring requests required under HMO Regs and then somehow weave (2) into it as well. The judge will either accept that as part of your submissions or reject it on the basis of irrelevance, or something which he/she is unable to take into account.

I've had a look at a couple of previous claims I am aware of and sort of cobbled together something below. Bit longer than yours so don't feel like you have to use it but sort of a suggestion. I am not an expert in Landlord and Tenancy stuff so i've tagged @Crazy council just to make sure the relevant legislation is correct.

P.S if you refer to the court cases you will need to include them as part of your evidence. I've left paragraph 10 blank in places for you to fill in also.

----------------------------------------------------------


1. This claim is made pursuant a tenancy agreement and to section 214 of the Housing Act 2004 (the "HA"). This claim is in compliance with CPR 56.1(f) and Practice Direction 56, rule 2.1 and which requires such claims to be made by way of Part 8 proceedings (CPR 8.2(a)).

2. The Claimant claims damages under section 214(4) of the HA and an order that the Defendant pay the Claimant a sum of money equal to between one and three times the amount of the deposit within 14 days.

3. The Claimant was a tenant of the Defendant having entered into an agreement with the Defendant (the "Agreement") which was an assured shorthold tenancy ("AST") to live at the property, ///////////. The tenancy commenced on /////////// and has since ended on ///////////.

4. The terms of the Agreement required the Claimant to pay a deposit of /////////// which was subsequently paid to the Defendant on ///////////. The deposit was returned on ///////////.

5. Under section 213 of the HA, it is a legal requirement for the Defendant to protect the deposit within 30 days of receipt and provide the prescribed information if the deposit relates to an assured shorthold tenancy. The Defendant has the option to put the deposit in one of three government-backed tenancy deposit schemes: [3 names of the schemes] ("TDS Scheme"). Failing to do so is a serious breach and entitles the tenant to bring a claim for which the court 'must' make an award in favour of the tenant of a sum which equals between one and three times the deposit amount, to be paid within 14 days (section 214(4) HA).

6. At no point throughout the tenancy period did the Claimant receive any acknowledgment or notification that the deposit had been held in a deposit scheme, nor did the Claimant receive the prescribed information required to be given to a tenant. The Claimant can confirm that none of the TDS Schemes have ever held the Claimant's deposit.

7. It is the Defendant's position that the Agreement was not an AST but instead a licence as the Agreement is headed 'licence to occupy'. The Claimant however, contends that the court must look at the substance and not the form. In Street v Mountford [1985] UKHL 4 it was held that an agreement which stated that it was a licence was nonetheless deemed to be a lease. As per Lord Templeman, the distinction between a tenancy and a licence is whether or not there is exclusive possession [at para. 3], if the agreement satisfied the requirements of a tenancy, then the agreement is in fact a tenancy and not something else [at para. 6]. Furthermore, the Housing Act 1988 sets out the requirements necessary to be considered an AST (section 1 of chapter 1 under Part I):

(a) the tenant is an individual;
(b) the property is occupied as the tenant's principal home; and
(c) the tenancy does not fall within the exceptions under Schedule 1 of the Housing Act 1988.

8. In the present case, the Claimant satisfies the above criteria and the tenancy does not fall within any of the exceptions under Schedule 1. Other terms within the Agreement also confirm that it is an AST, are that:

(a) the Agreement was for a specific room with a lockable door;
(b) the Defendant was not residing at the property and listed details of a different address;
(c) no services were provided by the Defendant; and
(d) that the Claimant was responsible for the cleaning and maintenance of the property.

Therefore, taking into account all of the above, the Claimant retained exclusive possession and the Agreement was therefore an AST notwithstanding the title given for the Agreement.

9. When calculating the amount to be determined by the court, regard must be given towards the Defendant's conduct [Khuja v Chowdhury [2015] EW Misc B18 (CC) at para. 33]. The Claimant maintains that the Defendant's conduct in failing to protect the deposit and appears to be of a dishonest nature, warrants the maximum award possible which is three times the deposit amount. In support of this, the Defendant is well aware of the TDS schemes and the obligations imposed on him to ensure that the deposit is protected within the prescribed time and that the prescribed information is sent to the Claimant. The Defendant failed to protect the deposit within the 30 days as prescribed, or throughout the tenancy period, or to provide the Claimant with any of the prescribed information.

10. Further, the Defendant would also seek to make the court aware of the Defendant's apparent dishonest nature insofar as systematically avoiding his legal duties during the tenancy period. In particular, The Management of Houses in Multiple Occupation (England) Regulations 2006 (the "HMO Regulations") requires ... Despite the Claimant requesting on numerous occasions for the necessary facilities, the Defendant ignored the Claimant's requests.

11. For the reasons set out above, the Claimant claims:

(a) a declaration that the Agreement is an AST;
(b) an order that the Defendant do pay the Claimant £XXXX.XX within 14 days, which represents a sum equal to three time the deposit amount; and
(c) application costs of £XXX.XX

[Elde]

Re: evidence for part 8 claim

Thank you for taking the trouble to write this, it’s very kind of you to help strangers on the Internet for free. I’ll donate some of the money to Shelter if I win the case, but if you know of any other appropriate charity I would be glad to do that too.

I’ve rewritten my claim including a lot of the above, the problem now is that it does not quite fit on the form (form N208). Can I list the evidence on a separate sheet between the claim and the evidence?

Also, can I just claim "costs" without being more specific as I don’t know yet what the total cost will be?

[R0b]

Re: evidence for part 8 claim

I've attached the Part 8 in word format for you so you should be able to fit on both sides. Regarding costs, you can be very general about costs but under this legislation I am not entirely sure what costs you are entitled too whether its fixed costs under small claims rules or whether you are entitled to all costs associated with the claim or just your application fees. So if you want to put 'costs' then it might be prudent to draft up a costs schedule to be included in your claim.

What I haven't put in the above either is reference to a draft order. You could insert at the end something like "The Claimant annexes a draft order in which it is seeking from the court" and include a draft order too. It is optional though but does help

[Elde]

Re: evidence for part 8 claim

Thanks again and sorry in advance for so many questions:

1) Thank you for the word file, however the text takes about the same place. Is it a problem if it spills over to a second sheet? Whether on the pdf or word file I can just about fit in the whole claim without a list of the evidence. How should evidence be referred to? Can I write it as in my draft with a list of evidence indexed at the end, only on a different sheet? Or should I mention the relevant evidence every time in the body of the claim, for instance "the Agreement (see attachment A)" ?

2) Regarding costs, I meant that there is the issue fee, the very high hearing fee (but I don’t know yet whether it will reach that stage) and possibly costs associated with preparing the claim. I’ve read somewhere that litigants in person could claim £18 an hour, is that only for small claims? To be honest I am not too bothered about reclaiming those if that is difficult or complicated to prove.

3) When attaching the relevant judgments, in my case Khuja v Chowdbury and Street v Mountford, can I just attach the relevant paragraphs or should the whole file be included? Again that is a lot of paper. I also can’t seem to find the Street v Mountford judgment as a file like the judgments you attached.

[R0b]

Re: evidence for part 8 claim

It is fine to put it on the second page where it refers to "Details of Claim (continued)".

I've had a quick look at the relevant CPR and there is no mention of costs so on that basis I would be thinking that you could only claim for your compensation and application fees. However if it is being heard in the County Court and under £10,000 then it could be argued that only fixed costs apply.

On the flip side, there is no mention of limited costs so you could argue that the general rule of costs apply under CPR 44. The LIP going rate is £19 per hour and there is no harm in putting together a Schedule of Costs, you are either going to be awarded them or your not. You could refer in the claim "Costs as shown in the Costs Schedule annexed to this claim."

As for the cases, in normal circumstances you would print the whole thing off, though if you want to keep costs low then you should print out the first page so the judge can see the case and citation of it, then followed by the paragraph you refer to. It' also helpful to highlight the section you want to refer to so the judge can look at it straight away than having to search.

I've attached Street v Mountford as PDF below but you will need to change some references in your claim as follows:

Street v Mountford [1985] 1 A.C.

Where there is [at para. 3] you will need to change to [816 at para. F]

where there is [at para. 6] you will need to replace with [819 at paras. E-F]

[Elde]

Re: evidence for part 8 claim

I meant that even with both sides, the claim is quite long and doesn’t fit in the space given, not if I list the evidence as well.

As for printing, it’s not so much the cost as the fact that it is going to end up making an enormous pile of paper!

Thank you for the judgment, I couldn’t find the text itself.