Tenancy Deposit Scheme claim - Part 7 to a Part 8

[Guest]

Good evening,

I spent a few years working for the money claims service - methodically talking other people through how to make a successful claim only for myself to have a go and potentially fall at the first hurdle.

So to give you some context; I moved out of rented accommodation in January and due to a couple of minor issues brought up by the landlady on inspection, I was returned my deposit less about £150.

As my partner and her parents generally leave a place in far better condition than they find it, I was surprised that such minor details were brought into contention and we were charged for it.

Nevertheless, we accepted it and more through annoyance than anything else I decided to check if my deposit had ever been protected. I was surprised to find no record of this and when I challenged the letting agents they tried fobbing me off saying it had been "archived" and as the tenancy had ended, they were not obliged to prove it had ever been protected.

Eventually after much persistence they sent me a copy of the certificate in question - however this copy conveniently lacked the date of registration. It was only when this was cross-referenced by the
TDS online tool that it became clear that the deposit was only registered into a scheme two weeks AFTER I left the property. Now to me this looks like the original document was doctored to save face when the agency knew they were bang to rights.

So I then decided I would take out a money claim against them, only to be advised by a former colleague that this should have been done as a Part 8 claim and not as a Part 7.

Having done some independent research it looks like he's probably right. However with the claim having already been issued by this point and fee paid, I thought I would wait and see what the agency came back with and today they filed their AOS to say they will defend this claim.

Now, a couple of questions if I may.

1. Do I wait until the directions questionnaire stage before recommending that the case be taken forward as a Part 8? That is 'IF' I was able to do this.
2. Do I make an N244 application now to transfer the case to avoid any problems later down the line?

I understand this case is not suitable as a Part 7 as I am not claiming for money I am owed and personally suffered no financial loss other than the £150 that was retained by the landlady. However according to Tenancy law, a judge may rule I am entitled to 3 x the deposit amount should the letting agency have failed to protect it.

I'm interested to know exactly what defence the letting agency will file although I was secretly hoping in calling their bluff, they would make an offer to settle out of court.

Any advice on A. What I should do regarding transferring the claim and B. What you think my chances are would be greatly appreciated.

Thanks in advance.

Simon

[Amethyst]

Hiya, Yes you should have used Part 8 for the claim but it won't be fatal.... what did you actually put as your particulars of claim and did you use the original mcol or beta service to issue ?

As it seems likely there will be a dispute over the facts ( if/when the deposit was protected ) the claim might well have been transferred to a part 7 claim even had you issued a part 8 claim.

The landlords have acknowledged service, they may defend mentioning it should be in part 8 or they may file an application to transfer to part 8 - although if they do that they would basically be saying there is no dispute of fact - really you have just prolonged matters. For now I would wait and see what the defendant does. If applying they should put you on notice first in which case you can act if necessary to consent.

For future ref there is a useful guide to claiming tenancy deposit protection failures on the Shelter website here -> https://england.shelter.org.uk/housi...nsation_claims

"The issue of a claim using an incorrect form or method of issue will not invalidate a claim. However, the court is likely to give directions to put the matter right at an early stage." - Chancery Guide

[simonsalop]

Hi Amethyst, thanks for your response.

The POC's I sent included a transcript of the conversation I had with the letting agent, both copies of the tenancy certificate (the genuine one and the potentially fraudulent one) and the letter before action. The claim was made through MCOL as I'm familiar with most people at CCMCC.

Having understood the law as much as a layman can, I can't see what defence they could possibly conceive. Even if it materialises the deposit was protected then the fact they were unable to produce it when asked would at least probably entitle me to costs. But I guess we can only wait and see.

As I understand it, are you saying the letting agents filing a defence is not the worst thing in the world regarding it not being issued as a part 8? Because it would have had to have been heard on the same track anyway?

I read about one case where a claimant took a letting agent to court as a part 7 and as such the judge ruled they were only entitled to their deposit back as they were unable to enforce the Section 214 rule.

I'm pretty confident in the case I've presented but the only thing that gives me cause for concern are that I've not suffered any financial loss and the agents haven't served notice for me to leave.

They've clearly infringed the Section 214 rule and I'm trying to get them on a technicality, I'm concerned the judge may see it as me being a bit of a chancer with a grudge!

[simonsalop]

A defence was received on Friday disputing the full amount on the following grounds;

* The deposit was held as all others are, in a client account throughout the entire duration of the tenancy.
* The claimant received the relevant documentation in accordance with the regulations; i.e they signed the prescribed information relating to the deposit on the day they signed the tenancy agreement, they were sent the TDS information booklet via email prior to the tenancy starting
* The error was spotted by the claimant after they had left the property and the deposit had been returned.
* The deposit was registered immediately upon being alerted to the admin error.
* The claimant vacated the property on their own accord and not as the result of a Section 21 notice.
* The claimant has not provided a separate detailed POC. (This is incorrect as I did and I have signature confirming receipt of this)
* The claimant has brought the claim against the agent instead of the Landlord stated in the tenancy agreement.

I have now received the DQ. Is this the opportunity to ask for a transfer to a part 8 claim or now because there is a dispute of the facts that this is now suitable to proceed as a part 7?

Advice would be very appreciated.


Thanks,
Simon

[jaguarsuk]

They are right that your claim should be from the landlady as it is her who you entered into contract with for the tenancy and her (via her agent) who has breached the tenancy agreement by failing to register the deposit. It would then be for the landlady to pursue the agent for her loss due to their actions.

The key is in the link provided in post #2, in section 5 it says "You'll need to fill out 3 copies of the form: one for you, one for the court and one for the landlord."

I'm assuming they are acting as Litigant in Person as I'd have expected a solicitor to apply to strike out the claim due to the wrong defendant being pursued, although they may have filed a defence as a precursor to such an application.

I think your prospects of success are low given the fact you entered into no contract with the agent. I would put it down to a costly learning mistake, discontinue the claim and start the process again by issuing a LBA to the landlady.

If they do apply to strike out and are successful you'll be on the hook for what ever their costs are of filing the application, the fee of £255 for a start with potentially solicitors costs if they're using one.

Even if you discontinue they might seek to claim against you for costs of their solicitor if they are using one.

[simonsalop]

They are right that your claim should be from the landlady as it is her who you entered into contract with for the tenancy and her (via her agent) who has breached the tenancy agreement by failing to register the deposit. It would then be for the landlady to pursue the agent for her loss due to their actions.

The key is in the link provided in post #2, in section 5 it says "You'll need to fill out 3 copies of the form: one for you, one for the court and one for the landlord."

I'm assuming they are acting as Litigant in Person as I'd have expected a solicitor to apply to strike out the claim due to the wrong defendant being pursued, although they may have filed a defence as a precursor to such an application.

I think your prospects of success are low given the fact you entered into no contract with the agent. I would put it down to a costly learning mistake, discontinue the claim and start the process again by issuing a LBA to the landlady.

If they do apply to strike out and are successful you'll be on the hook for what ever their costs are of filing the application, the fee of £255 for a start with potentially solicitors costs if they're using one.

Even if you discontinue they might seek to claim against you for costs of their solicitor if they are using one.

Thanks for the response.

Rather than discontinuing and restarting a claim, would it not be more effective to make an N244 application to amend the claim form and then re-serve on the landlord?

The defendant is a litigant in person however I doubt I would be liable for costs even if the claim were to be unsuccessful as I had on several occasions asked the agency to supply information regarding the deposit protection. This was purposely withheld for reasons that have since become apparent. At no point did the agent refer me to the landlord - this is supported by the POC's.

[jaguarsuk]

Thanks for the response.

Rather than discontinuing and restarting a claim, would it not be more effective to make an N244 application to amend the claim form and then re-serve on the landlord?

Yes you could, however you would not have complied with Pre-Action Protocols and could risk her solicitor claiming unreasonable conduct on the claim when it comes to costs considerations after any ruling.

The defendant is a litigant in person however I doubt I would be liable for costs even if the claim were to be unsuccessful as I had on several occasions asked the agency to supply information regarding the deposit protection. This was purposely withheld for reasons that have since become apparent. At no point did the agent refer me to the landlord - this is supported by the POC's.

It is not for the agent to refer you to the landlord, it is for you to know who you are bringing a claim against and to conduct due diligence to ensure you bring it properly. If they were to claim wasted costs against you this response I would suggest would lead to them succeeding.

[simonsalop]

I agree that discontinuing the claim is probably the best solution at this moment in time. I am currently drafting a letter before action to the landlady and hope to reach a compromise without needing to issue a further claim but am prepared to do this if necessary.

I think the complexities of the case would render any liability for costs on my part unlikely and I am not worried about this.

Although the letting agents may not be legally liable for the deposit (as your advice and the advice of others suggest this may well be the case) the attempted cover-up (potentially fraud issue) of the deposit certificate plus the reluctance of the defendant to deal with the matter at the pre-action stage would make it near-on impossible I believe for me to be held accountable.

If at any stage before the issuing of the claim the agents confirmed the legal responsibility lied not with them but with the landlady, I would not have felt the need to pursue this claim against them any further. That I believe would also go in my favour if a case was considered for defendant's costs.

[jaguarsuk]

I agree that discontinuing the claim is probably the best solution at this moment in time. I am currently drafting a letter before action to the landlady and hope to reach a compromise without needing to issue a further claim but am prepared to do this if necessary.

The thing is we both know your landlady has not done anything wrong and that's the harsh bit about this because she's potentially going to end up with a CCJ because of these agents.

Rather than start straight off with a LBA it might be better to approach her more softly, explain that you aren't able to go after the agents directly and that would mean suing her with the consequence that she would have a CCJ on her credit file for 6 years. Suggest that if she were to settle with you 2 times the deposit plus the cost of the claim you have discontinued that you will help her pursue the agents for her loss.

She would then file a claim against them with your help with pretty much the same PoC, except it'll be because she has had to settle with you through them breaching their obligations. Her costs would be recoverable from the agents and she can claim exactly what she has to pay out to you.

That way the right party ends up with a CCJ and things are settled properly.

It does of course depend on how the landlady has treated you and whether you wish to extend such courtesies. Or how bothered you are about just getting your money and having done with it.

I think the complexities of the case would render any liability for costs on my part unlikely and I am not worried about this.

Although the letting agents may not be legally liable for the deposit (as your advice and the advice of others suggest this may well be the case) the attempted cover-up (potentially fraud issue) of the deposit certificate plus the reluctance of the defendant to deal with the matter at the pre-action stage would make it near-on impossible I believe for me to be held accountable.

They are not your defendant and I wouldn't have entertained even speaking to you had I been them at the Pre-Action stage either. You have pursued the wrong defendant, if I were them as LiP I would be pursuing you for my costs of and occasioned in dealing with the matter at a rate of £19 per hour. You are accountable for the fact you are pursuing and causing the agency a loss while they deal with a claim that is not theirs as they have never entered a contract with you.

You're actually quite lucky they are LiP as they probably won't file to strike out the claim in the way a solicitor would.

If at any stage before the issuing of the claim the agents confirmed the legal responsibility lied not with them but with the landlady, I would not have felt the need to pursue this claim against them any further. That I believe would also go in my favour if a case was considered for defendant's costs.

No it wouldn't, you signed a contract and you ought to know who you entered into a contract with, as such you should have issued the claim correctly. It is not the responsibility of the agents or anyone else to advise you who you are claiming against and I believe they would be in a good position to pursue wasted costs.

[simonsalop]

Thank you again for your advice.

I have approached the landlady in a soft, sympathetic tone and await her response. I have an inclination I am unlikely to hear back from her and will make a fresh claim against her should she not respond as per the LBA.

I disagree with you regarding costs. Maybe I haven't shared the full POC's but much of it hinges on the likely illegal doctoring of the certificate presented by the Letting Agents when this was requested.

It would seem illogical for a defendant to go to such extremes to cover their backs (or cover the back of the landlady) only to then rid their hands of any responsibility when court action was taken. While they may not be legally liable, any claim for costs would likely be dismissed outright on this basis.

[jaguarsuk]

I disagree with you regarding costs. Maybe I haven't shared the full POC's but much of it hinges on the likely illegal doctoring of the certificate presented by the Letting Agents when this was requested.

That is fraud, report it to the police. You have no civil claim against them as you have no contract with them and by lodging one you are liable for any wasted costs they have. Also, a wasted costs order against you would be a CCJ against you by the way.

It would seem illogical for a defendant to go to such extremes to cover their backs (or cover the back of the landlady) only to then rid their hands of any responsibility when court action was taken. While they may not be legally liable, any claim for costs would likely be dismissed outright on this basis.

The agents are not your defendant, they covered because they hadn't figured that out yet and may have got advice from a solicitor to find it out. You had no right to bring a claim and they should seek wasted costs against you if they have naything about them, I'd have applied to strike out the claim and asked for costs of that if it'd have been me.

You need to stop referring to them as though you have had a contract with them, you haven't, they owe you nothing and they are not your defendant. You have filed a vexatious claim against them which is an abuse of process and you'll be lucky if you just get away with discontinuing.

[simonsalop]

That is fraud, report it to the police. You have no civil claim against them as you have no contract with them and by lodging one you are liable for any wasted costs they have. Also, a wasted costs order against you would be a CCJ against you by the way.



The agents are not your defendant, they covered because they hadn't figured that out yet and may have got advice from a solicitor to find it out. You had no right to bring a claim and they should seek wasted costs against you if they have naything about them, I'd have applied to strike out the claim and asked for costs of that if it'd have been me.

You need to stop referring to them as though you have had a contract with them, you haven't, they owe you nothing and they are not your defendant. You have filed a vexatious claim against them which is an abuse of process and you'll be lucky if you just get away with discontinuing.

I think your synopsis is hypothetical for the worst case scenario and it is pretty unlikely those set of events would ever occur. It would take a brave litigant to pursue a claimant for a couple of hundred quid costs (if that) if their clients have potentially committed fraud.

By its very definition, a vexatious claim is where a claim holds no merit whatsoever. The equivalent would be me taking a letting agency to court for a claim about a house I never lived in. The fact that you've just suggested the letting agents were considering whether they had any liability in the claim is enough to quell that particular concern.

[jaguarsuk]

Any claim against the agent holds no merit as they have never entered into contract with you.

Good luck with your claim.