Suing the Council for wrongful prosecution.

[Diana M]

Re: Suing the Council for wrongful prosecution.

am preparing a letter for the Council demanding that they settle the cost which I have incurred due to negligence.

What reason did the Tribunal give for upholding your appeal?

Was it on a legal technicality or did the Tribunal rule that the Local Authority had been negligent?

Di

[Openlaw15]

Re: Suing the Council for wrongful prosecution.

Have just rung the County court as I STILL have not had had a letter of the precise determination. Have wasted 16 days on this only to be told ,that appeals have to be instigated within 21 days of the Court date (Mon 25th). I would need a Legal Aid Solictor to help me with this,....so I fear I am out of time!! I am informed that the letter is still to be sent out......

Appeals generally are required within 21 days. It's not fair as it benefits legal professionals who are so used to the legal process, but litigants in person have to struggle like hell to meet the arbitrary deadlines. The system stinks - law looks after the lawyers, not those who need it the most - ie the consumers.

[Openlaw15]

Re: Suing the Council for wrongful prosecution.

Have just rung the County court as I STILL have not had had a letter of the precise determination. Have wasted 16 days on this only to be told ,that appeals have to be instigated within 21 days of the Court date (Mon 25th). I would need a Legal Aid Solictor to help me with this,....so I fear I am out of time!! I am informed that the letter is still to be sent out......

Why not send a basic statement of appeal within the 21 dead line. Then, you could request permission for an adjournment (pause on proceedings) to prepare your claim.

[Ms Andrist]

Re: Suing the Council for wrongful prosecution.

Di, the Tribunal Judge upheld my appeal as it was clear the Council was negligent.

They applied the 'notional capital rule' (S49?) and made the error of ignoring the S49 2 (b) which clearly states that money derived from a personal injury was exempt...which was what was argued all along. I did everything within the rules and the council stuffed up.

I should never have been investigated, prosecuted and nor should I have had my benefit stopped/suspended.
As a direct result of this incompetence, ....I now have a suspended repossession order against me AND have to pay costs. I did prepare a letter/paperwork to present to the Council, but ill health has meant that it has not yet been delivered

[Openlaw15]

Re: Suing the Council for wrongful prosecution.

Di, the Tribunal Judge upheld my appeal as it was clear the Council was negligent.

They applied the 'notional capital rule' (S49?) and made the error of ignoring the S49 2 (b) which clearly states that money derived from a personal injury was exempt...which was what was argued all along. I did everything within the rules and the council stuffed up.

I should never have been investigated, prosecuted and nor should I have had my benefit stopped/suspended.
As a direct result of this incompetence, ....I now have a suspended repossession order against me AND have to pay costs. I did prepare a letter/paperwork to present to the Council, but ill health has meant that it has not yet been delivered

Ms Andrist I have only just come on this thread. I studied property law so I might be able to help. I know that tenants generally have more rights than person with mortgage problems, in legal theory anyway.

[Ms Andrist]

Re: Suing the Council for wrongful prosecution.

Yes, it is also my understanding that the SPO is in place in perpetuity unless the Order is breached. (arrears have been already paid, am up to date with the rental...and 'costs' will be paid within the 6 week time limit.)

[Openlaw15]

Re: Suing the Council for wrongful prosecution.

Yes, it is also my understanding that the SPO is in place in perpetuity unless the Order is breached. (arrears have been already paid, am up to date with the rental...and 'costs' will be paid within the 6 week time limit.)

So, if you're already paid up then why was there a suspended possession order made against you? On the other point, what exactly do you want to appeal?

[Ms Andrist]

Re: Suing the Council for wrongful prosecution.

Well, that is what I am (mentally) asking also. The LL sought repossession on grounds 8,10 and 11......ground 8 was obviously struck out....so the other grounds were for being persistently late (certainly in the last 6 months) and the level of arrears (now paid). The LL (who has also issued a section 13 for rental increase of 30%) was leaning on the fact that were the rental to rise (I referred once again to the Property Tribunal) that I would be unable to pay the rent (since I am a pensioner on benefits).
I would have been appealing the fact that the mitigating circumstances (due to a Council mistake) of an otherwise unblemished record over a period of 23 year on an Assured Periodic Tenancy should not find me with a SPO. This was all set out in my Witness statement. The only thing the Judge seemed interested in was my 'Defence Form' where I had to list my 'income' and he seemed to think I did not have enough money coming in for the situation not to occur again. Since this is my first/only anomaly in a tenure of 24 years I find the judgement harsh....since it (ground 10 and 11)is supposed to be 'discretionary'.

[Crazy council]

Re: Suing the Council for wrongful prosecution.

hi [MENTION=87701]Ms Andrist[/MENTION]

it will be interesting to see the wording on the order, and any conditions, as i mentioned before, i had only seen them grounds used, without arrears at the date, with other strong grounds...

[Ms Andrist]

Re: Suing the Council for wrongful prosecution.

Well, Crazy, that is why I have waited for 16 days to see the precise wording. I do not think the other grounds are that strong given my rental history.

[Diana M]

Re: Suing the Council for wrongful prosecution.

If you were considering an Appeal then you would need a transcript of the hearing.

The time it takes to obtain that can vary, largely because the judge has to approve the transcript before it can be released.

Sometimes it's possible to make an application 'out of time' because of this very reason.

Di

[Ms Andrist]

Re: Suing the Council for wrongful prosecution.

I am totally confused with Open Law's comments...I am just an ignorant layperson....but I do not PAY a mortgage...I rent. sorry OL, I know you are trying to help, but I cannot see how this relevant to my case?

[Openlaw15]

Re: Suing the Council for wrongful prosecution.

I am totally confused with Open Law's comments...I am just an ignorant layperson....but I do not PAY a mortgage...I rent. sorry OL, I know you are trying to help, but I cannot see how this relevant to my case?

Did your tenancy agreement have a 'forfeiture' clause in the terms (covenant). Forfeiture basically means the legal right to terminate your lease for non payment or quite possibly defaults/ or irregular payments/ different amounts.

The landlord has the legal right to take possession where payments have been missed or there have been problems paying rent. This is the law, it doesn't seem to matter about the tenancy type whether Assured Tenancy or other types. The Land Lord remedy is called 'forfeiture' and there should be a forfeiture clause (covenant) in the contract's terms. The rule is, as far as I understand, the Land Lord cannot have taken the rent from you and then decide to take proceedings against you simultaneously. As the court would view as manipulating the law which is a breach of process. So, if the LL were to take you to court the rent must have been stopped during this period, as far as am aware. This would be viewed as him impliedly stopping his action (waivering his rights etc) to take you to court, ie if your rent was still being taken. If the LL has waivered his rights to forfeiture but takes the rent from you anyway, you could appeal on this point possibly as point in law.

I think this is why you have the Suspended Possession Order (ie problems paying rent for a period) even though it's very unfair as you have been a brilliant tenant for nearly 3 decades. If you try to appeal the decision, or change your mind, the Land Lord will likely go for a costs order against you. The Suspended Possess. Order is just security so you continue to pay it. The problem is, if the tenancy is flexible the Land Lord generally can increase the rent for the use of his property, as I understand it. It just depends on the terms of contract (Covenant/s).

[Crazy council]

Re: Suing the Council for wrongful prosecution.

Well, Crazy, that is why I have waited for 16 days to see the precise wording. I do not think the other grounds are that strong given my rental history.

Hi. There may be some issues for the 'll . It's to do with how your rental term can be calculated in relation to claimibg arrears. Am on my phone atm and will look again in the morning. Tenancy contracts that old need special considerations due to relevent terms and laws at the time. I need to. Check something with a friend before I mention it to confirm something

[Ms Andrist]

Re: Suing the Council for wrongful prosecution.

Well now I am totally confused and afraid.

Have received the court decision.
In the left hand corner of letter it states:

Order for possession
(rented premises)
(suspended)

it then continues:
....and upon the arrears having been cleared last week
.....and upon a lengthy history of defaulted rent payments
...and upon it being reasonable to make the order

This order has been made and the court orders that:
1) The defendant give the claimant possession of (address) on or before 22nd August
2) The defendant to pay the current rent as it falls due first payment 5th Aug (this has been paid)

3) The defendant pay the claimant's cost of the claim......to be paid on or before 5th Oct
4)Claim struck out/dismissed

I find the wording most ambiguous and am very confused by virtue of saying I have to vacate by 22nd August and then further on to say the claim has been dismissed. What does this mean?

Also, my understanding was that the Judge gave me 6 weeks to pay the costs (5th Sept) and yet this letter states 5th October!...so which is the correct date to pay?

Help please.......