Preparing a defence for a court claim for Renewal Commission

[steampowered]

1. I believe CCJs should be removed from your credit file if paid within 30 days. I believe you need to provide proof of payment.

2. Noted.

3. See my next post.

4. You should clearly explain all arguments you plan to raise in opposition to the claim. In particular, you are required to admit, deny or state that you do not have enough information to admit/deny each allegation made in the Particulars of Claim.

 

Your Defence is the first document the judge will read, so you need to use it to convince him about the merits of your case. I do not agree that filing a proper defence is 'showing your hand' because the claimant have a chance to review all the evidence you plan to submit before trial anyway. You can no longer ambush the other side with novel arguments in the court room.

 

That said, the Defence does not need to be excessively detailed - just clearly explain why the claim is denied. Details can wait until your witness statement which comes later. You can attach key documents to the Defence if you want to but there is no need to attach everything. Exchange of documents comes later.

 

5. There is nothing particularly complicated about this case and no reason why a lengthy trial should be required. It should be small claims assuming amount is under 10k.

6. The case should normally be transferred to your local court. You indicate this on the Directions Questionnaire which comes after the Defence.

7. No, this does not happen. A judge is not going to read any of the documents until you get to court unless you make a formal application asking for it. Your girlfriend may wish to consider issuing a strike-out application of the claim against her on form N244 after filing her Defence. I believe there is a court fee for this which may be recoverable from the other side but no guarantee of that.

Edited May 27, 2013 by steampowered

[steampowered]

My thoughts on your Defence:

 

I have not had the benefit of seeing the Particulars of Claim but it is considered good practice to refer to each paragraph of the Particulars and, for each allegation, admit/deny/state you cannot admit or deny.

 

It is not necessary to include so many Appendices. The judge is not going to read them. Restrict Appendices to key documents necessary for your Defence only.

 

Perhaps better explain the reasons for this transaction. The judge will not be impressed if he thinks the transaction was an attempt to avoid making the payment.

 

Paragraphs 11 and 12 - I am not sure what exactly you are alleging. Are you claiming that a different renewal commission was agred to that stated in the document? Are you claiming that no agreement was reached and the agent proceeded on the basis of your fee proposal, or perhaps the contract is void for uncertainty so a reasonable payment should be implied by the court? If so make it clear.

 

Again, the judge is not going to read through an OFT memorandum. Judges do not act like detectives or investigators. You need to bring his attention to the exact points relevant to your case. Try the following:

It is averred that Clause 1.2 of the Claimant's Terms and Conditions, which seeks to make the Landlord liable for renewal commission, is an unfair term and is cosnequently unenforceable under Regulation 8 of the Unfair Terms in Consumer Contracts Regulations 1999. The Defendant relies on the case of OFT v Foxtons Limited [2009] EWHC 1681 (Ch) in which it was held that similar renewal commissions were unfair and thus unenforceable. In particular, the Clause is unfair in the following key respects:

- It leads to a significant imbalance in the parties' rights to the detriment of the consumer. The commission is significant and remains payable even where, as in this case, the Claimant's engagement has been terminated and the Claimant is not required to undertake any further work whatsoever.

- Despite the draconian nature of the term, it is not mentioned in the Claimant's marketing material and was not brought to my attention. A typical landlord, having paid 11% plus VAT comission for year one, would not expect a repeat bill in years 2 and 3. It is a 'trap' or 'time-bomb' as described by Mr Justice Mann at paragraph 91 of the OFT v Foxtons Limited case.

 

Paragraph 49, there is no need to include a transcript of the case.

 

Perhaps refer to paragraph 1.2.11 of the T&Cs noting that renewal commission will come to an end once the property has been sold. I think you will have difficulty showing the property was sold as you remain the registered owner, but probably worth mentioning.

 

Good luck. When you approach the hearing have a proper read of http://www.bailii.org/ew/cases/EWHC/Ch/2009/1681.html and be ready to draw the judge's attention to the specific relevant paragraphs when you reach court - remember that the judge is not going to do the background research and investigative work for you, he will simply decide on what you present.

[AA123]

Hi STeamP,

 

Fantastic response, I have replied in this attachment as to keep my formatting neat and tidy, if you or anyone can offer any further thoughts that would be great and then I will have a go at draft 2.

 

My reply here to each of your points [ATTACH]44109[/ATTACH]

 

Really appreciated

[steampowered]

Addressing your points in turn:

 

Having now read the POC, I would state in your girlfriend's Defence that the POC does not name her or refer to her at all. It is advisable to specifically refer to paragraphs 5/6/7 of the POC if they contain information which is factually incorrect - be very explicit and say 'paragraph x of the Particulars of Claim is denied because ....'. They say the extension was for one year but I understand it was for 7 months.

 

On the Appendices, personally I would only include numbers 7 and 8. I do not think the others are needed - you should not include documents which are not specifically referred to in the Defence. They will need to be sent to the Claimant when documents are exchanged, and you can refer to them in your witness statement and have them in the trial bundle so that you are able to refer to them during the hearing, but all that comes later.

 

The transaction I refer to is the transaction with your girlfriend. I was wondering why you entered into this as it sounds very unusual, but tax is a valid reason. I would briefly mention that the transaction was entered into for tax reasons in the Defence.

 

I see what you are referring to with the TBC. My problem with paragraphs 11 and 12 is that it is not claer what conclusion you want the judge to reach from that. Presumably you want the judge to conclude that no commission was due for lack of agreement, but I think this is a very difficult to run because you ultimately proceeded to instruct the agent and let the property on the basis of their original fees. These paragraphs can probably stay as they are, unless the agent actually agreed a lower commission I think we will just have to live with the fact that this is a weak argument.

 

Noted that they have cover pages. I still think the cover page is far too confusing for the average consumer - I had to read it several times to work out what it means. Personally I would run the unfairness argument in all its glory and let them attempt to disprove.

 

I think it will be difficult for you to show that the transaction with your girlfriend constituted a sale. It was a license agreement and you retained ownership of the property. However I like what you have said about the agent's terms requiring you to receive rental income before the renewal commission is due, and hence no commission is due. The agent could have included an anti-avoidance clause covering rental income paid to family members or associates but they did not include such a clause. Personally I think this is your most persuasive argument.

 

A dodgy claim for interest or costs will not invalidate the whole claim. Costs are in theory at the discretion of the judge but unless there are fairly exceptional circumstances you would almost certainly be expected to pay the court fee of 120 and fixed costs of 80 (for claims between 1k and 5k) if you lose.

 

Statutory interest is normally discretionary (but in practice always awarded), however statutory interest should not be awarded where there is already contractual interest. The authority for this is section 69 (4) County Coruts Act 1984 which should defeat their claim for statutory interest. Perhaps add this reference to the Defence.

 

Glad to hear my thoughts were useful and hope the case goes well.

[AA123]

SteamP,

 

Once again a fantastic comprehensive response which is very much appreciated, I shall update my defences taking into account all the fantastic information you've provided. I will update the thread post trial and also use the Nxxx form to try and have GF removes from the claim.

 

Thanks again.

[AA123]

I have had a go at Version 2 of my defence, I have tried to create a brief overview in the initial part and then followed up with detail.

 

Appreciate any views on this, is it better, any changes recommended ?

 

[ATTACH]44247[/ATTACH] version 2.1 (minor edit to correct a missed search and replace)

 

 

All identifying features changed to fake names.

Thanks

Edited May 31, 2013 by AA123

[citizenB]

I am a little confused..

 

You have a Miss Smith, Miss (b) Smith and Miss Z

 

Are these one and the same person, or different ?

Edited May 31, 2013 by citizenB

[AA123]

Thanks I have updated the attachment to make universal single name Miss Smith

[citizenB]

Great thanks.. Only it was looking as though you had 3 different people

[citizenB]

It looks great - I hope that you get some more input as well

[AndyOrch]

Thread moved to Residential/Commercial lettings.Along with the other connected thread

 

Regards

 

Andy

[AA123]

Thread moved to Residential/Commercial lettings.Along with the other connected thread

 

Regards

 

Andy

 

Andy,

 

Personally I feel it is most unhelpful that you have moved this back to the commercial lettings part of the site, it sat there for over a week and didnt get one reply, I asked a moderator to delete it and honeybee sugested moving it to legal (as it is a legal issue) since then it has received replies and very helpful information. Please could I ask that you or honeybee or citizenb please move it back to the legal part of the site where it is receiving the 'legal' the attention and helpful replies I was hoping for.

 

Kind Regards

AA

[AndyOrch]

The defence that you have proposed is fine with regards to removing the named defendant...its should be cut and dry..the reson i moved it was if you wanted further assistance for the correctly named defendant which would be far better placed in the Residential forum.

 

I will therefore move just this one back to legal.

 

Regards

 

Andy

[citizenB]

Have sent S.O.S to another of the ST who has knowledge of lettings etc.

[andydd]

That would be me..but alas my expertise lies in freehold/leasehold issues, I cant really add much to this I'm afraid.

 

Andy

[steampowered]

Its a pretty good Defence and you raise the correct points. But the points are a bit jumbled up and there is a lot of repetition. The judge is probably not going to spend very long looking at this so I think it needs to be a bit more concise. I suggest clearly structuring your Defence into different segments with different sub-headings as follows. Keep all information within the correct sub-heading and do not be tempted to repeat yourself in other sections:

 

1) Background and disposal of property

2) Termination of tenancy

3) Unfair Terms in Consumer Contracts Regulations 1999

4) No rental income received

5) Value of the claim

6) Interest

7) Statement of truth

 

Para 31 - Remove reference to your girlfriend visiting the estate agents. This information is useless to you but helpful to the other side.

Para 36 - This is already covered at the start, delete.

Para 37 - This is already covered at the start, delete.

Para 11; Para 39-44 - Repetition. This is your Defence not your girlfriend's. Information why she is not liable should go in her Defence.

Para 46 - You need a sub-heading here "Unfair Terms in Consumer Contracts Regulations 1999"

Para 48 - New sub-heading "No rental income received"

Para 54 - Not needed, delete.

Para 55 - Not needed, delete.

Para 56 - Not needed, delete. This is your Defence not hers.

Para 57 - Repetition, delete.

[AA123]

steamP thanks again, will ammend as per recommendation, then need to get in the post this week.

[steampowered]

OK good luck.

[AA123]

....... Your girlfriend may wish to consider issuing a strike-out application of the claim against her on form N244 after filing her Defence. I believe there is a court fee for this which may be recoverable from the other side but no guarantee of that.

 

We have submitted the defence and received the directions forms, allocted to small claims, which I'm about to send back. Seeing as my GF has no link to the claimant whatsoever would now be the correct time to file for the claim to be struck out ?

 

I have looked at N244 here http://hmctscourtfinder.justice.gov.uk/courtfinder/forms/n244-eng.pdf

 

Q3 says what order are you asking the court to make ? Would anyone be able to offer some wording on this please and what I should put for these ?

Q4 have you attached a draft of the order you are applying for ?

Q5 How do you want this application dealth with ?

q6 how long will hearing last

q8 what level of judge does your hearing need

 

Finally, rather than my girlfriend having to deal with her side of things (2 young children enough on her plate) as a lay person am I allwed/able to act/attend court on her behalf the same as a solicitor would etc ?

 

Any help greartly appreciated.

 

Thanks

[AA123]

Just found this also, as we have both filed claims is it too late to write to the court asking a judge to review the case agaisnt her with a view to strike out ?

http://www.consumeractiongroup.co.uk/forum/showthread.php?308754-Should-I-bother-with-a-strike-out-application...

[steampowered]

Taking a step back, I am not sure what this strike-out application is designed to achieve. If she simply defends the claim, your girlfriend will need to go to a short hearing. If she makes a strike-out application, she will need to attend a strike-out hearing. If the strike-out is unsuccessful, she would need to attend two hearings rather than just one. A strike-out application would be appropriate if preparing for trial would cost thousands of pounds or involve huge amounts of work but not the case here. I'd be tempted to leave the strike-out and just let it go to trial.

 

You would normally file a Defence before a strike-out application, so this would be the right time if you wanted to make the application.

 

You may act as a lay representative for your girlfriend, assuming this gets allocated to small claims track. However, unlike the situation if you were a solicitor, the rules say your girlfriend MUST be physically in court.

[AA123]

Taking a step back, I am not sure what this strike-out application is designed to achieve. If she simply defends the claim, your girlfriend will need to go to a short hearing. If she makes a strike-out application, she will need to attend a strike-out hearing. If the strike-out is unsuccessful, she would need to attend two hearings rather than just one. A strike-out application would be appropriate if preparing for trial would cost thousands of pounds or involve huge amounts of work but not the case here. I'd be tempted to leave the strike-out and just let it go to trial.

 

You would normally file a Defence before a strike-out application, so this would be the right time if you wanted to make the application.

 

You may act as a lay representative for your girlfriend, assuming this gets allocated to small claims track. However, unlike the situation if you were a solicitor, the rules say your girlfriend MUST be physically in court.

 

thanks steamP good plan, so just to confirm as a layperson I can represent my GF and she doesn't have to attend court ? yes it has been allocated to small claims at this point.

 

[steampowered]

thanks steamP good plan, so just to confirm as a layperson I can represent my GF and she doesn't have to attend court ? yes it has been allocated to small claims at this point.

 

 

She does have to attend court, I'm afraid. The rules are as follows:

 

3.—(1) Subject to paragraph (2), any person may exercise rights of audience in proceedings dealt with as a small claim in accordance with rules of court.

(2) A lay representative may not exercise any right of audience:–

(a)where his client does not attend the hearing;

(b)at any stage after judgment; or

©on any appeal brought against any decision made by the district judge in the proceedings.

[AA123]

Thanks for the reply SteamP, I must have been tired when I read your inital reply, sorry about that, the MUST in caps was a giveaway !!

 

We have sent our N180's back and have received theirs today, likewise have received a reply to our defence, I have attached it below as 2 links, first one to remove personal details and second is the rest of the pages.

 

Would value your thoughts.

 

[ATTACH]44950[/ATTACH]

[ATTACH]44951[/ATTACH]

 

We dont have to reply to these do we, we can just wait now and see what the judge asks to be disclosed and if required reply later ?

 

Thanks

[steampowered]

You don't need to do anything else for now. You are not able to reply to the Reply at this stage.

 

The next step is to receive a trial date from the court with details of what you need to do - there will be dates for disclosing the documents you intend to rely on (so you will need to show them the business agreement referred to in your Defence) and exchanging witness statements.