Next step in the deposit-return saga!

[MrShed]

You do not have to reply to him at all. However, I may have been corrected on the figure - I think it may now be £9.25 per hour. I would probably reply stating that you do not have to supply any such information, and would also suggest that a simple call from him to a solicitor or (probably) the local county court would confirm the maximum hourly rate that can be charged.

[MrShed]

My simple response would be something along these lines:

 

"I have been advised that the rate stated is the hourly rate that a county court will allow for labour in small claims cases. However, I have no obligation to divulge to the other party where I have been advised of this, nor do I have any obligation to provide details of case law and/or statute law regarding this. I would suggest consulting with your own legal advisors if you want further information regarding this."

 

Something along those lines anyway! I would ring the county court to confirm the rate however.

[becka]

Mr Shed ... you are a star!!

 

Following e-mail to be sent!

 

Dear Mr Money Grabbing Landlord

 

Thank you for your e-mail. Please note below the spelling of my surname for future reference. (although my email address contains my surname he has spelt it so wrongly it hurts!!)

I have been advised that the rate stated is the hourly rate that a county court will allow for labour in small claims cases. However, I have no obligation to divulge to the other party where I have been advised of this, nor do I have any obligation to provide details of case law and/or statute law regarding this. I would suggest consulting with your own legal advisors if you want further information regarding this

 

I am still open to coming to a settlement if you wish to avoid any court action as outlined in my previous letter. For your info this was sent to you on 7th December 2006

[MrShed]

No problem....cheeky barsteward expecting you to supply him with his legal advice!

[becka]

Welll ... his time is worth £20 an hour!! And he doesn't feel he has to justify it .... how cheeky does it get?

 

Do I get to charge for the time I've had to invest? Let's see I've just had a pay rise ... double it up and apparently I'm worth about £25 an hour these days

 

Should I drop him another e saying "BTW ... when you are on the phone to your lawyer can I suggest you get them to explain the terms "quiet enjoyment" and "breach of contract" to you" See how quickly you can write a cheque out then!!!

[MrShed]

I think(I could be wrong though!) that you CAN in fact claim for some time and expenses taken in preparing for the court case....

[MrShed]

Right I've *finally* found the relevance of the figure!!! After much searching! Joa, might want to add this to one of your stickies matey

 

It is stated in the County Courts Act that an hourly rate of of £9.25 is allowable for a litigant for doing paperwork in lieu of using a solicitor. As it is much the same situation, it is deemed acceptable that this is the same reasonable rate to use for landlords performing work in lieu of using a professional. When I get a sec I will rake out the exact act and if I can find a case law!

[Esio Trot]

although we were moving on Friday 15th September, the keys were not being handed back till Monday 18th ... surely till the keys had been handed back he had no right to go in?

 

Well there is case law to say that you have not surrendered occupation until you have handed the keys back, so in effect your tenancy continues until then (and possibly longer if you haven't given notice and it has gone periodic)

 

What date did the tenancy end? If you stayed/kept keys even one day longer, then you are legally liable for another whole months rent

 

Thus be careful what you say to the owner.

[Batfink]

The tenancy ended on 18 September (this was a Monday) but, to give ourselves time to do cleaning/empty boxes etc we did the physical move out on Friday 15th. We ended up paying two lots of rent for a weekend but find it much easier this way (having moved MANY times before!)

[becka]

Notice was first sent to him via e-mail on 16th August (after leaving several phone messages) he then came round on 19th and said that he hadn't got e-mail and that it doesn't count because he doesn't open his e-mails often but that if we put it in writing then he would accept one month from that date

 

Tenancy actually ran from the 7th of month but he confirmed that he was happy for the tenancy to end on Monday 18th September

 

If he ever came back saying we would have owed him up to 7th October I would accept that as an argument with legal basis (even though the contract did not stipulate those terms) and be happy to discuss it ... but that's not what any of the issues are about.

 

And my comment was very tongue in cheek ... I will raise his ruining my quiet enjoyment if required but I'm not about to point him in the right direction when it's obvious he already hasn't got a clue!

[Joa]

Right I've *finally* found the relevance of the figure!!! After much searching! Joa, might want to add this to one of your stickies matey

Mr Shed, I am sorry I haven't been around lately; madly busy at work, plus big messy court case plus my own assignment deadline looming. I think you should write a sticky on step-by-step action when deposit is withheld. Email me a draft (do you still have my email?) and I'll see if I have anything to add (probably not as you are a pro ). This is after all one of the most popular subject, isn't it.

[Batfink]

Landlord has filed a defence in this matter.

 

It says (please note all spelling/grammar mistakes are his not mine! )

 

"I deny all of the claimants allegations & I am very happy to defend this claim for the cost of damages incurred.

 

a) I shall submitt inventory, plus pre-tenancy vidio & vidio taken at end of tenancy showing damages & condition of property.

 

b) I shall also submitt all bills, receipts & fully itemised account of all costs which are more than the deposit amounts.

 

c) I shall now be submitting additional claim for the unpaid balance of clean-up costs incurred together with the costs of defending this action.

 

The claimant did not carry out contractual obligations. She violatedd the tenancy by introducing a paying lodger.

 

She did not maintain the gardens which are the tenands responsibilitys under the tenancy documents.

 

The premises were left damaged & dirty at the end of the tenancy with considerable evidence of drug taking.

 

All aspects of damage will be submitted as vidio evidence.

 

Please refere to the itemised spread sheet account attached for actual amount owed for clean up bill e.g. £865.88p. This being £268.95p more than the tenants deposit".

 

OK - so taking his points in turn...

 

The pre-tenancy video he refers to in para (a) was taken in April 2001. We moved in in August 2004. We have no clue when he took the post-tenancy video.

 

We asked him to submit quotes for the work but he didn't, he just provided us with receipts (most of which were handwritten and didn't really say what they were for).

 

He says he will be asking for an additional amount but in the "counterclaim" section of the form he has just put a line through the boxes that ask how much he's claiming. Does this mean that he now can't make a counterclaim:? ?

 

As for the "paying lodger" (me!) - he knew when the tenancy was taken on (by Becka) that I would be moving down in a couple of months, once I'd sorted out a job etc. He saw me at the premises on numerous occasions and didn't appear to have a problem then. On occasions, the rent was paid from my bank account (and in the case of the final rent when I managed to pay him twice, he paid ME back in the form of a cheque, not Becka).

 

OK, we admit that we're not the best gardeners in the world but a lot of what needed doing was to next door's trees and the brambles from the parking area behind our back fence. Yes, the front lawn needed mowing (it hadn't been done for about three weeks) but that was because it didn't stop raining!

 

As for the "considerable evidence of drug taking" - at many points when we lived there we both smoked rollups because of the cost.

 

So - AQ has to be filed by June 6 (Landlord didn't file AoS, went straight to a Defence and didn't bother to file one on us, and it's taken us AGES to get one from the Court).

 

Shall we file a "Reply to Defence" stating why we refute his comments or just an AQ? And if so, what should we put in it?

 

MR SHED, JOA (and others) HELP!!!!

[Joa]

I would use the Section G - Other Information to comment of the defence. Use plain language; judges are familiar with "litigants in person", so there will be no expectation of legalese, bullet points are nice- clear and easy to follow.

As for counterclaim; his defence states that he ocurred costs which were "£268.95p more than the tenants deposit" but then he did not say "and I want it back", plus he did not enter any amount for counterclaim BUT he says he will be submitting a further claim.....:? I would respectfully ask the court to clarify is this a valid counterclaim or not.

I hope some procedural experts will come along to correct me if I am wrong.

[MrShed]

Late reply I know, and don't have too much to add to this. But many of his points are meaningless anyway. He can bleat on about breach of contract as much as he likes, but paying lodgers etc have caused him NO financial loss, so what has he got to sue for?!?

[becka]

I know it's been a while but other than the landlord not filing his AQ until he received an "unless order" from the Judge nothing much has happened.

 

Received court date in the post last night for November. Should take no longer than 1 1/2 hours - I know I shouldn't be worrying (but it doesn't stop the belly wobbles!)

 

Because he isn't a limited company Judge has decided we have to trek over to Weston super Mare for our day in court

 

Oh well worst case scenario is that we walk away with nothing - he can't counterclaim as he struck through the counterclaim box and therefore hasn't paid the counterclaim fee

 

Will keep you all updated

 

Becka

[MrShed]

Good luck, at least there is an element of progression!!!

[becka]

Update time!

 

Have just done my witness statement and am beginning to get v scared about this going to court lark!

 

Half of me is shaking in my boots and the other half is still outraged that the landlord so obviously ripped me off

 

Oh well ... only 2 weeks to go till it's all over and done with!

 

Becka

[Steve__M]

PS. Correct me if I'm wrong, but not turning up for the hearing without giving notice might be termed as "unreasonable behaviour", so I guess you should be ready to claim your costs in case this happens???

[Ed999]

It is stated in the County Courts Act that an hourly rate of of £9.25 is allowable for a litigant for doing paperwork in lieu of using a solicitor. As it is much the same situation, it is deemed acceptable that this is the same reasonable rate to use for landlords performing work in lieu of using a professional. When I get a sec I will rake out the exact act and if I can find a case law!

 

While Mr Shed's comment is accurate, there are two points to bear in mind -

 

1. The County Courts Act was passed in 1984, so the Court will probably have increased the hourly rate by now!

 

2. No costs are claimable in a small claim case. So even if you win, if this is a small claim you can't ask for any costs, only the court fee that you paid.

 

 

 

Advice & opinions on this forum are offered informally, without any assumption of liability. Use your own judgment. Seek advice of a qualified and insured professional if you have any doubts.

[MrShed]

1 is probably correct Ed. I disagree entirely with 2 - plenty of people on this very site have in fact successfully claimed their costs.

[Steve__M]

1 is probably correct Ed. I disagree entirely with 2 - plenty of people on this very site have in fact successfully claimed their costs.

 

According to the practice directions for a basic claim, costs can be claimed for travel and subsistence expenses, loss of earnings (up to 50 pounds per day), and court costs.

 

Any additional costs would have to come under this category:

 

Part 27.14

2(g) such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably.

 

Does this match your experience Mr Shed. (I only ask because I may be about to be sued by a large firm of solicitors for a small amount of money.)

[Ed999]

Steve M, you are mistaking two entirely seperate things.

 

No costs can be awarded in a case allocated to the small claims track, which usually means any claim for less than £5,000. (There is a small but very rarely used exception to this: if the court certifies that one party has behaved unreasonably.) The successful party can ONLY be awarded the court fees he paid, not his legal costs.

 

The question of travelling expenses and loss of earnings suffered by a witness (e.g. an expert witness) is an entirely seperate matter. This is not legal costs, it is expenses of a witness for attending a court hearing.

 

 

 

Advice & opinions on this forum are offered informally, without any assumption of liability. Use your own judgment. Seek advice of a qualified and insured professional if you have any doubts.

[Steve__M]

Ed, I'm agreeing with you! The section in the CPR called "Costs on the small claims track" groups both court costs and expenses.

 

I think Mr Shed was saying that people have successfully claimed their costs for

actually preparing for the case (ie. the £9.25 per hour or whatever), and wondered how unreasonably you had to act to get such costs against you.

[becka]

At which point did we mention claiming costs? Thanks for the advice though...

 

We haven't received any documents from the landlord so I'm going to call the Court tomorrow to find out if he's lodged any with them (we had to send to the Court and the other party a witness statement and any other documents on which we intended to rely by last Tuesday - two weeks before the Court date).

 

Can anyone advise what would happen if he hadn't supplied any documents?

[Ed999]

No costs can be awarded in a case allocated to the small claims track, which usually means any claim for less than £5,000. (There is a small but very rarely used exception to this: if the court certifies that one party has behaved unreasonably.) The successful party can ONLY be awarded the court fees he paid, not his legal costs.

 

In a case allocated to the Small Claims track, the court will NOT normally order the loser to pay any of the winner's solicitors fees (in the jargon called "legal costs").

 

If the court is considering making an award of solicitors fees ("legal costs"), it will first warn the party against who it is considering making the award that it believes he is behaving unreasonably.

 

If the unreasonable conduct continues, it will usually hold a hearing, of which both parties will be notified, to consider whether to make a "costs order".

 

Unreasonableness in this context means (a) not complying with the directions given by the court, or (b) some serious breach of the court rules, i.e. the Civil Procedure Rules (CPR).

 

It usually allows a litigant acting in person, without a solicitor, quite a lot of leeway.

 

 

 

Advice & opinions on this forum are offered informally, without any assumption of liability. Use your own judgment. Seek advice of a qualified and insured professional if you have any doubts.