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Bel
20-02-2009, 11:40 AM
I have a connection with the LL of an assured tenant with massive arrears. Now the LL is going to give notice and if the tenant does not/ cannot move it will be section 8 through the courts.

LL is considering the potential options regarding instructing a local solicitor, or a more specialist one with a barrister at a greater cost.

What would members recommend from experience?

Also, is it likely the tenant would be granted legal aid to mount a defense with such large arrears?

agent46
20-02-2009, 12:00 PM
LL is considering the potential options regarding instructing a local solicitor, or a more specialist one with a barrister at a greater cost.



It depends on a lot of factors, and without knowing the issues it is impossible to say whether a specialist or general high st solicitor (naturally, with at least some housing law practice) is required.

The point to keep in mind is that solicitors offer advice up to a certain point, write letters on your behalf and generally manage the case, whereas barristers are specialists in drafting court papers, advocacy and offer more complex advice, but they don't engage in correspondence or manage the case.

(1) If the case is very evidence heavy and/or involves a lot of complex legal or procedural argument, then it is probably wise for the solicitor to instruct counsel to present the case at court. Possibly, although less likely, a barrister may be needed to advise on or draft the notice.

(2) However, if the case is relatively simple (the fact that there are massive arrears does not preclude the possibility that the case is uncomplicated), then a solicitor may well be able to present it themselves (presuming it remains at county court level).

(3) Sometimes solicitor will also be a solicitor-advocate and there will be no need to instruct counsel.

(4) Regardless of the complexity of the case, it is sometimes more cost effective (for their client) for a solicitor to instruct a barrister to present the case at court. For example, an 10 year PQE associate solicitor would probably have a higher charge out rate than a pupil barrister or counsel of 1 - 5 years call. Efficient subcontracting innit?

Paul Gibbs
20-02-2009, 12:18 PM
I agree with Agent46 - you probably do not need an 'expert' solicitor, but you do need someone that knows (at least roughly) what to do!

You can shop round a bit and get estimates from solicitors this also gives you the chance to talk to the solicitor and get a feel as to whether you have confidence in him.

You do not need a local solicitor particularly if a barrister will be involved with the final hearing - any solicitor can deal with notices etc and then find a suitable barrister to deal with the hearing (which will be more cost effective than the solicitor going)

Bel
20-02-2009, 12:18 PM
Thanks agent.

As long as a year ago we have had conversations with both kinds.

The locals are confident there would not be a problem obtaining possession.

The specialist picked up a certain problem with the tenancy agreement, and LL took paid advice from a barrister. In short, counsel was confident that the problem should not be fatal to our case. But I still feel inclined to cross my fingers (due to Sod's Law).

So if LL needs to use the court, I think a specialist will be in order.

How much legal fancy footwork and legal argument would be allowed to take place at the first hearing? If the case was defended, it is more than likely there will be a second hearing?

Paul Gibbs
20-02-2009, 12:28 PM
How much legal fancy footwork and legal argument would be allowed to take place at the first hearing? If the case was defended, it is more than likely there will be a second hearing?

I doubt the court would get involved in technical legal arguments - IMO it would issue directions and set the matter down for a hearing where more time is available.

Sometimes it is possible if the court is warned (i.e. when you issue) to get a longer time limit for the first hearing.

regarding Legal Aid it all depends on the facts of the case. If T's solicitors believe there is a good case LA may be granted. LA can also be granted where T does not have a good case but it is of 'overwhelming importance to him'. This gives scope for T in a bad case to still get funding, however, it is up to the Legal Services Commission as to whether public funds should be spent on the case and this is decided on a case by case basis.

Are you able to say what the defect is?

NB T's solicitors may not actually pick up on the defect - but best to be prepared

agent46
20-02-2009, 13:34 PM
As long as a year ago we have had conversations with both kinds.

The locals are confident there would not be a problem obtaining possession.

The specialist picked up a certain problem with the tenancy agreement, and LL took paid advice from a barrister. In short, counsel was confident that the problem should not be fatal to our case. But I still feel inclined to cross my fingers (due to Sod's Law).

So if LL needs to use the court, I think a specialist will be in order.

Probably best to instruct the specialist. Even if their fees are a bit higher, mistakes and delays in these cases (if the arrears are accruing daily) can also be horrendously expensive.

What is the defect in the tenancy?



How much legal fancy footwork and legal argument would be allowed to take place at the first hearing? If the case was defended, it is more than likely there will be a second hearing?

There should only be one hearing. Once the T files a defence or the relevant time limit expires, the issues in dispute should be clear. At around that point, allocation questionnaires will be sent out and the solicitors should indicate the approximate length of time required for the trial.

Providing all proceeds as planned and there are no nasty surprises such as an application for an adjournment or ambush defences/counterclaims, the judge should be able to make an order at the hearing.

Paul Gibbs
20-02-2009, 14:23 PM
Providing all proceeds as planned and there are no nasty surprises such as an application for an adjournment or ambush defences/counterclaims, the judge should be able to make an order at the hearing.


But as a part 8 claim in my experience the courts list a hearing once the claim is issued. If T enters a defence the hearing is used for directions

agent46
20-02-2009, 14:49 PM
But as a part 8 claim in my experience the courts list a hearing once the claim is issued. If T enters a defence the hearing is used for directions

1st hearings, even in defended cases, frequently result in possession orders rather than case management directions (as permitted by CPR 55.8(1)(a)), although if this one does turn out to be a complex case, the court may use it as an allocation hearing.