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Shumna
21-10-2009, 08:04 AM
Hi please can some one help me.

A tenant moved into my property in March 2007 (he paid 260 for the rent and 260 for the deposit). At the time he rented a single room. 2 months later a double room came available and he wanted to move. So he paid an addition 100 for the deposit and also an additional 100 for the rent.

I DID give him a new contract in May 2007. The contrcact since that time has never been renewed.

In July 2008, he was struggling to make payments so the rent was moved from his actual date to the beginning of the month to coincide with his monthly wage to make it easy for his payments to be made.

So in July I was paid on the 12th in August no payment was made and then on the 1st September a payment for the rent was made.

All payments were made via standing order and a record of these payments were made electronically.

Effectively he was behinde on his rent but this was not an issue as such. NO record of this agreement was made other than him paying his rent on the new date.

AT the same time he was struggeling to pay me the boiler was not working causing hot water issues. This delay was for 10 days. I amnaged to get the water sorted out but in the meantime another tenant had called the council. The Health and Safety officer gave me a list of work to do.

The house has a loft room which has a toilet and sink there as well. Although the room was not used as accomadation there was a bed there for storage as well as a wardrobe and a spare tv. I left these there in case I needed them elesewhere int he houe.

Occassionally the toilet was used by Tenants should the need arise.

Moving onto 2009 in March the tenant in question said he was not able to make rental payment anymore due to bank issues and decided to pay in cash. The at the end of March he said that the house was in a bad state of repair so would be holding back payment until the work was repaired.

Please also note that he had purposely ripped up a portion of the carpet as he claimed this was not safe. He had also put tape around the bath tap as he said ther was not enough pressure in the shower.

In order to compromise what we agreed was that he would do the work that was required and that if he did this work his rent would be used as payment for the work. I drew up an agreement and we both signed it. The agreement confirmed that as his rental period began on the first all work must be completed before the 30th of June.

The work list involved all the work he had complained about including painting the house (even though it was decorated a year ago)

He started work but got another tenant to help him but then disappeared from the house. He said he was in potugal and would be back on the 29th of June. This would not be enough time to complete the work so I incurred additional costs by getting other peopel in to do the work. In addition he had damaged my kichen worktop and also a vinyl for the hallway.

Mid June tenant saw him move all of his stuff out of the house. They also said that the tenant in questioned tried to take some of my tools with him but was stopped form doing this.

On the 1st of July I came to the house and found the room empty and keys on the bed.

I changed the lock on the bed door and the front door from fear of theft.

On 4th July he sent a text saying that his tenanccy expired on the 12th and that he wanted access to the house. He then over 2 weeks sent about 400 abusive texts. When he started talking about my wife I complained to the police and they alced an harrassment order againts him. As he was only giving his work address for communications I sent a letter to him there as well has to HR there as well in order for him to stop.

Then I received court documents in the post. He was claiming his deposit back plus court costs.

My questions:

I did not register his deposit in any scheme as I erreneously thought that as his contracted orignally started before the scheme I would not need to do so. Is htere anything I can do?

The tenant has only asked for his deposit back and not 3 times. Does that mean the judge will only consider that?

As he has only asked for that amount and not seeking possession of the room again will the judge overlook that as well?

I have also put in a counter claim for the stress and damage casued to me.

His claim of 360 pounds cost 45 pounds and my costs of 1487 pounds costs 75 pounds to defend.

Does the fact that the property had a visit from the council in 2008 but no follow up visit, have any bearing on the case?

The loft room is not used as accomadation but occassionly the toilet is used - will this have any bearing?

Can some one give me any advice on what the judge may do given the situation?


I am currently in america and the documents came 2 days before I left - rushed my defence back with as much evidence I had but I wanted to included a transcript of the texts that the police saw. I ran out of time but want to get hem back to the judge ASAP.

As I am out of the country and as there is a back log of cases the judge has "stayed" the case until January 2010.

My phone has a a list of all texts as well. Please advise on wether i will be able to get the evidence to him/her after the cut off time which will end in 3 weeks and I am still out of the country.

Thank you all for your advice in advance.

jta
21-10-2009, 08:28 AM
Whatever the rights and wrongs of the case, you would find it a lot less stressful simply to cave in to his claim, especially since he has not asked for the 3x penalty. Someone is almost certain to advise him to go for that as well before the case comes up. Judges are well aware of the law now so you might find the judge would implement it anyway- no matter what the claimant has actually asked for. Pay the man and move on with your life.

Shumna
22-10-2009, 08:09 AM
Whatever the rights and wrongs of the case, you would find it a lot less stressful simply to cave in to his claim, especially since he has not asked for the 3x penalty. Someone is almost certain to advise him to go for that as well before the case comes up. Judges are well aware of the law now so you might find the judge would implement it anyway- no matter what the claimant has actually asked for. Pay the man and move on with your life.

Hi JTA and others

Thanks for your comments.

TBH with you I would like to take this the whole hog if possible. I actually went out of my way to accomadate the tenants financial situation.

I am not full conversant with the law and how court proceedings work.

You see the tenant threatened to ask for 3 x deposit but put a claim in just for the deposit so is aware of the rules.

I have read here that:

There has been instances of where a judge has ruled that as the original contract was before the April 2007 date for TDS then the deposit does not have to be registered.

Also that if a LL registers the TDS before the court hearing this may counter any claim for 3 times deposit.

What I need information on is whether the judge can rule on issues that the tenant has not claimed for.

I'm guessing that as the court costs increase depending on the sum the T kept his claim to a minimum.

My loss so far is:

one months rent, 18 days rent from last year, a replacement vinyl and 250 pounds for addiitonal labour and my own time to fit a carpet.

On top of that he is asking me to pay the deposit back. This is quite insulting.

He actually sent me a txt that he got all his information from FACEBOOK (I never use it) so yes he is getting advice.

Thanks in advance

westminster
22-10-2009, 13:05 PM
I have read here that:

There has been instances of where a judge has ruled that as the original contract was before the April 2007 date for TDS then the deposit does not have to be registered.
This doesn't apply to you. You issued a new TA in May 2007, after the introduction of deposit protection.


Also that if a LL registers the TDS before the court hearing this may counter any claim for 3 times deposit.
You couldn't use TDS (i.e The Dispute Service) as they require clauses to be inserted into the TA for the protection to be in place. You could probably use the custodial scheme, the DPS (The Deposit Protection Service (http://www.depositprotection.com/default.aspx?bhjs=1&fla=0)). You would also need to send the prescribed information to the T (with proof of postage - free certificate of postage is best as it doesn't require a signature).


What I need information on is whether the judge can rule on issues that the tenant has not claimed for.
No. Because the defendant must be given the opportunity to present a defence to any claim prior to the hearing.

Shumna
22-10-2009, 17:41 PM
You couldn't use TDS (i.e The Dispute Service) as they require clauses to be inserted into the TA for the protection to be in place. You could probably use the custodial scheme, the DPS (The Deposit Protection Service (http://www.depositprotection.com/default.aspx?bhjs=1&fla=0)). You would also need to send the prescribed information to the T (with proof of postage - free certificate of postage is best as it doesn't require a signature).


No. Because the defendant must be given the opportunity to present a defence to any claim prior to the hearing.

Westminster, this looks very encouraging for me.

So by your comment you would say that the judge can not automatically now order I pay 3 times the deposit as I haven't had the opportunity to prepare a defence.

If after having the deposit registered with the DPS, I need to send confirmation to the T. If he receives on the day of the hearing will that be acceptable?

At the hearing if he decides to withdraw his claim but I want to cpursue with my counter claim, can that be done?

If the judge accepts the fact that the money is now protected can he or she then continue rule onto my counterclaim?

In the T's notes he did make reference to the locks being changed and no hot water (A letter from the council sent to me and the T) in 2008 but did not put this in his claim. The fact that he has made reference to it, does that give the judge an opportunity to rule on these issues.
Is there any other avice you think that would be relevant to this case.

I really do appreciate your input.

westminster
22-10-2009, 19:45 PM
Westminster, this looks very encouraging for me.

So by your comment you would say that the judge can not automatically now order I pay 3 times the deposit as I haven't had the opportunity to prepare a defence.
The 3x deposit penalty is not "automatic" - T must claim for it, LL must have the opportunity to defend the claim. Only then, having considered the evidence on both sides, would the judge apply the penalty.


If after having the deposit registered with the DPS, I need to send confirmation to the T. If he receives on the day of the hearing will that be acceptable?Technically yes, but it would be much better to do this sooner (not least because it would be best to submit proof of the protection to the court before the hearing). I think you can download the prescribed information form on the DPS website. So do this (after you've protected the deposit), fill it in, then send to a friend in the UK, ask them to post on your behalf, and tell them it's essential to get a certificate of posting.


At the hearing if he decides to withdraw his claim but I want to pursue with my counter claim, can that be done?Yes, but protecting the deposit would not necessarily mean T would withdraw his claim - there is still a dispute about the deposit which can only be decided by a judge (or by the deposit scheme's adjudication). I think it's unlikely T would withdraw his claim just because there was now the alternative to use the deposit scheme's adjudication instead.


If the judge accepts the fact that the money is now protected can he or she then continue rule onto my counterclaim?
T is not claiming for failing to comply with deposit protection, he is claiming for the return of the deposit. It would not matter that the deposit was protected; there is still a dispute. If the T won his claim, the judge could then order that the deposit is returned to the T from the DPS.

The point of protecting the deposit is not to defeat this claim, but firstly to show that you are a law-abiding person who made a genuine mistake and did your best to rectify it (this is important in terms of how you appear in the eyes of the judge), and secondly to reduce the likelihood that T may decide to change his claim to claiming for the 3x deposit as well.


In the T's notes he did make reference to the locks being changed and no hot water (A letter from the council sent to me and the T) in 2008 but did not put this in his claim. The fact that he has made reference to it, does that give the judge an opportunity to rule on these issues.
Is there any other avice you think that would be relevant to this case.

The claim is limited to what is stated in the particulars of claim - for example "I claim for my deposit of £260, and also £100 compensation for not having hot water for one week during my tenancy". If it does not say anything about £100 compensation for not having hot water, then the judge will not rule on this issue.

Other advice: if you're going to be late sending anything to the court, always always phone and write keeping the court informed. Keep copies of all the correspondence, and proof of postage, as courts often lose things.

When you submit your documents to the court, have them spiral bound, number the pages and provide an index at the front (e.g. page 1 - letter to T dated Xth X, page 2 - letter to Council dated Xth X, etc) so that you can easily refer the judge to such-and-such document on page 8.

Present your case clearly and as concisely as possible, make sure you get the important points across. Don't use emotional language, don't accuse the other party of lying - say instead something like "Mr Jones is mistaken regarding this issue as you will see from my letter to him dated X on page 8 where I said blah blah".

Be respectful to the judge, address him/her as "Sir" or "Madam". Never interrupt the judge, make a note of what you want to say then wait your turn to speak.

Shumna
23-10-2009, 17:57 PM
The 3x deposit penalty is not "automatic" - T must claim for it, LL must have the opportunity to defend the claim. Only then, having considered the evidence on both sides, would the judge apply the penalty.

Ok thanks for this. I shall start doing this. I believe we have been sent letters this week to give us three weeks to submit evidence. Can T change his claim during and after this period?



Yes, but protecting the deposit would not necessarily mean T would withdraw his claim - there is still a dispute about the withdraw his claim just because there was now the alternative to use the deposit scheme's adjudication instead.

My only concern here is that I have read that adjuication boards for the schemes are possibly biased towards T's and it maybe in his interest to swap it to that then go through court.



The point of protecting the deposit is not to defeat this claim, but firstly to show that you are a law-abiding person who made a genuine mistake and did your best to rectify it (this is important in terms of how you appear in the eyes of the judge),

Ok again really good advice.


and secondly to reduce the likelihood that T may decide to change his claim to claiming for the 3x deposit as well.

At what stage will he NOT be able to change his claim?

Also Westminster can you comment on my counter claim and tell me what a judge may say on that part of the case.

I am particulalrly interested in the 400 plus txts in 5 weeks. My phone has stored all of them but I have also typed a transcript of them all!

Also what do you think the judge will say on the agreement the cient signed to do wrk but did not complete it and thus I had to pay extra labour to get the job done.

You have been very informative so far.

Snorkerz
23-10-2009, 19:57 PM
I am not full conversant with the law

Anyone entering a business is surely morally bound to know what his obligations are? Remember, in the law, ignorance is no excuse and, whilst not wishing to critisize unduly, I wonder how many other 'laws; you might have broken. For example, your property seems to be a HMO - does your local council need it licensing? Are all your gas appliances certified? Annual electrical checks?


Also that if a LL registers the TDS before the court hearing this may counter any claim for 3 times deposit.

I'm not sure you could protect it now - it is a 'tenancy' deposit and as your tenant has left, I don't think there is a tenancy. I'm sure others will comment


On top of that he is asking me to pay the deposit back. This is quite insulting.

Do you have proof of the money you spent? Do you have a way of proving it was for his benefit only?

You shouldn't find his actions insulting - after all it is you who have not respected his rights by failing to protect the deposit. All he is doing is asking for what the law entitles him to - well not even all of that at the moment!

westminster
23-10-2009, 20:20 PM
Ok thanks for this. I shall start doing this. I believe we have been sent letters this week to give us three weeks to submit evidence. Can T change his claim during and after this period?
I'm sorry I don't know how T would/could amend his claim, but you would be informed about it and have the opportunity to submit your evidence if this happened.


My only concern here is that I have read that adjuication boards for the schemes are possibly biased towards T's and it maybe in his interest to swap it to that then go through court.

Maybe, but it wouldn't stop your counter-claim. And it's not a big worry if T discontinues his claim and goes to adjudication - the consequences are limited to the £260 deposit.


At what stage will he NOT be able to change his claim?
He could discontinue the claim at any time before the hearing, then issue a new claim.


Also Westminster can you comment on my counter claim and tell me what a judge may say on that part of the case.

I am particulalrly interested in the 400 plus txts in 5 weeks. My phone has stored all of them but I have also typed a transcript of them all!

Also what do you think the judge will say on the agreement the cient signed to do wrk but did not complete it and thus I had to pay extra labour to get the job done.
I can't predict what the judge will say, especially on such limited information, and there are two sides to every story. TBH I found your description of events quite confusing - for example, I've no idea why you consider the occasional use of the toilet in the loft room to be relevant? You need to state things clearly in terms of cause and effect, and stick to the relevant facts.

The main issues are: T is claiming £X and you are claiming £X, and you need to show why T is liable for £X, and evidence to support it. Remember, the judge doesn't know you or the tenant - he can only decide on the evidence presented to him, so if you allege that the tenant damaged the vinyl in the hall, you should provide evidence of this. Ideally, before/after inventory reports by an independent inventory clerk - otherwise, you might struggle to prove it if the tenant claims the vinyl was like that when he moved in.

The 400 texts are also relevant, because it is "unreasonable" behaviour, and the judge will take into consideration the reasonableness of both parties' behaviour when making his judgment. So definitely include this in the evidence you submit.

Another thing to bear in mind is that, in the small claims track, the judge decides on a balance of probabilities - i.e. he'll rule in favour of the party who is a bit more likely to be telling the truth, based on the probably imperfect evidence presented. So if you don't have 100% proof of your claim, it's not the end of the world. If the judge thinks you're a believable witness - more believable than the tenant - then he's more likely to rule in your favour. This is partly why the reasonableness of the party's past behaviour is relevant - a judge may well decide that someone who has sent 400 threatening text messages to you is not a completely trustworthy person.

Shumna
24-10-2009, 07:21 AM
TBH I found your description of events quite confusing - for example, I've no idea why you consider the occasional use of the toilet in the loft room to be relevant? You need to state things clearly in terms of cause and effect, and stick to the relevant facts.

Sorry Westminster I should have mad myself clearer. If there is a third toilet upstairs in the loft and this is being used by tenants does that classify the property as a 3 story accommadation and therefore needs to be licensed?The council came last year and accepted my explanation so I'm guessing they did not need it to be licensed. Otherwise they would have comeback to me.


you might struggle to prove it if the tenant claims the vinyl was like that when he moved in.

When T signed agreement to do some work to pay off the rent psrt of the work list was to fit a new vinyl. I have a receipt of the purchase and photos of the damage and a receipt for the newest replacement vinyl and photos of that as well.


The 400 texts are also relevant, because it is "unreasonable" behaviour, and the judge will take into consideration the reasonableness of both parties' behaviour when making his judgment. So definitely include this in the evidence you submit.

He registered his mobile number with the courts so they have proof themselves of number where the texts have come from.


Another thing to bear in mind is that, in the small claims track, the judge decides on a balance of probabilities - i.e. he'll rule in favour of the party who is a bit more likely to be telling the truth, based on the probably imperfect evidence presented. So if you don't have 100% proof of your claim, it's not the end of the world. If the judge thinks you're a believable witness - more believable than the tenant - then he's more likely to rule in your favour. This is partly why the reasonableness of the party's past behaviour is relevant - a judge may well decide that someone who has sent 400 threatening text messages to you is not a completely trustworthy person.

Thanks Westminster yet again great advixe. This is why I am pursuing this case as I feel it more than probable that my version the events are more likely than his.

Much appreciated.

Shumna
24-10-2009, 08:00 AM
I wonder how many other 'laws; you might have broken. For example, your property seems to be a HMO - does your local council need it licensing? Are all your gas appliances certified? Annual electrical checks?

I think you raise some good points but have also made few assumptions (due to the lack of info I have given). The council visited the property last year and told me what issues I needed to remedy. Since that time the council have not comeback.

The house is registered as a 2 storey HMO with the loft room having a question over it. The council accepted that the loft room was used for storage and not accommadation. There is a toilet up there and that's where the boiler is kept aswell so I or the tenants need to go there from time to time.

The council were satisfied with my annual certificates and said nothing about licensing.



I'm not sure you could protect it now - it is a 'tenancy' deposit and as your tenant has left, I don't think there is a tenancy. I'm sure others will comment

This forum has been quite useful with this specific subject and I feel what you are saying may not be an absolute as judges have interpreted the "law" differently. Obviously I am new to this but trying to fulfil my moral duty and learn the law quickly.



Do you have proof of the money you spent? Do you have a way of proving it was for his benefit only?

I have texts from the tenant saying he will withold rent as he is not happy with the house including the floors. I have an agreement he signed confirming he was not happy with the flooring and that he agreed to replace it. He then damaged the new vinyl by cutting it wrongly. I have a receipt for both vinyls and photos of both. I also have an invoice from the tradesmen for the new work that needed to be done. However on this matter of the vynil that is all I have. Do you think this will be enough Also no other tenant complained about the house or witheld rent. I'm wondering how the law will interpet his actions.


You shouldn't find his actions insulting - after all it is you who have not respected his rights by failing to protect the deposit. All he is doing is asking for what the law entitles him to - well not even all of that at the moment!

This is why I think the court should sort this out. As westminster said there are 2 sides to every story. Obviously if the judge feels that with the balance of probabilities he favours me you could argue that it was T who did not respect the law.

I tell you what it felt quite comfortable answering some of your questions (I guess you were being Devils advocate), as I know I have a solid set of documents evidencing my claim.

Also the fact that the police put an harrassment order on T, will hopefully truly show the judge T's characterisitcs. My point is if the police took it seriously then maybe the judge will.

Thank you, you have encouraged even further on this matter.

Shumna
15-02-2010, 04:35 AM
I know this is an old thread but I always get fed up when other people raise a question and then disappear as you don't know what ever happened to the case.

I am just writing to let you all know that the judge dismissed T's claim and ruled in my favour in my counter claim! I took this case on as a matter of principle and feel fully vindicated. It would have been very easy to have caved in and let it go but now I have a point of reference in case anything like this happens again.

I would like to especially thank Westminster for his contributions to this case and I am providing a summary of the key points that the Judge made:

"I have these two documents from the claimant and this REALLY USEFEUL pack from the defendant" (Said at the beginning).

"You said you did pay the rent and now you say you didn't - which one is it?" (Judge asking T - OUCH!)

" You are doing yourself no favours I deem this as harassment (referring to texts)"

"If the defendant had not limited the claim then I would have ruled a greater amount" (In his summary)

"I found the claimants account contradictory and as such on THE BALANCE OF PROBABILITIES find the witness unreliable" (In his summary)

So my observations are as follows:

1) Make sure you have documents to prove your case and present them in a clear and concise manner.
2) Make a note of all texts relevant to the case - The judge told me afterwards that transcript of texts are used all the time in court
3) Address the Judge as "Sir" or "Madam" and appear as professional as possible. Impressions do count.
4) The T thought he was automatically entitled to the 3x deposit ( FYI I registered it with DPS in December) however this was not discussed as the tenant had not claimed for the 3x deposit (Thanks Westminster). The DPS will now pay me the deposit as directed by the court order (at the end I asked the judge if he could put that wording in the Court Order and he said that would be fine).

The T now has 28 days to pay me the money he owes me or a CCJ will be placed against him! He indicated that he may appeal the decision but he was caught out lying so I think a transcript of the case in any appeal court would be very useful.

Once again thank you all for your help.

jeffrey
15-02-2010, 09:05 AM
Well done you!

Shumna
15-02-2010, 09:44 AM
Thank you.

T was not very happy and did not seem to enjoy the experience as much as I did. He didn't even speak to me when the court had finished!

If T does not pay in the 28 days do you or anyone else know what the next step will be.

I was hoping to get something paid directly from his income but was not sure how to go about doing that and how many levels I need to cross to get to that stage.

Regards

TIA

tom999
15-02-2010, 10:02 AM
If T does not pay in the 28 days do you or anyone else know what the next step will be.

I was hoping to get something paid directly from his income but was not sure how to go about doing that and how many levels I need to cross to get to that stage.Once a claim (http://www.hmcourts-service.gov.uk/infoabout/claims/index.htm) has been made against the defendant, and he/she does not reply within 28 days, you will need to apply for a judgement by default.

Then you will need to enforce the judgement (http://www.hmcourts-service.gov.uk/infoabout/enforcement/index.htm). If the defendant is employed (and not self employed, in the army, navy or air force, or a merchant seaman), you may apply for an attachment of earnings (http://www.hmcourts-service.gov.uk/infoabout/enforcement/ae/index.htm).

Shumna
15-02-2010, 11:26 AM
Very Interesting reading.

Having looked at the links I think that a an "attachment of earnings" is better than a "Warrant of Execution" as I know where he works as well as where he lives. Also it seems to be more threatening (Possibly employers finding out & Getting arrested by a baliff if he doesn't return a statement).

In practical terms would you know which of these two options will be the speedier option to get the money he owes?

westminster
15-02-2010, 11:32 AM
I know this is an old thread but I always get fed up when other people raise a question and then disappear as you don't know what ever happened to the case.

I am just writing to let you all know that the judge dismissed T's claim and ruled in my favour in my counter claim! I took this case on as a matter of principle and feel fully vindicated. It would have been very easy to have caved in and let it go but now I have a point of reference in case anything like this happens again.

I would like to especially thank Westminster for his contributions to this case and I am providing a summary of the key points that the Judge made:
Excellent news and I am very glad my contributions were of help to you. I am particularly pleased that the judge noted the presentation of your documents (spiral-bound and indexed?) - it really does make a difference! Also helpful to know that texts are frequently used as evidence (BTW, did you get the 400 texts transcript 'verified' in some way or have to show the judge your phone to prove they were sent to you?)

In the event the tenant decides to appeal and/or amend his claim to include the 3x deposit penalty, note that this week there was the first ever binding High Court decision on late protection with the DPS. Basically, you're safe. See
http://blog.painsmith.co.uk/2010/02/12/high-court-decision-on-tdp/

p.s. I am female!

westminster
15-02-2010, 11:38 AM
Very Interesting reading.

Having looked at the links I think that a an "attachment of earnings" is better than a "Warrant of Execution" as I know where he works as well as where he lives. Also it seems to be more threatening (Possibly employers finding out & Getting arrested by a baliff if he doesn't return a statement).

In practical terms would you know which of these two options will be the speedier option to get the money he owes?
I don't know about speedier, but sending bailiffs to confiscate goods is usually a waste of time. I'd go for an attachment of earnings.

Also have a glance through this section (http://www.hmcourts-service.gov.uk/infoabout/enforcement/information/index.htm) about an Order to Obtain Information. It's not an enforcement method but can be useful if, say, the debtor claims they cannot afford to pay more than £1.50 a week and you know this isn't true.

tom999
15-02-2010, 11:48 AM
Having looked at the links I think that a an "attachment of earnings" is better than a "Warrant of Execution" as I know where he works as well as where he lives. Also it seems to be more threatening (Possibly employers finding out & Getting arrested by a baliff if he doesn't return a statement).

In practical terms would you know which of these two options will be the speedier option to get the money he owes?Personally speaking, if I knew that the defendant was employed, I would go for an attachment of earnings (http://www.hmcourts-service.gov.uk/infoabout/enforcement/ae/employed.htm). Part of this process is to apply for an Order to obtain information (http://www.hmcourts-service.gov.uk/infoabout/enforcement/information/index.htm); if the defendant does not answer questions, then they may be arrested and imprisoned (How do I apply for an order?, pages 6, 7 (http://www.hmcourts-service.gov.uk/courtfinder/forms/ex324_0309.pdf)).

ftgpmb
15-02-2010, 21:06 PM
Shumna. Congratulations on winning. I have learned a few things from your case (including that Westminster is a she amongst other things! - glad you made that mistake rather than me). My case is similar but hasn't come to court yet, so I am interested in the judges ruling.

You were owed more than the value of the deposit in the scheme?
So the judge ordered the TDS to pay you the deposit and ordered the T to pay you the balance?
Have you got the money from the TDS yet, i.e. was the court order sufficient?

One for the rest of you - surely Shumna is still vulnerable to a second claim from T for 3x deposit because he (or she) didn't protect the deposit till after the tenancy had finished and only after court proceedings had started? Other county court judgements (e.g. Woods v Harrington) have gone against LL in these circumstances and I'm not sure recent High Court judgement fully protects Shumna (i.e. this is not a question of 14 days, this is a question of protection during the tenancy)? opinions?

Shumna
15-02-2010, 22:18 PM
p.s. I am female!

Ouch, sorreeee!

Shumna
15-02-2010, 22:26 PM
Excellent news and I am very glad my contributions were of help to you. I am particularly pleased that the judge noted the presentation of your documents (spiral-bound and indexed?) - it really does make a difference!

Yes exactly. I also put a covering letter in with my documents which summarised my claim, the idea was to give the judge a head start in the case.

Also helpful to know that texts are frequently used as evidence (BTW, did you get the 400 texts transcript 'verified' in some way or have to show the judge your phone to prove they were sent to you?)
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The Judge read some of the more vulgar and threatening texts out loud from the transcript. T did not challenge or deny any of the texts that were read out loud possibly because he was caught out lying earlier. I brought my mobile phone with me in case the judge wanted verification. The judge took everything on face value.

Shumna
15-02-2010, 22:28 PM
Personally speaking, if I knew that the defendant was employed, I would go for an attachment of earnings (http://www.hmcourts-service.gov.uk/infoabout/enforcement/ae/employed.htm). Part of this process is to apply for an Order to obtain information (http://www.hmcourts-service.gov.uk/infoabout/enforcement/information/index.htm); if the defendant does not answer questions, then they may be arrested and imprisoned (How do I apply for an order?, pages 6, 7 (http://www.hmcourts-service.gov.uk/courtfinder/forms/ex324_0309.pdf)).

Yeah I was thinking that that (whilst reading through the links you gave), It would scare T into being sensible and pay what is due.

Shumna
15-02-2010, 22:49 PM
Have you got the money from the TDS yet, i.e. was the court order sufficient?

The Money is registered with DPS. I phoned them up last week after the case. They said that they need written confirmation (from either party) that the case is being dealt with through the courts and upon receipt of this they would suspend the account.

They now need to see the court order (Scanned, faxed or posted) instructing them to pay the deposit back to me. The wording in the email they sent me is as follows:

The Deposit Protection Service (The DPS)


Thank you for your email.


Thank you for your recent email advising us of legal action being taken against the Tenant.

As a result the DPS has now suspended the account, pending either consent of both parties to reinstate, or the receipt of a relevant Court Order. Please note that the DPS need not be kept up to date as to the progress of any legal proceedings initiated by the parties, and nor should the DPS be named as a party to the case.

All that we require at the conclusion of any proceedings is for either party to supply the DPS with a copy of the Court Order which must direct the DPS or Scheme Administrator to release the deposit to one or more of the parties.

Should you require any further assistance please do not hesitate to contact this office.

As mentioned previously the judge agreed to write this in the court order so I am now awaiting for this to come through to forward onto DPS.


One for the rest of you - surely Shumna is still vulnerable to a second claim from T for 3x deposit because he (or she) didn't protect the deposit till after the tenancy had finished and only after court proceedings had started? Other county court judgements (e.g. Woods v Harrington) have gone against LL in these circumstances and I'm not sure recent High Court judgement fully protects Shumna (i.e. this is not a question of 14 days, this is a question of protection during the tenancy)? opinions?

I was particularly pleased to find out about the High Court decision on 12th Feb but can also see the point your making. However why would the DPS let me register the deposit when it asked me online the start date of the tenancy, surely that shouldn't be allowed if its illegal to protect the deposit after the expiration of the tenancy or even if it was greater than 14 days (The registration was before the high court ruling).

I am also wondering that once the DPS pays the money back to me, will that have any implications on T's appeal (if he chooses to exercise this option)?

westminster
15-02-2010, 23:35 PM
One for the rest of you - surely Shumna is still vulnerable to a second claim from T for 3x deposit because he (or she) didn't protect the deposit till after the tenancy had finished and only after court proceedings had started? Other county court judgements (e.g. Woods v Harrington) have gone against LL in these circumstances and I'm not sure recent High Court judgement fully protects Shumna (i.e. this is not a question of 14 days, this is a question of protection during the tenancy)? opinions?
The High Court judgment of Draycott v Hannells was about compliance with the DPS's "initial requirements" (read the transcript of the judgment). As far as I know, the DPS's initial requirements are extremely unrestrictive and allow submission of a deposit under pretty much any circumstances (unlike, say, the TDS). If they allowed a deposit to be physically submitted, it's very likely it complied with their T&C. So, I do think Shumna is pretty safe on this score.

westminster
15-02-2010, 23:37 PM
Ouch, sorreeee!
Not offended or anything, I just occasionally point it out. We all make such assumptions online and we're probably wrong about 50% of the time.

westminster
15-02-2010, 23:46 PM
I am also wondering that once the DPS pays the money back to me, will that have any implications on T's appeal (if he chooses to exercise this option)?
No, I don't think so. The DPS would be acting on the order of the county court judge, that's all. It doesn't affect either party's ultimate liability in terms of court rulings. Such rulings can be overturned/reversed in a higher court, but I really think this is very unlikely to happen, especially in light of the recent High Court judgment.

westminster
15-02-2010, 23:56 PM
Yeah I was thinking that that (whilst reading through the links you gave), It would scare T into being sensible and pay what is due.
It is indeed a scary order, so although it's not an actual enforcement method, it's effective in terms of a reality check and making the debtor take things seriously. Note that the order must be served in person, so you'd need to hire a process server to do this (yes, you could DIY, but it's not advisable if you're not experienced).