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View Full Version : Small claim for arrears: now Disposal Hearing



Ericthelobster
09-02-2008, 12:23 PM
First time I've been down this road so would appreciate advice...

I submitted a Small Claim for rent arrears against my tenant - it was an 'open' claim in that the tenant is still in situ and the amount owing is increasing daily (S21 reposession still in progress). Arrears currently stand at about 2K. Tenant didn't respond to the court, so we've now been given that date of the Disposal Hearing in April, and that I should attend (by which time the claim will be up by another £800 :( ).

I'm advised that I now need to "...file and serve a statement confined to the issue of damages together with copies of all documents relied on...". What's all that about? I've already provided a copy of the AST and a rent statement with the original papers; do I simply need send in an updated rent statement? Is there value in including copies of reminder letters and a couple of grovelling texts from the tenant promising to pay in full (which never happened?)

Do I have to anticipate whatever defence the tenant might come up with, or has he lost his chance for that by not filing a response to the original claim? (There is no 'real' defence at all; my only concern is that he might invent something like claiming he paid me in cash, or that he withheld rent due to some imaginary issue with the property).

Am I supposed to state over what period I expect to be paid back? Or is that dealt with during the hearing? And will there definitely BE a hearing, even if the tenant doesn't defend it in any way?

Advide much appreciated.

Surrey
10-02-2008, 20:15 PM
I understand that the defendant is expected to reply within a stated time, and if they don't the court "MAY" (note that this is not "MUST") ignore any response they make after the time stated. (You may need to remind the court of this obligation but you'll have to look up exactly what part, section and number it is.)

Your statement is the key document, and you should take the time to read through the CPR to ensure you prepare it in exactly the right way (even down to having the margins no less than 3.5cm wide!)

Your statement should include what you would say in front of a court and should state: who you are in relation to the case; what the case is for; how the case arose (got into tenancy agreement with X at a rent of Y per month and include a copy of tenancy agreement and refer to it - see CPR about how to do this); what else you have done as a result of the tenant not fulfilling his obligations, such as the Section 21 and what's happening with that case; what communication you have had with the tenant in order to resolve the case before going to court and include copies of communication you have had with the non-paying tenant.

Don't forget to get the statement of truth correct on the end.

Don't include anything that is not relevant to the case, for example if you didn't ask the tenant for rent for several months because your mother was ill you don't need to mention your mother's health as that would be irrelevant to the case.

The statement and your bundle of papers is the crucial thing, so you might want to consult someone with some legal training to check that you've done it correctly.

Best of luck.

Ericthelobster
11-02-2008, 06:52 AM
Thanks very much for that.

Bummer - what a pain. I'm familiar with the whole witness statement thing, having prepared one for a successful S8 reposession last year... bit puzzled though as I thought the whole point of the small claims court was that it was supposed to be relatively informal and accessible to Joe Public?

jeffrey
11-02-2008, 08:40 AM
Thanks very much for that.

Bummer - what a pain. I'm familiar with the whole witness statement thing, having prepared one for a successful S8 reposession last year... bit puzzled though as I thought the whole point of the small claims court was that it was supposed to be relatively informal and accessible to Joe Public?
It is- but nevertheless it's litigation and so is governed by usual Court rules of procedure and evidence.

Ericthelobster
20-02-2008, 17:42 PM
Your statement should include what you would say in front of a court and should state: who you are in relation to the case; what the case is for; how the case arose (got into tenancy agreement with X at a rent of Y per month and include a copy of tenancy agreement and refer to it - see CPR about how to do this); what else you have done as a result of the tenant not fulfilling his obligations, such as the Section 21 and what's happening with that case; what communication you have had with the tenant in order to resolve the case before going to court and include copies of communication you have had with the non-paying tenant.

Many thanks again for the above advice... I've just submitted my witness statement and am pretty confident it'll be OK.

However, looking again at the 'Notice of Disposal Hearing' which I was sent I still have quite a few queries. All seems a bit odd to me as the tenant has not contested the claim so presumably doesn't dispute what he owes. Has all this come about because the debt is still increasing (I don't have possession yet)?

Anyway - just been having a play with the OCR program on my scanner, and have scanned in the text below!:


District Judge xxxxxxxx considered the papers in the case and ordered that:

1) The Defendant shall pay the Claimants an amount to be decided by the Court and costs

2) The following directions shall apply to the assessment of the damages to be paid.

3) The Claim shall be listed for a disposal hearing at which the judge will consider the papers and hear submissions from the parties. The following directions shall apply in respect of that hearing.

4) The Claimants shall file and serve a statement confined to the issue of damages~ together with copies of all documents relied on by 4pm on Thursday, xxxxxxx, 2008.

5) If the Claimants are to be cross-examined, the Defendant shall file an application for an Order pursuant to Rule 32.7 by 4pm on Thursday, xxxxxxx 2008. At that hearing of the application the Court will consider whether the claim should be allocated to a track and further directions given.

6) A party believing that the amount payable is genuinely disputed on grounds which appear substantial shall file an application for the claim to be allocated to a track and for further directions by 4pm on Thursday, xxxxxxxx 2008.

7) The Claimants shall endeavour to agree a bundle of relevant documents with the Defendant, and shall in any event file and serve an indexed and paginated bundle at least three clear working days before the hearing.

8) The disposal hearing shall be listed on the first available date after Monday, xxxxxxxxxxx 2008 with a time estimate of thirty minutes. If a notice giving details of the time and place of the hearing is not enclosed with this Order, one will be sent to you shortly.

9) Because this Order has been made by the Court without considering representations from the parties, the parties have the right to apply to have the order set aside, varied or stayed. A party wishing to make an application must send or deliver the application to the court (together with any appropriate fee) to arrive within seven days of service of this Order.

So... I've just fulfilled Clause 4 by submitting my Witness Statement. But what's that all about in Clause 5 "If the Claimants are to be cross-examined..." - how do I know? will I be? And then "...the claim should be allocated to a track..." Huh?

And then in Clause 7, I'm supposed to agree a bundle of documents with the tenant - does this relate to those in the Witness Statement I've submitted? Am I expected meet with the tenant and thrash out a new, joint Witness Statement or something? (some hope as the guy has been avoiding me for months). Also, Clause 7 says I must file an indexed and paginated bundle at least 3 days before the hearing... how does this differ from the bundle I've just submitted?

(Incidentally I fully expect the tenant to maintain his current head-in-the-sand stance throughout, and may or may not eventually pitch up at the actual hearing.)

Thanks for any feedback...

Surrey
21-02-2008, 22:20 PM
Why get papers from defendant as well as claimant? It is possible that you, as claimant, have decided to leave out some of the communication you had with the tenant during his stay that he thinks would do his case some good, or that he has some other bits of paper that he thinks the judge could find useful. (Yeah, I know, head-in-the-sand tenants don't generally have any of that, but the judge doesn't know, and you have to be seen to be giving him the chance.)

You should write to the tenant in reasonable time regarding the order, requesting them to let you have any document, over and above what you have already provided in and with your statement, that he might want to be included in the bundle. Ask him to provide docs with about three days to go.

If tenant sends you documents, add them. if he doesn't, then write another letter letting him know that you will be submitting your bundle in the required time, and that if he wants any docs included in the bundle he needs to let you have them by the day before the bundle is required. (Chances are he won't, so your bundle will be the only one.)

You don't need to include your letter to the tenant asking for additional documents but do bring it with you, so that if the judge asks why it's just got your statement in you can show him the letter you wrote and say that the tenant didn't respond.

Then off you go, deliver your bundle in the required time, and you've done your bit.

You will be gob-smacked at just how ridiculously rigid the procedural side of court is, so words of advice for you:

Read the CPR, check for relevant sections. (Great bed-time reading, by the way - any hint of insomnia, try to get through even one section of the CPR and you'll be in the land of nod before you've turned the second page.)

Check dates on your material.

Check that you have fulfilled every letter of the requirements of the court order, in the required time.

Ensure your bundle has page numbers.

Create a table of contents (with a brief one-line summary of the thing you've included in the bundle) so the judge can skim-read.

Get to know your bundle.

Make sure you adhere to dates that you have to adhere to. If you need to give the bundle to the defendant by a certain date, make sure you do it. (Note the dates for service Part.)

Check your dates for when you have to do other things.

Do everything by the required date.

Check the dates the other side is required to do things by, and whether they have done them by that date.

Read the CPR.

Ok, so now I'm getting repetitive, but just as everyone goes on about dates on S21 notices, court proceedings require that you adhere to an enormous set of rules, so you do need to do your best to adhere to them.

Oh, and best of luck!

Ericthelobster
22-02-2008, 06:56 AM
You should write to the tenant in reasonable time regarding the order, requesting them to let you have any document, over and above what you have already provided in and with your statement, that he might want to be included in the bundle. Ask him to provide docs with about three days to go.Thanks a lot for all that. That all makes sense - I was visualising sitting down with the tenant negotiating which documents would and wouldn't be included, which would be a bit bizarre...!

However I've already submitted a bundle as per clause 4 of the Court notice (deadline was 2 months before the hearing)- ie a witness statement with exhibits (AST agreement, correspondence, possession order) - but clause 7 says I need to submit a (second?) bundle no more than 3 days before the hearing... what's that about? just containing any new evidence since the first one was submitted?

Actually it's possible I may not need to proceed as the tenant spoke to me last night (first time in months) and said his father had just found out what had been going on, gave him a right old rollocking and said he'd lend him the money to pay me in full. Not holding my breath, but that would be a real result! :)

Surrey
22-02-2008, 20:41 PM
Will you be getting your place back as well as the money you are owed, AND the court fees that you've already had to shell out?

While it sounds really good, please don't get your hopes up. UNTIL you get the money and the place back, continue at exactly the same pace as you would have done if you hadn't spoken to the tenant. Many times I have heard of people backing off because of assurances from "the other side", only to find that the promises were hollow. If you carry on, and the tenant sees that you are carrying on, he will know you mean business and that in order to avoid having to go to court he will HAVE to deliver what he's promised.

As for submitting the bundle, then yes you do have to submit a whole new bundle, in which you should include your witness statement and attachments, PLUS anything the tenant says he wants to include, as I said before.

Ericthelobster
22-02-2008, 22:02 PM
Will you be getting your place back as well as the money you are owed, AND the court fees that you've already had to shell out?

While it sounds really good, please don't get your hopes up.Oh, the only thing I've agreed to is to postpone instructing the bailiff by 7 days. I've had plenty of hollow promises from this guy, but this does sound kosher enough to make me think it's worth risking 7 days delay (and avoiding him having to pay the bailiff fee), which is all I'm doing. The tenant has enough experience of me to know that I'll definitely follow through, as well.

If and when I get the dosh next week (which yes, will have to include all arrears, interest and admin fees I've charged, plus all court fees charged to date), only then will I consider my options. My main motivation though is that if I don't give him the 7 days I'm not likely to get the money and will have to fight to get it, so I'm not exactly being totally altruistic here. And if he's evicted while still owing me money, and does a vanishing act, it will be all the harder to chase it.

Surrey
23-02-2008, 06:55 AM
Could you still instruct the bailiffs but hold off on their execution (isn't that a lovely choice of word!) until day 8? That way you would at least be able to jump on him from a great height immediately if he doesn't deliver, rather than having to wait more time. Don't know if that would be possible, but might be another stick to wave at him if you think he might not do as he's promised. Good luck.

Ericthelobster
23-02-2008, 07:39 AM
Could you still instruct the bailiffs but hold off on their execution (isn't that a lovely choice of word!) until day 8?No, sorry, my poor turn of phrase. I only got my posesssion order (via completely separate S21) last week, so the next step - which I'm postponing by a week - is to apply to the court to send in the bailiff, so I'm several weeks away from actual possession.

Surrey
23-02-2008, 15:19 PM
I would speak to the bailiffs on Monday anyway, to find out what the delay usually is. They will probably be quite informative about how long it generally takes in your area for bailiffs to do what they have to, it's not always the same everywhere.

Did you also get an order for payment up to the day they leave?

Ericthelobster
27-02-2008, 13:24 PM
I would speak to the bailiffs on Monday anyway, to find out what the delay usually is. They will probably be quite informative about how long it generally takes in your area for bailiffs to do what they have to, it's not always the same everywhere.

Did you also get an order for payment up to the day they leave?

Yes, it's about a month's lead time round here. And yes, I have my order is for payment up until the day he quits (the "bailiff" day will be about 6 weeks before the court hearing, so should have a fixed and final sum to claim by that time.

And guess what - I've just had a phone call from the little g**sh*te's mother (and this is a tenant in his thirties) grovelling for clemency because there's no money going to be forthcoming from daddy at all (he wasn't even asked about it until yesterday, and apparently said 'no way').

Not unduly surprised... so I'll see him court as planned :mad:

Ericthelobster
16-04-2008, 11:57 AM
Just thought I'd follow up my original query with an update to the thread, as my hearing was this morning.

It was just me and the judge in court (my [now-ex] tenant texted me to say he was stuck in traffic - plonker, why am I not surprised?) and I got judgement for the full amount of my claim; all pretty painless.

Out of interest though - I was hoping/expecting to end up with an order for the tenant to pay me a realistic X per month which I asked about; however the judge awarded judgement for the full amount to be paid within 14 days (which I know for sure won't happen); and said that if the tenant wants to pay by installments instead he needs to apply to the court; or if he does nothing (as is likely) then I need to go down the 'Attachment of Earnings' route or whatever. Personally I would have preferred an order now to pay a monthly amount, which I stand some chance of getting from him. Is that not possible at this stage?

As ever, thanks very much for all the advice along the way which made everything go smoothly and gave a favourable outcome!

Colincbayley
16-04-2008, 12:00 PM
Personally I would have preferred an order now to pay a monthly amount, which I stand some chance of getting from him. Is that not possible at this stage?

Could you not just draft something up yourself along the lines that the tenant agrees to pay you XX amount per week/month and if he fails then the full amount becomes due??

I have not idea weather this would be valid in law!