When a letting agency ceases trading, taking with them tenants deposits which should be protected and rent due to landlords, there is often much outrage but very rarely any meaningful action with police often brushing off complaints as civil matters. Rarely are these rogue letting agents members of a Client Money Protection scheme.
A little known fact is that victims can bring private criminal prosecutions against the owners of such businesses and that limited liability status of a company does not shield them from this.
A new Chambers of Specialist Direct Access barristers based in Cheltenham intends to provide victims with an opportunity to obtain justice and, unlike conventional litigation, there is no time limit upon which criminal prosecutions can be brought.
For the last 10 years the general public have been able to employ barristers for this purpose directly but until now no barristers sets have yet specialised and marketed themselves for this line of work. Not only does this give victims access to justice, it is also a very cost effective way for them to claim compensation for their losses.
Mark Smith of Cotswold Barristers commented:
“Many are shocked at how little it costs to instruct a Direct Access Barrister like me to instigate a private criminal prosecution. If affected landlords and tenants were to form an action group, with each member contributing say £200, enough money would soon be raised to gather evidence, witness statements and have a case in front of a judge very shortly thereafter. Once the court accepts a case as fairly brought, even if no conviction results, the costs of investigation and prosecution are paid by the State, as indeed are the defence costs, and the initial payments made by the victims would be refunded.”
The charges that a rogue agent could face include:
– Fraudulent trading, where the agent is a company that trades/traded with the intention of defrauding creditors or for any fraudulent purposes. The case is brought in a personal capacity against a person in management or control of the company. This applies whether the company is trading, has ceased trading or is in the process of being wound up.
– Fraud by abuse of position, where the agent abuses/abused their position of trust regarding financial dealings for financial gain for himself
– Theft. Simply stealing money belonging to someone else. This can include ‘borrowing’ where there is no real prospect of repayment.
Everyone coming forward to support the case and show their personal losses would be able to claim compensation, but those that are not involved will not be able to benefit, simply because the court will not know who they are. It is therefore vital that anyone affected, if they want compensation in the criminal proceedings, comes forward and gets involved in a case before it gets to Court.
Carla Morris-Papps, Chief Executive at Cotswold Barristers said “we endeavour to assist groups affected to attract media coverage for this purpose. It only takes one victim to get a case started and with the right level of media attention other victims soon tend to make themselves known.”
Private prosecutions are not reliant on the financially pressurised police or other government agencies. Numerous viable prosecutions are not pursued by the State because of financial or resource limitations in these austere times.
If found guilty the offender would be punished by the Court, and compensation to their victims would only be limited by the value of assets that the offender has.
In most cases the agent cannot hide behind the lack of assets of a failed limited company; the orders are made against the offender personally. Criminal prosecutions have higher profile, are far speedier than civil cases, and are often the cheapest and most effective way to secure proper recompense from dishonest agents.