Penalty Claim -- Do I need to fill G. Other Information on N149

[CarrieYuan]

The landlord and I signed a contract in Feb 08 and I gave a proper notice to move out Sep 08. I was chasing the deposit after move-out as he was on holiday first and then claimed his money was tight. I gave another nudge in Nov 08 he finally said he would return deposit to me with 300 pound deduction. The deduction was on purchase a new bed which he claimed was to replace the old one he threw out to vacant the room as our study. This was not indicated anywhere in our communication. We entered into negotiation. The landlord insisted on the money. I then discovered I had the right to claim the deposit+penalty as he failed to put my deposit into a designated scheme. I took him to court via MoneyClaimOnline.

 

After receiving the court claim, he returned the orginal deposit in full without 3X penalty, court cost or interest in Dec 08 and employed a lawyer to defend (they only mentioned my receipt of full deposit, so would like the proceeding to be withdrawn). I decided to continue the claim. I now receive the Allocation Questionnaire N149.

 

I saw there are a detailed Draft order for Directions and wordings on how to fill Other Information in the Bank Penalty Reclaim cases. Not much was written on how to fill N149 in the deposit claim (if there is, please direct me)

 

Just wondering at this stage whether I shall mention anything in Section G Other information, like court cases in Reading, Gloucester, AST I signed, bank statment showing the deposit going out, LL's email saying he was tight on the money (and therefore implied the money wasn't with any Scheme)...

 

Much appreciated if you can give me some suggestion or ideas.

Edited April 8, 2009 by CarrieYuan

[CarrieYuan]

Has any one received Order for Directions from judges? Is it possible to share? tx

[Planner]

The landlord and I signed a contract in Feb 08 and I gave a proper notice to move out Sep 08. I was chasing the deposit after move-out as he was on holiday first and then claimed his money was tight. I gave another nudge in Nov 08 he finally said he would return deposit to me with 300 pound deduction. The deduction was on purchase a new bed which he claimed was to replace the old one he threw out to vacant the room as our study. This was not indicated anywhere in our communication. We entered into negotiation. The landlord insisted on the money. I then discovered I had the right to claim the deposit+penalty as he failed to put my deposit into a designated scheme. I took him to court via MoneyClaimOnline.

 

After receiving the court claim, he returned the orginal deposit in full without 3X penalty, court cost or interest in Dec 08 and employed a lawyer to defend (they only mentioned my receipt of full deposit, so would like the proceeding to be withdrawn). I decided to continue the claim. I now receive the Allocation Questionnaire N149.

 

I saw there are a detailed Draft order for Directions and wordings on how to fill Other Information in the Bank Penalty Reclaim cases. Not much was written on how to fill N149 in the deposit claim (if there is, please direct me)

 

Just wondering at this stage whether I shall mention anything in Section G Other information, like court cases in Reading, Gloucester, AST I signed, bank statment showing the deposit going out, LL's email saying he was tight on the money (and therefore implied the money wasn't with any Scheme)...

 

Much appreciated if you can give me some suggestion or ideas.

 

 

The correct procedure for issuing TDS non-complaince claims is to use form N208 Part 8, rather than an N1 claim form or Money Claim online. The court may or may not allow your claim to proceed (I suspect they will).

 

Make sure you use the correct form and not Money Claim Online should you ever be in the same situation again.

 

In terms of the form you have been sent, I dont know the answer im affraid as I dont believe such forms are sent with the N208 claims?

 

Good luck.

[CarrieYuan]

Planner, thanks for replying. I see your point in using N208 after reading several of threads in this forum and Landlorzone. I proceeded with MoneyClaimOnline, as at the time it seemed to be a relatively cheap and quick way to solve the dispute. Will update on how it turns out.

As for now, I am thinking putting the following wording in the G Other Information.

“As a matter of fact the Housing Act 2004 section 213 (1) and 213 (3) were breached by the Defendant. The assessment of monetary reward according to the House Act 2004 section 214 (4) may therefore proceed justly and expeditiously, and hence I respectfully estimate that the hearing of the claim should last no longer than one hour.”

What do you think? Is it proper? Thanks

[help me kick his butt]

Im not certain on this, and anyone please feel free to correct me, but it is the court who decides the directions and time allowed for the case. Im 95 % certain on this x

[CarrieYuan]

tx. I checked the Bank Claim on this site. It seems to suggest to put the estimation of time and drafted a direction for the judge to consider before the hearing. I can see the benefit of it to direct the juedge to focus on the issue especially in claimants' favour. However the bank claim is a well established procedure. Since TDS cases are relatively new, I am just wondering whether I should follow the suit. Hence the question

[CarrieYuan]

Just an update as promised, the court seems quite lenient on layman filling out moneyonline. (Not an encouragement to fill out the wrong form, but rather to say if anyone, like me, filled a wrong form, no need to lose sleep over it)

 

I received Notice of Allocation to the Small Claims Track (Hearing). court Hearing Date 6 Apr 09. Judge issued a standard direction and allocated 2 hour hearing time.

 

preparing evidence at the mo. I plan to use the NUS template, but would appreciate any suggestion and help. (could you leave a post link if you've gone through the same thing)

 

Thanks

[CarrieYuan]

I lost the claim. The judge said the defence made a good point that section 214 (3) is a precursor of 214 (4). When I issued the case, I had the right to claim both (3) and (4). Regrettably the landlord voluntarily returned the deposit before the hearing so that the DJ cannot make an order on 214 (3) and therefore he cannot make an order on 214 (4).

 

I said whether this is because (3) and (4) should be applied the same time. He said yes.

 

His judgement is a surprise to me. As during the whole hearing, he was asking whether the defendant complied to the section 213. Defence lawyer admitted that the landlord didn't put the money in the TDS or provide me scheduled information. But they argued I suffered no loss as they returned the deposit. I pointed out that I only got the deposit back after I issued the court claim; and that the landlord unfairly withheld the deposit. That's why we are in the court.

 

The judge said he knew that. I thought he was with me. I didn't go into the spirit of the law, as I saw him pretty much on the course of the non-compliance and HA 2004.

 

In hindsight, I probably should mention the spirit of the law even he didn't ask.

 

I am going to appeal. He did say he hadn't got much time to find a definite law piece to determine whether to engage 214 (4) or not. He said another judge might well find it differently.

 

Any recommendation for a good lawyer?

[CarrieYuan]

I am busy contacting lawyers recently, found some good ones and probably will go for one of them. I will write down the defence argument and my thought on these. Hopefully, it can help some people (I did get loads of advice from the site, although I haven't been personally saying "thank you" to each one of you)

[CarrieYuan]

Defence (I am not sure whether I can copy the whole piece word by word, let me know if I cannot)

 

7. This case concerns the following three issues:

a. The meaning of sections 213 (5), 213 (6), 214 (3) and 214 (4) of the Housing Act 2004 ("the Act")

b. The extent of the court's discretion in the light of those provisions

c. the relevance of the only reported authority on those sections of the Act. Harvey v Bamforth [2008] 46 EG 119

 

It then goes on:

 

The Housing Act 2004

8. The defendant places reliance upon the followin gpoints of law:

a section 214 (4) ("the penalty provision") is dependent upon, and must be read in accordance with, the meaning of Section 214 (3), which is its precursor.

b. section 214 (3) provides that the Court must do one of two things ".... "(quoting of the law)

c. One the court has done one of two things, it must then "also" have regard to Section 214 (4), which provides that "...." (quoting of the law)

 

The Court's jurisdiction under the Act

9. The Defendant submits that the court's jurisdiction is therefore dependant upon Section 213 (3) having application. Yet Section 213 (3) cannot apply because neither (a) nor (b) can apply in the circumstances of the present case, since the Defendant has repaid the deposit in full.

 

10. It is submitted that Section 214 (3), upon which Section 214 (4) turns, is quintessentially concerned with circumstances in which: (a) a landlord has failed to repay a deposit to a tenant and the tenant wishes to claim it back, or (b) a tenant wishes to stay in the property and consequently the landlord is required to pay the tenant's deposit into an authorised custodial scheme. The Defendant submits that these conditions do not apply in this case, since the deposit has already been refunded

 

11. It is submitted that these provisions do not apply to the present case for good reason. Chapter 4 of the 2004 Act was passed for the purpose of encouraging clarity and transparency in so far as the holding of tenants' deposits was concerned. The purpose of these provisions is clearly to ensure that landlords provide the relevant information of the authorised schemes in which tenants' deposits are held. The 2004 Act was not passed in order to create a windfall in circumstances where there has been no harm or monetary loss to the tenant, and where the tenant's deposit has been returned in full.

 

12. The Defendant further submits that, by way of analogy with the ruling in Harvey, the Courut must have regard to the nature of the harm and the extent to which the harm has been averted. In Harvey, the landlord had provided the tenant with the required information, but he had done so without the fourteen day time limit. The tenant nevertheless received the required information. In the present case, the Claimant has received the required deposit in full. She has therefore suffered no harm, and could have no use for the information coverning how the deposit was held.

Edited April 8, 2009 by CarrieYuan

[CarrieYuan]

The Defendant's circumstances (we spend the most of time arguing this part. i think either I sucessfully presented the points or the judge thought the points were non-sense. I will put them out briefly so people might know what they can expect in court)

 

13. The defendant also relies on the following five matters of fact:

a. landlord used standard form of tenancy agreement. There are paragraphs regarding deposit a. return condition b. no interest c. circumstances for deduction

 

Judge dismissed it: no schedule information or substantially to the same effect

 

b. the landlord was not aware of the tenancy deposit-taking bodies. then a big paragraph of Harvey v Bamforth on HH Judge Bullimore's doubt on the three tenancy deposit-taking bodies

 

judge dismissed it: ask the lawyer where in the law asked the tenant to notify the landlord of TDS. Also point out "must" in 213 (5) and (6)

 

c. landlord tried to negotiate with me

 

we didn't go this far

 

d. landlord returned the deposit in full

 

we didn't go this far

 

e. landlord in financial difficulty

 

we didn't go this far

 

--

the reason we didn't go as far as c.d. e. was because the defence then trying to develop on Harvey v Bamforth case relating back to point 12.

 

I happened to notice in his defence pack (he only gave to me 10 minutes before court due time. But the court ran late for 2 hours and I was able to read all 14 page of defence. In hinsight I should dismiss the defence, I will come back to this at the thoughts) 22 November 2008 Estates Gazette 119.

 

It says "The draftsman, in dealing with proceedings relating to tenancy deposits in section 214, had clearly differentiated between the need to provide the information and that of doing so within a reasonable time."

 

I argued the landlord was completely failing to put the deposit into the scheme and not able to provide the information. This is the case here and it is therefore of different nature to putting it within a reasonable time i.e. Havey case. This is the very thing judge asked to differentiate.

 

Defence tried to argue the nature was the same. DJ agreed with me and stopped the defence lawyer arguing further.

Edited April 8, 2009 by CarrieYuan

[CarrieYuan]

I didn't make enough noise for his defence point 8-12 because the judge asked me whether I understoodd what the defence meant for 8-12. I said "I think I do". But the judge obviously didn't like that answer, trying to interprete for me. He asked me again "why you pursued the case when you are no longer a tenant? The tenancy deposit no longer of use to you."

 

I then replied when I filed the claim I were the "relevant person" and all the condition of 214 (1) met and therefore I believe 214 (2) should apply which says 214 (3) and 214 (4) should apply. The deposit only returned after I filed the claim.

 

The judge then looked at the timeline realised I did put the claim before the LL returned the deposit. He then asked the defence lawyer whether he believed the case would have been dismissed if the LL repay the deposit one day before the hearing.

 

The defence lawyer mumbled and said of course this is of different case.

 

I thought the DJ was well aware of the absurdity of interpreting 214 (3) as the precursor of 214 (4) and didn't mention anything further.

 

That's the end of discussion for 8-12. DJ only brought up again in the conclusion.

Edited April 8, 2009 by CarrieYuan

[CarrieYuan]

My thoughts (would love to hear your thoughts as well)

 

1. I thought too little about the complication of the court, particularly after i saw no defence evidence before the hearing date. (But I did receive a bundle on the date)

 

2. I was too confident about my presentation of the case. I tried to argue the points raised last minutes thinking I got grounds to dismiss all of them and saved me future trouble to turn up again. Obviously it turned out not as I expected.

 

3. I was not familiar with the procedure of the appeal and underestimated the cost involved in it. I always believed i had a strong case. If I couldn't win in the trial I would go for the appeal. But after going through the cost, uncertainty and trouble of appeal in the past few days, I realised I probably should have asked for an out-of court settlement before the hearing or for adjourning the case when everything turned aginst me based on some last minute defence.

 

4. Judges, are human being, have a personal take on this. Their opinion might not easily be persuaded by words particularly not legally polished ones.

 

5. DJs like GPs have a quite heavy workload (I knew the DJ sitting in the court non-stop from 10:00 -- 13:10 and he dealt with various case) and therefore don't expect him to know the details of the law particularly not the nuance of the law. Even something obvious to me can be overlooked by a DJ. Presentation is very important.

 

7. Putting down the points of argument in writing in a numbered form can help judge to follow the case. (I think my argument in words aginst defence 8-12 might get lost when he finally considered the judgement)

Edited April 8, 2009 by CarrieYuan

[CarrieYuan]

Excuse my bad written English. English is not my first language. (I probably shouldn't fight a legal case in an English court)

 

I tried to change the title of the thread to Penalty Claim -- including hearing details. I think this might attract the proper attention and help the people in similar situation. Could BM help with that?

 

Also as I mentioned before apeal is quite expensive, is anyway that I can get help from charitable organisations like this site towards costs? Obviously I think loads of people would have a vested interest to see my case through appeal court (rather than settling outside court).

 

p.s. I am not qualified for legal aid. Shelter could not help in giving specialised advice. CAB might be able to after I receive written DJ's judgement but they said legal experts were in high demand let alone a specialised one. Even the best scenario where they could locate a specialised expert, it might take ages to get an appointment. I am against clock at the moment and cannot afford the risk as I have 21 day deadline.

Edited April 8, 2009 by CarrieYuan