Help!! My deposit claim dismissed - no costs

[blackcatgirl]

I took my ex-landlord to court for breach of the HA 2004.

He didnt protect money within 14 days

He didnt protect money 2 months later and said in an email to me that he "saw little point" in doing so

I filed a claim

Tenancy ended

He paid money into a scheme a month after tenancy ended

DPS put money in a suspense acct pending a court order for its release (as had they known tenancy ended they would have rejected the money - all confirmed by them in writing to me).

LL made a vexatious counterclaim - unsubstantiated with no evidence seen - I spent 11 months up to Court gathering evidence and witness statement etc (large costs to myself - allocation questionnaire - reply to their counterclaim - initial allocation hearing - court costs - travel of 2 hrs drive away each way to attend court etc)

 

Finally got to court and the judge dismissed my non-compliance case even though she stated there was a breach in the HA 2004. She refused to acknowledge the DPS Ts&Cs and the DPS insistence of no free ADR and no protection of deposit offered as tenancy had ended.

 

I got no costs award (nothing at all!) - no 3 times penalty - and no Court Order (only a consent order which I am awaiting the DPS to tell me if that is sufficient to at least get my deposit returned to me).

 

Any ideas how to appeal this insane judgement??

[Sali]

I can only suggest you call Shelter to see if they can offer you any advice. I would suggest an appeal and maybe a judge on another day would find in your favour. The law is so fickle. However, you have probably spent much time, money and anguish on this issue already.

 

What is the point of having a law on protecting deposits when it is not upheld by a court?

[GuidoT]

Were you and the other side legally represented?

 

What track were you allocated to?

[blackcatgirl]

Thanks - I shall try contacting Shelter

 

I paid for solicitor advice at the beginning - to do the reply to the defence and CC, allocation questionnaire completion etc. Estimated costs on the AQ my solicitor said would be £5250

 

We were litigants in person at Trial I think the term was!

 

Allocation hearing in Dec put case to Fast Track (not small claims) in order to protect my costs of bringing the claim! That district judge would have easily found in my favour.

 

Sadly once I got to Trial, I was allocated a judge - not district judge - who had no interest in hearing anything from me - only the LL and his woeful story of his sister dying a month before I paid the deposit, then he had 12 days to protect the money after I paid it (head all over place - didnt do it), then he had almost 3 weeks on holiday abroad, then bird or swine flu when he got back (he couldnt remember which) and so it went on...

[GuidoT]

I believe the present state of the law is that as long as the LL protects the deposit you are not entitled to the 3x. I know it does not seem right and it means the 14 days has no teeth.

 

I am not too familiar, but I do not think that a LL can protect the deposit after the tenancy expires. The law in this area is evolving.

 

But it seems to me that you won in that you should get your deposit back. It follows that you should have got some of your costs. Did you prepare a schedule of costs for the hearing and issue to the judge?

 

Obviously you would not be entitled to the entire £5,250 as you did not have a solicitor throughout.

 

What did your particulars of claim (on the N1) say?

[blackcatgirl]

Thanks for the swift reply.

 

I havent got my deposit back (and I believe unlikely to either) as I didnt even manage to get a Court Order for its return - only a 'consent order' - as the judge refused to issue a Court Order (else she would have to apply the mandatory fine!)

The DPS say (verbally so far) that without a full Court Order they cannot return my deposit. That is their terms and conditions after all. If it wasnt needed - then no court time was needed to get an Order!

 

The claim started on moneyclaim online not a N1. There I sought deposit protection or return plus initial filing costs (as tenancy due to end a few days later).

 

After the LL complete denial and lodging counterclaim it came out of the online system into court system - where on the AQ and reply to their CC I stated I would be going for costs (as they were complicating matters considerably and my costs would escalate rapidly - which happened!). Ditto on a Part 36 offer I made.

 

Its all a complete very expense mess, and I havent "won" at all. I'm a tenant and left in huge financial difficulty

 

Incidentally - the £5250 was estimate for no solicitor representation at court, no loss of income and for 1/2 day in my local court. After the estimates made, it was allocated to a court a long way away - thus requiring time off work - (LL local court) and for a full day.

My estimated costs were revised and issued at the time of exchanging list of docs (just before the £5250 were exceeded - and after an Allocation Hearing which wasnt costed for from the outset), and again before Trial started (6 months later and after I did the Trial bundles).

[blackcatgirl]

Oh and I got written confirmation from all three schemes that none of them would protect a deposit paid in after a tenancy ended. All in my witness statement and evidenced in Trial bundles... but ignored by the Judge.

[xoAmyox]

From what I see here, the judge has made a rather large error, as I'm sure you know the legislation says that if the judge orders the return of the deposit they must ALSO impose the 3 x penalty. It seems very strange that this did not happen, so I would thoroughly recommend an appeal. For the best advice on doing this contact either shelter, or the court themselves.

Do bear in mind that it is a common belief that if the deposit is repaid that the the 'ALSO' part of the legislation cannot apply, so accepting your deposit back at this point could be risky.

[Webranger]

This is all quite extraordinary, but I would advise great care before appealing. Trouble is you have only a limited time and it will cost you another £100 just to lodge a request for permission to appeal.

 

What you really need is to get your deposit back. You claim that DPS say that that would not accept a deposit after the tenancy has finished, but having accepted it won't pay it to you? That sounds mad - especially as they have a Dispute Resolution scheme which they have to operate.

 

Initiate that and your landlord will have to admit that the tenancy has ended and DPS will have to pay the deposit to you. Why didn't you do that the minute you learned LL had paid the deposit in?

 

You - and others - should realise that you were unwise to start proceedings for debt BEFORE the tenancy ended and therefore before LL was due to pay the deposit back to you. (I'm responding to your other post as well)

[xoAmyox]

I'm have to disagree Webranger, we are discussing the point after the fact here. Hindsight is always a wonderful thing, but in this case we need to focus on help going forward.

Also, it is not always unwise to start proceedings before the tenancy ends. I have a solicitor here in Coventry (with 26 years experience in housing law) who has said the judges locally are of the opinion that the legislation refers throughout to the 'tenant'. They take this to mean that an 'ex-tenant' therefore cannot apply for the penalty. However misguided this may seem, it is unfortunately their opinion and that counts for everything when getting a judgement.

[Steve__M]

To back up what Amy says, a few of the solicitors on the swarb forum have also made the point about the fact that only the "tenant" can issue a claim, and an ex-tenant is not a tenant, so Webranger's advice is risky.

 

You said:

 

She refused to acknowledge the DPS Ts&Cs and the DPS insistence of no free ADR and no protection of deposit offered as tenancy had ended.

 

Was the end of the tenancy relevant to the judge's decision, or is this sentence ambiguous?

 

I thought a Consent order was a legally binding, but voluntary, agreement.

[Webranger]

I'm not sure what you disagree with.

 

Your local judges' opinion on "ex-tenants" is very interesting, but I doubt it would be upheld in higher courts because it makes a nonsense. Many tenants don't realise that their deposits should have been protected and have not been until they leave and want it back. If the request is refused, or just ignored, THAT is when the penalty is really deserved.

 

I'm not saying that tenants should not start proceedings during the tenancy if they have ASKED the LL to protect and he has failed. In that case, certainly start an action, but don't proceed demanding the penalty once LL does protect. In this case it seems that blackcatgirl was about to leave, had not had a refusal from LL, but started proceedings. A few days wait would have been wiser.

 

This is not to say that the judge's decision was not bizarre, it certainly was.

Edited July 21, 2010 by Webranger
typo

[Webranger]

I've just seen SteveM's post after making my post and I don't know what advice he says is risky.

 

My advice was to get the deposit back from DPS by using their dispute resolution scheme. What's risky about that?

[Steve__M]

I've just seen SteveM's post after making my post and I don't know what advice he says is risky.

 

My advice was to get the deposit back from DPS by using their dispute resolution scheme. What's risky about that?

 

To clarify, what is risky is applying after the end of the tenancy. The legislation says that the "tenant" may submit an application. The argument goes: "no tenant, no application".

 

Till a higher court makes a judgement, the judge is entitled to interpret things absolutely if she does not like the legislation.

 

The legislation is a nonsense!