I have an old tenant who has taken me to court for not protecting a deposit.

[rennuz]

A tenant is taking me to court for non protection of deposit. I was never given a deposit so I am not too worried about it, although I stupidly filed it late thinking I had. Anyway its Part 8 claim. She has left with over £5,000 of damage can I counterclaim on via this acknowledgement, it doesnt make it clear I can?

[AndyOrch]

Part 20 claims

 

8.7 Where the Part 8 procedure is used, Part 20 (counterclaims and other additional claims) applies except that a party may not make a Part 20 claim (as defined by rule 20.2) without the court’s permission.

 

I dont think a part 8 should have been used in this instance.....

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part08

 

Andy

[rennuz]

Thanks Andy for info, a bit more on my case below...

 

 

Ok, so I have a slightly long-winded scenario, tenant in a property for 8 yrs. All great from both sides, no rent increases from me and rent paid on time from them. Moved out and now filling for deposit not protected, via a claims company.

 

So they moved in in 2009 and only paid the rent, there was actually a contract signed showing a deposit taken and this was then to be paid later that day or week (I cant remember the exact details it was 8 yrs ago) I got a call the night of her moving in saying she couldnt afford deposit, not a good start and I did say she should leave but I called back and just said sign a new contract and we will say no deposit, thought it would be more hassle moving her and she was moving next to her best mate so thought she would be long term. So she signs new contract and sends it back.

 

Fast forward to now she sends me old contract and says where is my deposit protected? At this point I have been living out of the UK for 2 yrs didnt have access to my paperwork and just assumed she had paid deposit due to contract she sent, I literally couldnt remember, it wasnt a huge amount so I actually protected it without too much thought.

 

She then sends a letter before action, so I call her up and we agree on deposit being returned and an extra amount for a bill.

 

There are various email exchanges but this is also agreed on the email and I forward over the amount for a bill and then say the rest will be paid on leaving.

 

She then gets a no win no fee solicitor on board.

 

I look into it further on return to UK, I realise my mistake that she never did give a deposit, see my updated contract (only a scanned version, 1st one had witness this one didnt as I sent in post) look at my old bank statements and it shows just the rent going in nothing else. (she has since said she paid deposit via bank transfer and rent via cash, I dont accept cash, never have, my witness to my signature will verify that I didnt get any cash).

 

So yes I protected, late a deposit I never got. So the way I see it she will use the 1st contract and say a cash payment. My defence is no contract and no payment, plus she already accepted an offer from me.

 

We are now at the stage of court, I got an initial letter from claims co. called them up to tell them all of the above then the next thing is I get court papers. I have to file defence in 3 days, havent even seen all documents as my post hasnt come but luckily got main bits on email. Its a part 8 claim.

 

Also when she left I had to pay £5k to make the place habitabal for new tenant.....

 

To defend I was quoted inital costs of £1000 and they have no cash so no point claiming costs from them, thought I might as well settle instead of fighting.

 

I have offered the equivalent deposit back twice. see what they say but that would be less than costs to fight and expense of going to UK to court.

 

My defence, no deposit paid and a settlement reached (all be it on email) anyway. Do I have a good case? Also can I counterclaim on this procedure?

[rennuz]

I have an old tenant who has taken me to court for not protecting a deposit.

I didnt get a deposit but it was so long ago I put my foot in it by protecting a non-existent deposit,

thats another story.

Short story is that we agreed on an amount to settle this before tenant left, all in writing on email.

I sent over part payment and then part of the agreement was to send over the rest of the payment on satisfactory return of property.

In this time I then went back to UK and found old contract showing nil deposit and old bank statements with no deposit received.

At this point I was at the stage of well I had already agreed on this amount, saying yes I would give deposit back, so I had shot myself in the foot.

the property was left in an awful state,

£5k later to sort it out,

I sent letter, on 7th May saying what you gonna do and no reply,

I didnt give the rest of settlement as I was waiting for her to get back to me.

No call and then I get court papers,

They started on 10th May,

she moved out at end of April.

I received all these court papers for a claim of 3 times deposit.

I asked them why didnt they call or speak to me before doing all this and they insisted that I hadnt made any effort to settle????

I send a without prejudice offer of twice deposit,

they have now sent a part 36 offer of the same amount

and have asked that I pay all costs, £1700 costs??? and then 2 timed deposit......

Other issues,

I want to throw case out,

I havent got a deposit,

I want to counterclaim but where do I stand with this offer,

surely they should have at least tried to contact me,

the costs are alomst twice my offer????

What can I do about the costs??

I am out of UK and would rather settle as this is a headache I dont need.

I cant even go on about my other personal issues they are a nightmare, just bad timing....

[BazzaS]

Has the claim been allocated to a track?. If so is it small claims track (rather than fast- or multi- track)?

 

"Part 36 offer" relates to CPR 36, and CPR 27.2 (1)(g) notes that CPR 36 doesn't apply to the small claims track.

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27#27.2

 

If the "part 36 offer" fails to meet the requirements for it to be a part 36 offer it won't have the cost consequences of CPR 36 (though it may still be a valid Calderbank [CPR 44] offer).

https://keoghs.co.uk/keoghs-insight/aware/part-36-vs-calderbank-offers

 

Additionally, IF the claim is in the small claims track: costs are limited in the small claims track. So, consider this carefully before accepting what looks like a Part 36 offer if the claim is in (or almost certain to be in) the small claims track.

[BankFodder]

Yes, please tell us more about the claim. What is the value of the claim? Please could you post up the claim form in PDF format here.

 

Now that you have found the contract showing that there was no deposit I would certainly put in a counterclaim for the return of money paid under a mistake.

 

Even though you have agreed to repay money, it seems to me that there is no reason why this agreement shall be binding in the circumstances.

 

Of course, if you are out of the UK then you won't be able to deal with it. Don't you have someone in the UK who can open your mail and scan the documents to you?

 

Please start off by telling us more about the claim in a careful and chronological way.

[rennuz]

Thanks for replies and just getting back on to this.

 

So as we speak this is a Part 8 claim, from what I gather as its a no win no fee solicitor they get paid from costs and Part 8 seems best way for them to go unchallenged and get as much in as they can.

 

I sent in a letter to Court and Judge has kept court date of next Tuesday. But has said it shall proceed as a Directions hearing. In my letter I asked for case to be thrown out as there was no deposit and also the fact that I wanted to counterclaim for damages to the property.

 

If I counterclaim will it be a normal small claims court process and will the no win no fee solicitor lose interest?

 

I was willing to agree settlement but as I said the solicitor wants £1,700 costs so its just not an option, where do I stand with that? Costs will increase if we go to court and then court again, so this will only go up.

 

I want to settle as I am out of the country, the otherside are now coming out with witness statements saying I took money in cash etc. and she is basically a lying b$%$£ and has obviously convinced her solicitor and also I want to be seen to be making an effort to settle before court but I see the solicitors costs as the stumbling point in all of this.

 

Also why didnt the solicitor speak to me before going gung ho into it all, no letter nothing to me?? Is that right?

[rennuz]

I do have the contract, I got it last week and will send it this week.

 

Also they have also requested deposit from DPS scheme so me putting this money in there that they didnt give and claiming wasnt protected they are getting the full benefit of doing so....

 

What a waste of time.