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TDS Case Lost !!! - Going to Appeal
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Prancer
Posts: 9 Forumite
At our court hearing today we lost our TDS case.
The landlord had subsequently protected our deposit on receipt of the court claim and the judge ruled that because the Housing Act Section 214 (2) (b) states : "Subsections (3) and (4) apply if on such an application the court -
is not satisfied that the deposit is being held in accordance with an authorised scheme" there was nothing he could do. It would have to have said "was" not "is".
He did though award us costs as he said it was the landlord's fault the case had been brought.
We argued the point of two other cases where we knew judges had concluded that subsequent protection did'nt equate to compliance but he'd already made his decision and said he didn't have to follow those as they did not come from a higher court.
He did though give us permission to appeal saying it would be in the public interest as it's wrong that so many judges disagree and give different verdicts. He also admitted he could be wrong on his interpretation of the law.
We are definitely going to appeal, does anyone know of any appeals so far ?
The landlord had subsequently protected our deposit on receipt of the court claim and the judge ruled that because the Housing Act Section 214 (2) (b) states : "Subsections (3) and (4) apply if on such an application the court -
is not satisfied that the deposit is being held in accordance with an authorised scheme" there was nothing he could do. It would have to have said "was" not "is".
He did though award us costs as he said it was the landlord's fault the case had been brought.
We argued the point of two other cases where we knew judges had concluded that subsequent protection did'nt equate to compliance but he'd already made his decision and said he didn't have to follow those as they did not come from a higher court.
He did though give us permission to appeal saying it would be in the public interest as it's wrong that so many judges disagree and give different verdicts. He also admitted he could be wrong on his interpretation of the law.
We are definitely going to appeal, does anyone know of any appeals so far ?
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Comments
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The judge was right; cases in a small claims court do not set any legal precident.
Before wasting money on appealling, take legal advice
See this recent thread for why:
http://forums.moneysavingexpert.com/showthread.html?t=1064007
(posts#57 to #83 are particularly relevant)"Now to trolling as a concept. .... Personally, I've always found it a little sad that people choose to spend such a large proportion of their lives in this way but they do, and we have to deal with it." - MSE Forum Manager 6th July 20100 -
could well be the first appeal as the legislation is very new and there hasn't even been that many first instance decisions!
points for appeal could be:
1) check into the rules of the deposit scheme it is protected with... was the protection backdated to the start of the tenancy, was the deposit registered in compliance with the scheme rules, would the deposit protection scheme agree to arbitrate in a dispute (see the thread premier linked to). you need to find some evidence that the deposit is not protected "in accordance with the scheme".
2) literal vs purposive (ie intention) interpretation of the law:
What is the point of the 14 days rule? why is it in the legislation if it is ok for the landlord not to comply with it?
What is the point of the legislation if tenants still have to file court actions to get landlord to protect the deposit?
if you could nail point 1) you should win.. point 2) is much more open to debate so risky!0 -
just also to say, appeal could be costly - if you loose you will have to pay landlords costs as well which could include legal representation.
Although I'd love you to appeal, definitely get advice on the potential cost!!0 -
Thanks for the advice. Will look into the details of our deposit protection scheme further.0
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Sorry to hear you have lost your case.
Its interesting to hear you know of two other cases which went the other way. I certainly think you should have won but as your case proves it is open to interpretation and it would be valuable to have a higher authority to decide this.
Moneysavingmonkeys advice on appeal points is very sound.
Which scheme was your deposit held in?0 -
I have to say, I agree with the judge. The legislation is very clear on this point and have always felt it was not the legislator's intention to have an open ended liability of 3 x deposit, although I feel there should be provision for some sort of penalty for late compliance!
NotlobNotlob0 -
Sorry to hear you have lost your case.
Its interesting to hear you know of two other cases which went the other way. I certainly think you should have won but as your case proves it is open to interpretation and it would be valuable to have a higher authority to decide this.
Moneysavingmonkeys advice on appeal points is very sound.
Which scheme was your deposit held in?
Thanks redcar. Deposit was placed with Deposit Protection Service.0 -
Prancer - have you spoken to Shelter about any of this, or the local Law Centre (if there is one) or Tenancy Relations Officer? *Sometimes* there can be support for those who are "testing" the law for the wider benefit of the public. It may also be worth talking to the Community Legal Service http://www.clsdirect.org.uk/
Also, I have said before, but anyone concerned about the way this legislation is being applied and/or is failing to protect the interests of either LLs or Tenants should contact their MP http://www.theyworkforyou.com/ and the Housing Minister. The Govt is currently reviewing the private rentals sector so it's a good time to highlight the practical difficulties arising from the legislation & its interpretation within the courts.0 -
Your deposit is now protected and you have no costs to bear. I would leave it at that.
I suspect the court will look at a subsequent case, in the same light as the previous one.
You will lose again and this time you will be liable for the costs, I agree that LLs shouldn't be able to get away with this, but think seriously you will probably be throwing good money after bad.0 -
Prancer - have you spoken to Shelter about any of this, or the local Law Centre (if there is one) or Tenancy Relations Officer? *Sometimes* there can be support for those who are "testing" the law for the wider benefit of the public. It may also be worth talking to the Community Legal Service http://www.clsdirect.org.uk/
That's great advice, thank you, I'll certainly make contact with them as someone needs to define this law. IMO it's now giving landlords the message that they only need to protect the deposit when they have to and I don't think that was the intention of the legislation.
Also forget to mention, as a direct result of our claim we have been served with a Section 21 by our LL (no rent arrears etc.).0
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