Advice / help neede for Small Claims Court claim / counterclaim

Marktheshark

Carlos0371 wrote: »

So when we go to Court and (if) I win, then as MarktheShark says, can I can serve this on the defendant outside court? Is it appropriate and a normal course to take?


Again, thanks for your help. This was slow to get a response, but now my faith in this community has been restored, as more people get on board. Thank you all. :beer:

Yes if it goes in your favour, as his solicitor is present you have a legal witness of service, all free to you !
He can then get his cheque book out and start paying the solicitor to work out how to stop been made bankrupt.

Well, he started it !

Carlos0371

I am having a good day.

Thanks guys, Mark I will get the stuff over to you as soon as I've completed it.

Guys you rock

Carlos0371

Hi Mark, have PM'd you.

arcon5

Forget the 'copyright' thing, it's irrelevant.

Problem is he's claiming for cleaning costs also. I f you lived there and contributed towards damage to the property he'd have a valid claim still for your share.

Carlos0371

Irrelevant how? Surely demonstrates the tenancy agreement was dated and signed BEFORE it was printed, so therefore fraudulent?

Despite no inventory being taken in 2006 when the tenancy began, no visits between then and vacating the property apart from one visit once it was being sold, when no mention of any damage, redecoration or anything else was mentioned? These claims are made up, there was no damage, and we actually kept hold of the keys for a few days after moving out to clean the place, and to clear out rubbish from the garden!

Crazy_Jamie

Right, there are a mix of issues here, so I'm going to dive right in and go through them in no particular order.

1) Just so we're clear, your claim against him is based on Restitution, which is the law of gains based recovery (as opposed to personal injury, for example, where you're claiming for your losses). On the basis of what you've written here so far, your claim in this regard looks to be a strong one.

2) It could technically be theft, because 'appropriation' includes retaining possession of an item that you know does not belong to you, and if there is no intention to return that 'appropriation' can be 'dishonest'. But the police are never going to be interested in a case such as this, particularly where the Defendant is disputing that the money is owed. It is rightly considered to be a civil matter.

3) If your claim is unsuccessful, the only cost that the Defendant can recover as of right is the cost of issuing the counter claim, meaning the actual issue fee. No further costs will be payable unless the Court finds that you have acted unreasonably, which is incredibly unlikely from where I'm sitting.

4) Serving a statutory demand on him as soon as you win is a pointless exercise, and honestly I'm really not sure why it has even been suggested. By default he will be given 14 days to pay any judgment amount, and potentially slightly longer if he asks for it, though it'd be unusual for him to be given more than 28 days. Mark is harking on about the money it will cost him to 'figure out' how to 'stop being made bankrupt', but all he has to do is pay the judgment figure within the specified time, or 14 days if no time is specified. It's hardly going to be a massive inconvenience.

5) In fact, in my view the way that Mark is approaching this issue generally is unhelpful. This is a stressful process that you've found yourself in, and the way that he is talking about and approaching this case is only going to make that worse. You're not at 'war', you're involved in civil litigation, and looking at the issues in an objective and level headed manner is going to get you much further than turning up to Court in metaphorical war paint.

6) In fact, while I'm on this point, Mark has mentioned the possibility of the other side 'withdrawing' a document if you point out flaws in it. It is not physically possible for a party to 'withdraw' a document; once it has been disclosed the other side (i.e. you) has a right to rely on it even if the original party doesn't want to use it anymore. Whether or not you take this point about the date of the copyright is up to you, but there's no danger of the Defendant 'withdrawing' a document either way.

7) Completely unravelling the counterclaim is difficult at this stage without knowing exactly what has been said, or to be more specific without knowing exactly on what basis the claim has been brought. If you want to send more details to me via PM I'd be happy to give you my thoughts on it.

7) As far as I can tell your issue with the directions proposed by his solicitor hasn't been addressed. The directions that the solicitor has proposed sound like standard fast track directions, which are not appropriate in a claim of this nature. Most courts will have standard small claims track directions. Some do split out the service of documents and witness statements, but most simply combine them and state that all documents or statements on which a party wishes to rely should be served by a certain number of days before the hearing. That's all that needs to happen here. It may be that if your local court is busy you won't get a trial date until September, but I would hope it'd be quicker than that personally.

Now, just one more thing:

Carlos0371 wrote:

Irrelevant how? Surely demonstrates the tenancy agreement was dated and signed BEFORE it was printed, so therefore fraudulent?

On a basic level the one thing you have to bear in mind is that it is on the Defendant to prove the counterclaim, so he has to produce evidence to back up his assertions. Do you dispute that a tenancy agreement existed on the terms that are reflected in that agreement? If you don't think that tenancy agreement is accurate then by all means argue that it is not the one that was originally signed. But if it is either the correct agreement or an accurate reflection then that point only goes so far in practice.

Has he produced any evidence of the alleged damage, and/or invoices for the cleaning costs? To my mind he is going to be in some difficulty explaining why he has failed to pursue you for these costs before you brought this claim. That in and of itself isn't always a good point because he does have six years to bring such a claim, but in this particular case I would expect the Court to place a degree of importance on the issue of why he's only raising these issues now, because one would expect landlords to act pretty swiftly with this sort of thing.

Carlos0371

Hi Jamie. First of all thank you so much for all your help.

I'm going to take nothing away from Mark because his advice has appeared to be sound to me thus far.

You sound as if you have some expertise in this area, so as I'm still awaiting a response from Mark to my documents (sorry Mark, I know you don't sit on here 24/7 and I do appreciate your offer of help), would you mind if I sent the documents I have over to you via PM?

Time is of the essence as I need to get my defence posted today.

Thanks in advance, Carl.

Crazy_Jamie

Carlos0371 wrote: »

Hi Jamie. First of all thank you so much for all your help.

I'm going to take nothing away from Mark because his advice has appeared to be sound to me thus far.

You sound as if you have some expertise in this area, so as I'm still awaiting a response from Mark to my documents (sorry Mark, I know you don't sit on here 24/7 and I do appreciate your offer of help), would you mind if I sent the documents I have over to you via PM?

Time is of the essence as I need to get my defence posted today.

Thanks in advance, Carl.

Feel free to PM those documents over to me via PM if you'd like. The one document I need to see if the Defence, but I'll look at anything else that you want to send me.

Carlos0371

PM'd you Jamie, and thanks again.

CIS

I've just noticed something, the tenancy agreement between the defendant and my partner is dated 6th August 2006, but at the bottom of the last page (the signature page) the document is copyrighted 2008.

I've dealt with this before with tenancy agreements - the landlords go very quiet when you finally pull it out of the bag.