Da Costa v Pinter Bromley County Court April 2008
With thanks to the November Legal Action housing updates. This was a tenancy deposit and 3 x deposit penalty claim. The rent was £1,950 a month. The tenancy agreement also stated ‘Payment required in advance of £4,200′. The invoice from the landlords agents said that of this, £2,250 was ‘a deposit’.
At the end of the tenancy, the deposit was requested by the tenant, but not returned. There was also no trace that the deposit had been protected in one of the schemes. The tenant brought a claim for deposit and the penalty. After the issue of proceedings, but before the hearing, the deposit was put into one of the schemes and details provided to the tenant.
DJ Burn ordered return of the deposit and the 3 x penalty. The DJ stated:
The purpose of the Act is to try to ensure that landlords secure tenancy deposits in a recognised deposit scheme at the start of the tenancy, so that the deposit can be returned to tenants quickly when the tenancy ends, and that disputes about the deposit can be resolved under the schemes’ procedures without the need for court proceedings.
Landlords who describe a deposit as something else, who do not secure it promptly in a deposit scheme as required by the Act, then fail to return the deposit when the tenant leaves (especially if this is without good cause, thereby forcing the tenant to start court proceedings to recover the money) but who then at the last minute after the tenant issues proceedings, pay the deposit into a scheme, are clearly flouting the spirit of the legislation and, on my interpretation, the letter also.
If the s213 and s214 remedies are not applied in a case such as the instant one, the Act would be rendered virtually toothless when landlords flout its provisions.
We are, of course, still in the land of the County Court lottery on the late compliance issue. None of these cases are binding on other courts. Harvey v Bamforth went one way and other cases, including this one, have gone the other. There does seem to be a distinct view on the spirit and purpose of the legislation emerging, through which the, to put it charitably, ambiguities of the Housing Act 2004 are viewed. But until we have a higher court judgment on the issue, there is no certainty.
[For all tenancy deposit case posts click here]
Does anyone know if there are any cases likely to go to the Court of Appeal on the tenancy deposit legislation, and clear up all this ambiguity and confusion? As things are at present it is difficult to advise anyone.
I don’t know of any and would also love to hear. I know of one county court case that was given permission for a leapfrog appeal direct to the Court of Appeal – on the issues of both late compliance and ‘renewal of tenancy’ where the deposit was physically given to the landlord for a tenancy that started before April 2007, but there was a subsequent renewal. The county court found against the landlord on both issues, but recognised the importance of clarification by the Court of Appeal. Sadly, I heard nothing more – funding, I presume.
Halifax Law Society mentions a case but not much information.
http://www.hils.org.uk/index.php?option=com_content&view=article&catid=9%3Alaw-notes&id=57%3Atenancy-deposit-scheme-appeal&Itemid=9
Also – has anyone heard whether cases are in practice being assigned to multi track as suggested by CPR? (even when less than £5k)
As the whole risk of costs makes it much more difficult if it is being assigned to multi track
Cait
Cait, I’ve certainly heard of cases being allocated to the multi-track. Of course, while there is the costs risk, it also makes being represented more plausible.
Does it?
I was hoping it would – but unless there is an issue around S21 I think it fails the sufficient benefit test for full certification?
So I would be interested to know whether any solicitors are actually running these cases, under public funding, when it is *simply* about retrieval of the deposit (and the fine)
Cait
PS if no one *can* get public funding – then it would seem like a great opportunity for ‘no win no fee’ cases
It was CFAs I was thinking of, certainly. The trouble is, until there is some kind of certainty over some of the issues, like late compliance, it is a very high risk strategy. I haven’t run any. All the stories of acting for the tenant I’ve heard from others have been Defence and Counterclaim to possession of one ground or another.
Cait – is there general guidance that TDS’s are allocated to MT or just the usual points about complexity etc? Can’t find anything in CPR 56 or 8.
Part 8 claims are usually multi track by default, I believe.
In the usual amusing drafting of the CPR they are “treated” as having been allocated to the multi-track (CPR 8.9(c)). Unless of course a rule or practice direction provides otherwise (but when isn’t that true)?
The appeal of a Part 8 claim does not go to the Court of Appeal in the first instance but to the High Court so it will be necessary to look there to begin with. It is a shame that the reports do not make clear precisely what letter of the legislation the judge deemed the landlord to be flouting.
I can’t get at Halifax page to remind myself what it said at present (we appear to have overwhelmed their server
), but it is possible to go straight to the Court of Appeal with permission for a leapfrog appeal from the County Court – CPR 52.14, I think.
I thought we were supposed to use part 8 anyway – this notice has been on the HMCS site for ages http://www.hmcourts-service.gov.uk/docs/infoabout/housing/section-214-application.pdf
Anyone know if they are actually going to amend the CPR (as per para 7 on the note)?
Claims should be Part 8, certainly. Don’t know about the CPR amendment. Maybe the 51st?