Comments on: Tenancy deposit – late compliance again http://nearlylegal.co.uk/blog/2009/11/tenancy-deposit-late-compliance-again/ Housing law news and comment Fri, 12 Mar 2010 11:31:08 +0000 http://wordpress.org/?v=abc hourly 1 By: Francis Davey http://nearlylegal.co.uk/blog/2009/11/tenancy-deposit-late-compliance-again/#comment-3065 Francis Davey Sun, 27 Dec 2009 20:32:26 +0000 http://nearlylegal.co.uk/blog/?p=3621#comment-3065 ... and in those cases you are always going to have a costs risk even on the small claims track. … and in those cases you are always going to have a costs risk even on the small claims track.

]]> By: NL http://nearlylegal.co.uk/blog/2009/11/tenancy-deposit-late-compliance-again/#comment-3064 NL Sun, 27 Dec 2009 16:38:41 +0000 http://nearlylegal.co.uk/blog/?p=3621#comment-3064 Thanks Nic. We reported the Tiensia appeal here: http://nearlylegal.co.uk/blog/2009/11/tenancy-deposit-tiensia-revisited/ Looking forward to March/April. A collation of cases is useful. Thanks Nic.

We reported the Tiensia appeal here:
http://nearlylegal.co.uk/blog/2009/11/tenancy-deposit-tiensia-revisited/
Looking forward to March/April.

A collation of cases is useful.

]]> By: Nic Madge http://nearlylegal.co.uk/blog/2009/11/tenancy-deposit-late-compliance-again/#comment-3063 Nic Madge Sun, 27 Dec 2009 10:19:44 +0000 http://nearlylegal.co.uk/blog/?p=3621#comment-3063 I understand that in Universal Estates v Tiensia permission to appeal was granted by Lloyd LJ on 23 September 2009. The appeal is listed as a floater on 31st March/1st April 2010 before Arden, Maurice Kay and Patten LJJs. In the mean time I am posting a summary of all the country ocurt decision of which I am aware on my web site www.nicmadge.co.uk. Follow the links ot "housing". Nic Madge I understand that in Universal Estates v Tiensia permission to appeal was granted by Lloyd LJ on 23 September 2009. The appeal is listed as a floater on 31st March/1st April 2010 before Arden, Maurice Kay and Patten LJJs.

In the mean time I am posting a summary of all the country ocurt decision of which I am aware on my web site http://www.nicmadge.co.uk. Follow the links ot “housing”.

Nic Madge

]]> By: NL http://nearlylegal.co.uk/blog/2009/11/tenancy-deposit-late-compliance-again/#comment-3062 NL Thu, 24 Dec 2009 17:55:54 +0000 http://nearlylegal.co.uk/blog/?p=3621#comment-3062 Nick, we know the precedents you mention well (you are talking to a bunch of lawyers here) but that doesn't necessarily help. Firstly, it has to be in reference to a specifically ambiguous phrasing. Most of the county courts have apparently found it isn't ambiguous - but have decided in different directions. Secondly, until we have a higher court judgment, county courts are not bound by any other county court decision. Until it reaches the High Court or Court of Appeal, citing the extra statutory material is in no way decisive for another court. Nick, we know the precedents you mention well (you are talking to a bunch of lawyers here) but that doesn’t necessarily help. Firstly, it has to be in reference to a specifically ambiguous phrasing. Most of the county courts have apparently found it isn’t ambiguous – but have decided in different directions. Secondly, until we have a higher court judgment, county courts are not bound by any other county court decision. Until it reaches the High Court or Court of Appeal, citing the extra statutory material is in no way decisive for another court.

]]> By: Nick P http://nearlylegal.co.uk/blog/2009/11/tenancy-deposit-late-compliance-again/#comment-3061 Nick P Thu, 24 Dec 2009 16:55:47 +0000 http://nearlylegal.co.uk/blog/?p=3621#comment-3061 Do you know I am getting rather hacked off with all the divergent county court judgements! I would have thought that looking at the Law Commission's report & Second Reading of the Housing Bill (Act 2004) would beuseful in bringing the courts to a logical and consistant conclusion on tenancy deposits and s214(4) matters. Both Hansard and Law Commission reports are admissable due to the two House of Lords ( now Supreme Court) judgements : Black Clawson International Ltd v. Papierwerke AG [1975] UKHL 2 Lord Reid “….I think that we can take this(Law Commission) Report as accurately stating the ‘mischief ‘ and the law as it was then understood to be, and therefore we are fully entitled to look at those parts of the Report which deal with those matters…..It has always been said to be important to consider the " mischief" which the Act was apparently intended to remedy. The word " mischief " is traditional. I would expand it in this way. In addition to reading the Act you look at the facts presumed to be known to Parliament when the Bill which became the Act in question was before it, and you consider whether there is disclosed some unsatisfactory state of affairs which Parlia- ment can properly be supposed to have intended to remedy by the Act. There is a presumption which can be stated in various ways. One is that in the absence of any clear indication to the contrary Parliament can be presumed not to have altered the common law farther than was necessary to remedy the "mischief". Of course it may and quite often does go farther. But the principle is that it the enactment is ambiguous, that meaning which relates the scope of the Act to the mischief should be taken rather than a different or wider meaning which the contemporary situation did not call for. “ Pepper (Inspector of Taxes) v Hart [1992] UKHL 3 LORD BROWNE-WILKINSON “….In my judgement…reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words….Take the normal Law Commission Report which analyses the problem and then annexes a draft Bill to remedy it. It is now permissible to look at the report to find the mischief and at the draft Bill to see that a provision in the draft was not included in the legislation enacted …..” Do you know I am getting rather hacked off with all the divergent county court judgements! I would have thought that looking at the Law Commission’s report & Second Reading of the Housing Bill (Act 2004) would beuseful in bringing the courts to a logical and consistant conclusion on tenancy deposits and s214(4) matters. Both Hansard and Law Commission reports are admissable due to the two House of Lords ( now Supreme Court) judgements :
Black Clawson International Ltd v. Papierwerke AG [1975] UKHL 2
Lord Reid
“….I think that we can take this(Law Commission) Report as accurately stating the ‘mischief ‘
and the law as it was then understood to be, and therefore we are fully
entitled to look at those parts of the Report which deal with those matters…..It has always been said to be important to consider the ” mischief”
which the Act was apparently intended to remedy. The word ” mischief ”
is traditional. I would expand it in this way. In addition to reading the
Act you look at the facts presumed to be known to Parliament when the
Bill which became the Act in question was before it, and you consider
whether there is disclosed some unsatisfactory state of affairs which Parlia-
ment can properly be supposed to have intended to remedy by the Act.
There is a presumption which can be stated in various ways. One is that
in the absence of any clear indication to the contrary Parliament can be
presumed not to have altered the common law farther than was necessary
to remedy the “mischief”. Of course it may and quite often does go
farther. But the principle is that it the enactment is ambiguous, that meaning
which relates the scope of the Act to the mischief should be taken rather
than a different or wider meaning which the contemporary situation did not
call for. “

Pepper (Inspector of Taxes) v Hart [1992] UKHL 3
LORD BROWNE-WILKINSON
“….In my judgement…reference to Parliamentary material should be
permitted as an aid to the construction of legislation which is
ambiguous or obscure or the literal meaning of which leads to an
absurdity. Even in such cases references in court to Parliamentary
material should only be permitted where such material clearly
discloses the mischief aimed at or the legislative intention lying
behind the ambiguous or obscure words….Take the normal Law Commission Report which
analyses the problem and then annexes a draft Bill to remedy it.
It is now permissible to look at the report to find the mischief
and at the draft Bill to see that a provision in the draft was not
included in the legislation enacted …..”

]]> By: michael paget http://nearlylegal.co.uk/blog/2009/11/tenancy-deposit-late-compliance-again/#comment-3060 michael paget Fri, 11 Dec 2009 11:31:15 +0000 http://nearlylegal.co.uk/blog/?p=3621#comment-3060 thanks - I thought I saw somewhere that a DJ should consider allocation when a Part 8 claim is disputed - but can't find it anywhere in rules now. thanks – I thought I saw somewhere that a DJ should consider allocation when a Part 8 claim is disputed – but can’t find it anywhere in rules now.

]]> By: Francis Davey http://nearlylegal.co.uk/blog/2009/11/tenancy-deposit-late-compliance-again/#comment-3059 Francis Davey Thu, 10 Dec 2009 20:40:48 +0000 http://nearlylegal.co.uk/blog/?p=3621#comment-3059 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)? 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)?

]]> By: NL http://nearlylegal.co.uk/blog/2009/11/tenancy-deposit-late-compliance-again/#comment-3058 NL Thu, 10 Dec 2009 14:52:42 +0000 http://nearlylegal.co.uk/blog/?p=3621#comment-3058 Part 8 claims are usually multi track by default, I believe. Part 8 claims are usually multi track by default, I believe.

]]> By: michael paget http://nearlylegal.co.uk/blog/2009/11/tenancy-deposit-late-compliance-again/#comment-3057 michael paget Thu, 10 Dec 2009 13:51:04 +0000 http://nearlylegal.co.uk/blog/?p=3621#comment-3057 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. 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.

]]> By: NL http://nearlylegal.co.uk/blog/2009/11/tenancy-deposit-late-compliance-again/#comment-3056 NL Wed, 11 Nov 2009 19:41:16 +0000 http://nearlylegal.co.uk/blog/?p=3621#comment-3056 Claims should be Part 8, certainly. Don't know about the CPR amendment. Maybe the 51st? Claims should be Part 8, certainly. Don’t know about the CPR amendment. Maybe the 51st?

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