Part 8 Procedure In Court

[clemfandango]

Hi everyone,
This is a new post as have now realised that the claimant is using a part 8 procedure (alternative procedure for claims, form N208) for non-return of deposit + 3 times deposit as penalty. I have some questions which I would be very greatful if someone could help me with:

• Is there anyway of extending the amount of time I have to reply from 14 days? I am currently overseas. I know that with a “normal” claim if the defendant files an acknowledgment of this is extended to 28 days

• This is not a straightforward case, I wish to defend my case with regards to the deposit and also make a counterclaim with regards to the massive damage they did to my property. I am really not sure how to do this even with the guidance notes. I can’t see any place for counterclaim / defence.

• Should I use section D – objecting to use of procedure because I can’t defend or counterclaim with part 8? Or should I just bring about a separate small claim with them? Although this seems a strange way to go about it as it is all interlinked.

• How can I return the acknowledgement? Will the court accept an email of the forms usually? It takes three weeks for post to get to the UK from here.

• The deposit was in two names but the claim is in one name plus “one other person”. Shouldn’t they both be named in the claim and sign the form?

• Section E – written evidence. Does this mean if I ONLY wish to use written evidence and not appear to defend myself? Or if I wish to use any form of written evidence? It says I must send in written evidence with the form or 14 days later if the other party agrees. Can I add other evidence further down the line? It will certainly take me longer than the next week to gather everything that I will need.

Many thanks in advance! Part 8 seems much more complex than the normal route.

[bednobs]

blimey, are you living on a pacific island somewhere? If hetting the post is a problem, can't you get the person who is collecting your post in hte uk to open, scan and email you? then the same in reverse?

[Peter Pedant]

I not sure if any of the usual suspects have used part 8
There i is a barrister who intermittently calls in ( Barmaid )

Part 8 procedure is here

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

and yes thre are all sorts of things

to be used if there is little dispute of fact - in your case there is
( 2a)

cant get a default judgement part 5

and that is only the first part

You now have the claim and claim number
and write a defence according to the rules

and also apply for part 8 to be disallowed ( the judge can direct all sorts of things including the normal track )

use Fax if you can

and yes one of my tenants did email a defence and it was accepted but I wouldl relyon it and send a Royal Mail copy as well

The last time I did this the judge said the claim/defence had to be in the form of a witness statement - the form is here
https://www.justice.gov.uk/courts/procedure-rules/civil/standard-directions/general/witness-statements

and yes I agree that your claimant seems to be trying it on
( I think trying to get a default judgement because he knows you are in Timbuktu )

[Peter Pedant]

I mean your real problem is that you are trying to a landlord whilst orbiting the moon - bad career move

and no I wouldnt dream of trying to defend by writing only
but that is of course in the future

it is always a massacre when only one party turns up
( judge invites himm to prove his case and gives judgement)
if there is a hearing and the judge gives judgement this can only be set aside on a point of law and nothing else so be carefful

[EDDIE51]

can you get the person at your UK address to take a mobile phone photo of the documents and send it to you?
Then you will know the case number and could fax a reply to the court.

[Peter Pedant]

oh is the deposit in a deposit scheme ? v v impt

[Buenchico]

Some more information about the background to the case would be useful, Clemfandango.

However the law is remarkably straightforward. If you accepted a tenancy deposit (in respect of a tenancy commencing on or after 6th April 2007), and failed to pay it into an authorised deposit scheme, then a court must either order that the sum should now be paid into such a scheme or order that the deposit be returned to the tenant. (Given that your post would seem to imply that the tenancy has now ended, only the second option would be available to the court).
[Housing Act 2004, Section 214 (3)]

Upon making such a ruling, the court MUST also order the landlord to pay the tenant a sum equal to three times the deposit.
[Housing Act 2004, Section 214 (4)]

http://www.legislation.gov.uk/ukpga/2004/34/part/6/chapter/4

So, if you failed to pay a tenancy deposit into a relevant scheme, you'll be wasting your time by seeking to defend the action. That applies even if the tenant totally wrecked the property, to such an extent that it had to be demolished. You have no right to retain any part of the deposit in respect of such damage; you must issue a formal demand for compensation from the tenant and then, if that fails, commence a totally separate court action. (You can't 'counter claim' under the existing action).

[clemfandango]

Hi guys, cheers for the replies. I did put the deposit in a scheme for first 12 months all fine then tenants stayed extra 6 weeks and I had a lot of issues with the deposit scheme and to cut a long story short, it wasn't protected for final few weeks of the statutory tenancy.

I thought the rule was the court could order BETWEEN 1 and 3 times the deposit as a penalty. Does it now have to be three times the deposit? And does this have to be paid within 14 days or a get a court judgement???

[Buenchico]

I have to admit, Clemfandango, that I also thought that it was up to three times the value of the deposit. However upon, checking the legislation, I find that it actually states:
"The court must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order".
[See my link above].

[Peter Pedant]

oo er I can see why he is using part 8

I am not sure the facts on the deposit can be denied
above my pay scale I am afraid

as a LL I dont take deposits but I didnt understand why exactly until I joined in this

[Peter Pedant]

No the 14 d rule is for the defence
I would still submit one

even if it is late it will be accepted ( in the interests of joostice )
unless the claimant has applied for default judgement .....

which on my reading on Part 8 - he cant

and no I am not a lawyer nor a barrister

[clemfandango]

Thank you so much everyone, it seems very hard to find part 8 info online, unlike "ordinary" small claims stuff.

I was interested that you cant get a default judgement! So what does this mean? What happens if I don't return anything? Or if I am late?? If the claimant knows my overseas address are they allowed to serve papers to my old UK address???

I am very confused about the 3 x penalty as I have read in lots of places that it is 1-3x. Unless there is a sliding scale how can it be fair? So someone that willingly says screw you I am not protecting your deposit gets the same penalty as someone who had tons of problems and the deposit was only unprotected for 3% of the tenancy? Or a repeat offender? Have the rules recently changed as am sure it was 1-3x??

[clemfandango]

OK, so it is 1-3x apenalty as the housing act was updated with the localisation act.

Does anyone know how it works with the part 8 and there being no default judgements?? If that is the case surely everyone who receives a part 8 claim could just ignore it?!

[Peter Pedant]

the short answer is that none of us have done a part 8
so we dont know

I imagine there is a hearing and if that is unattended the claimant is invitd to prove his case and judgement given
[this hjappened for an eviction I was dragged thro]