According to the guidelines for small claims, the judge can deal with the claim in the claimant's absence provided the she has submitted full details - she has, many times over. She has submitted the claim, a witness statement, and extensive annexes of supporting original documents. Moreover, part of the claim relates to the fact that the landlord didn't register her deposit, which is a mandatory requirement carrying a fixed penalty of three times the deposit.
I can tell you what the problem is. And it is quite simply that the courtstake a dim view of someone who issue proceedings and then does not turn up incourt, expecting the court to deal with it in their absence. It doesn't matterwhere she is living. It is as simple as that. Yes, the court does have thediscretion to deal with it in a claimant's defendant's absence, but that isusually reserved for a default or summary judgement if a defendant fails tofeature in court.
I am afraid that she is faced with instructing solicitors and paying thecosts. She will not get those costs back even if she wins.
I will also tell you that the courts are very reluctant to enforce thisthree times the deposit penalty because it is seen as being a windfall by thetenant and also seen as being punitive to a landlord. It is a long establisheddoctrine in English law that civil law is not punitive, but merely puts theclaimant back into the possession they would have been had whatever happened,not occurred. The best she could hope for. Therefore, is the return of thedeposit.
The courts also take the view that although legislation changed last yearto make a 30 day period for protecting the deposit mandatory, that even if itis protected or late, the claimant has suffered no loss and therefore is onlyentitled to the return of the deposit and no extra.
If she were asking me the question as to whether she should instigateproceedings to recover the deposit. I would tell her to go for it but don'texpect to get any more than the normal deposit that she would be entitled to inany event, unless the landlord has never ever (even at the time of issuingproceedings) protected the deposit.
I would also tell her that if she was not able to attend court or instructsolicitors, don't bother wasting the court fee
I appreciate that this is not the answer you wanted, in all probability,but there is no point in me misleading you.
Can I help further?
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Thanks for that. It would appear, therefore, that the Notes for Guidance on Small Claims are misleading because nowhere does it state that courts have the discretion to 'take a dim view' on non-attendance. On the contrary, the notes make specific provision for non-attendance. It also sucks that the courts don't actually give the reason for striking out the case, other than to cite 'non-compliance with 27.9' - she DID comply. I think a letter to my MP is called for. The whole point of the small claims procedure is to enable laypersons to mount claims without the need for solicitors. Thank you for your advice.
"Dim view" (my words of course) comes under discretion to deal in claimants absence. They have exercised discretion and decided not to. They dont have to give a reason.
I know how you feel but if a claimant doesnt attend, they cannot be cross examined in anyone (judge or claimant) has questions they wish to pose.
TBH I would be very surprised if she had got judgement after non attendance.
The letter to yr MP might make you feel better. I would save the stamp. Sorry.