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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10915
Experience:  Solicitor with 5+ years experience
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I need some advice about a skeleton argument to go in front

Customer Question

I need some advice about a skeleton argument to go in front of county court judge by my ex-tenants solicitor, which argues that despite me returning their deposit in full an final settlement in May, I am still obliged to pay tenants a penalty of 1-3 times the deposit amount as I failed to protect their deposit in a required time frame within an authorised scheme. They argue that reading section 32 of the Deregulation Bill 2015, the court has to order me to pay penalty, despite returning deposit.
Submitted: 1 year ago.
Category: Law
Expert:  Ash replied 1 year ago.
Hello my name is ***** ***** I will help you.
What is it you would like to know?
Customer: replied 1 year ago.

Hi Alex and thank you.

I am wondering if this is the right way to approach my problem and I would not mind if you tell me that it is not.

I need help with formulating a response to the skeleton argument presented by my ex-tenants legal team, if a defence can be identified..

did you read what I wrote earlier in the brief to my problem and do you have access to the advice I was given earlier by joshua from Just Answer?

eugene

Expert:  Ash replied 1 year ago.
Is there a court judgment?
Customer: replied 1 year ago.

No court judgement.

We had a directions hearing and judge was not convinced of claimants case and adjourned with permission to restore. he ordered to file and serve skeleton arguement setting out their authority in support of their claim for the proposition that the court may order a penalty when the deposit has been repiad in full prior to the issue of the claim. I have that skeleton argument and they also cite [2014} EWHC 4729 (QB) , case no QB/2013/0671, Okadigbo vs Chan

Expert:  Ash replied 1 year ago.
If you are asking that you are liable for x3 the deposit, then the answer is yes.
This is because you should have protected the deposit and if you do it retrospective then you are liable. Even if you later protect it you are liable for x3.
The law is that even if the deposit has been paid in full and you didnt protect it, you are still facing x3.
I am sorry if this is not the answer you want and certainly not the one I want to give you, but I have a duty to be honest.
Can I clarify anything for you about this today please?
Alex
Customer: replied 1 year ago.

Dear Alex,

thank you for your advice. Would the correct answer have been 'for up to x3 the deposit' or are you firm on advising that it is 'x3 the deposit'?

Would it be a defence that they factually did not pay me a deposit on moving in, but increased their ordinary rent payemtns over the first 2-3 months and that thus, I was not able to pay into a deposit scheme at the beginning and ahere to the stipulation of the deposit protection scheme...?

I returned the deposit in full and final settlement and advised that if they did not agree to return the deposit to me. They did not return the deposit, which I took as settlement of the claim. Their solicitors approached me afterwards. Can I now ask court to take into consideration the extensive repair and cleaning cost that I incurred on them moving out, but which I excluded for the final offer to them. Would the fact they did not allow me to show new tenants around and that thus I had a loss of income due to flat consequently not being occupied until I found new tenants, weigh in in any way?

Any other mitigating factors that you can think of in order to keep penalty at x1? Pointing out that penalty is disproportionate and that tenants seemingly motivated by opportunism and greed...?

Expert:  Ash replied 1 year ago.
It is x3 the deposit, that is what the law says, it does not say up to x3 deposit.
It would not be a defence no as you could have paid in partial amounts and protected as you go. If they accepted the return in full and final settlement then potentially you have an argument there.
You could raise repair but you would have to bring a counter claim for that. Sadly the law is very clear, the penalty is x3 the deposit for failing to protect it at all.
I am sorry.
Alex
Customer: replied 1 year ago.

Dear Alex,

Thank you.

How do I bring a counter claim into play?

The Housing Act was amended by virtue of section 184 of the Localism Act 2011 and with amendments came in force on 6th April 2012. It gives the court discretion from the mandatory 3 times to a discretionary penalty of between 1 and 3 times the deposit. Would you please check if you now revise your original advice on penalty .

I am told that the only discretion is the amount of the penalty.

eugene

Expert:  Ash replied 1 year ago.
You need to file a defence and then issue a counter claim.
Case law shows its x3.
Does that clarify?
Alex
Expert:  Ash replied 1 year ago.
Hi
I am just following up to see if there is anything else I can help with?
If you have not done so already might I ask you to rate my answer before you go today please, the button should be at the bottom of the screen.
If you need more help please click reply.
Alex
Expert:  Ash replied 1 year ago.
Hi
I am just following up to see if there is anything else I can help with?
If you have not done so already might I ask you to rate my answer before you go today please, the button should be at the bottom of the screen.
If you need more help please click reply.
Alex
Customer: replied 1 year ago.

Alex,

I do think that you have not got the full measure of the Housing Act sections 213, 214, 215 which were amended by virtue of section 184 of the Localism Act 2011, coming into force on 6th April 2012. it gave the court discretion as to the penalty it could order form the mandatory 3 times to discretionary penalty of between 1-3 times.

Please advise why I am wrong and you are right.

My question is, can you see any reason why court has discretion not to order penalty?

Would it be a defence that deposit actually had not been paid? Deposit payment has not been evidenced.

I only repaid 'deposit' , as I wanted the matter closed. I thus offered 'deposit' (even thought not received) in full and final settlement of any claim, which they accepted and did not return to me. Claim was subsequent and seem to be motivated by opportunism rather than any sense of injustice.

Thank you

the only other thi

Expert:  Ash replied 1 year ago.
I am aware the Court has a discretion as the Housing Act was amended. All I am saying is whilst the Court has a discretion case law shows Judges regularly award x3 the amount.
Does that clarify? I did not say it was mandatory but case law shows they do award x3.
Does the Court have a discretion not to order any penalty - yes.
If there was no deposit paid and therefore no evidence then yes, that is a defence.
Does that clarify?
Alex
Expert:  Ash replied 1 year ago.
If this answers your question could I invite you rate my answer before you leave today.
If the system won’t let you please click reply.
Please bookmark my profile if you wish for future help: http://www.justanswer.co.uk/law/expert-alexwatts/

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