A Warning – Conduct of Litigation Matters
22 November 2018 by Guest Author
A recent case, Imram Kassam –v- Karjit Gill and Jagbir Gill (unreported) heard by the County Court in Birmingham on appeal, highlights the importance of getting suitably qualified legal professional to act on your behalf in the conduct of litigation.
The case concerned a claim for possession of a property rented to the Defendant, Mr Kassam, under the terms of an assured shorthold tenancy. By the date of the final hearing, the tenant had accrued £13,396.49 of arrears. The Claimant had instructed an enterprise known as “Remove a Tenant” (“RaT”). That business was not a firm of solicitors but had been set up to provide “services to Landlords who wish to obtain possession of their property.” Nonetheless, RaT drafted a section 8 notice for the Claimant, claiming possession under ground 8, 10 and 11 of the Housing Act 1988 Schedule 2. Following the expiry of the notice, RaT issued proceedings on behalf of the Claimant and obtained a possession order on 28 June 2018.
The appeal was to determine three issues. The first, whether the Claim Form, which had been completed by RaT and a statement of truth box ticked by the Claimant, was valid. Secondly, whether RaT was “conducting” litigation, which is a criminal offence for anyone other than a trained, insured and regulated firm of solicitors. Finally, whether the claim was an abuse of process as a result of the above.
Possession claims bought under Ground 8 are now issued online via the Possession Claims Online Portal. Signing the statement of truth confirming the accuracy of the contents of the Claim Form is a serious undertaking. The use of electronic forms creates complications. The PCOL forms contain a simple tick box rather than a signature box. The information submitted at the beginning of the electronic form is used to populate the information at the end of the form.
In this case, RaT filled in the Claimant’s name and the rest of the details contained within the form. RaT then gave the Claimants an opportunity to check the accuracy of the form and the Claimant then ticked the statement of truth before the claim was submitted by RaT, who also paid the Court Fee. The practice direction contained in the Civil Procedure Rules, which deals with statements of truth, provides that “Any provision of the CPR which requires a document to be signed by a person is satisfied by that person entering his name on an online form.”
On the first question, it was found that, although the Claimant had ticked the box himself, the details which populated the statement of truth had been entered by RaT; therefore the Claimant could not be said to have applied his signature personally. The judge did not, however, find that this was fatal to the Claim.
On the second question, the Court found that RaT had “providing advice, drafting the proceedings, paying the issue fee, preparing a witness statement and certificates of service, preparing a hearing bundle and serving it on the Defendant and the Court, making arrangements (through properly qualified solicitors) for an advocate to represent the Claimants, paying for that service, and corresponding with the other party (albeit briefly).” This went beyond the provision of reasonable assistance and amounted to conduct of litigation. As this was a criminal offence, the court could only apply a restrictive interpretation.
On the third question, it was held that the Court could not be expected to give legal effect to a criminal act (i.e. RaT’s conduct of litigation) and that the Claim should be set aside (albeit not struck out). The Court held that it was not just or proportionate to deprive the Claimants of their judgment where they had not committed any wrong. The claim was allowed to continue, albeit, the Claimant’s claim under ground 8 was not due to errors within the section 8 notice.
The exercise was an expensive mistake for the Claimant. Not only did they have to foot the cost of the initial application but in defending the Defendant’s appeal, there was also a recommendation by the judge that they pay the Defendant’s costs. Further, the Defendant’s counterclaim for disrepair and failure to protect the deposit was allowed to continue and the Claimant was left to argue discretionary ground 10, that some rent was lawfully due from the tenant, and 11, that the tenant had persistently delayed in paying rent when it was lawfully due. These are grounds that are less likely to result in the successful eviction of a tenant.
The lesson is clear. If you require to take possession proceedings against a Tenant, instruct a suitably qualified Solicitor to do so on your behalf.
Fisher Jones Greenwood offers a free initial appointment on Wednesday mornings at its Chelmsford office. For details please call 01206 700113 or email [email protected] to speak to our litigation team secretaries who will take some detail from you and arrange an appointment. Alternatively, our team would be happy to book an appointment with one of our qualified solicitors to discuss your matter.
Credit – blog post written by Lawrence Adams.