We wanted to highlight a case we have dealt with recently, as a reminder to everyone to ‘get the evidence.’
We were recently instructed by a Solicitors firm to attend Court in Wigan, to act for a Landlord against a Tenant and a Guarantor who had failed to pay rent.
The Landlord was seeking to get possession of the house – evict the Tenant, and get a Court Order for the money.
We received the paperwork and instructions on Thursday for the Court hearing on the following Monday. We noticed there were some documents missing. (We knew this as there was a previous hearing on this case in April, but the court postponed it until June as there was an alleged agreement, and the Tenant had raised a defence in writing saying that the amount of rent arrears the Landlord was claiming was not correct.)
We requested the documents that we had noticed was missing (from our client and instructing Solictors). We also requested a copy of the defence, and the instructing Solictors who sent the papers said they had not received a copy of the defence – they hadn’t requested it and they had no further evidence.
This was a defence filed by a Tenant who had no legal representation.
The Tenant should have (under Court rules) sent a copy to the Claimant or their Solicitors, but didn’t because the Tenant didn’t know the Court rules.
We asked the Solicitors why they hadn’t requested a copy of the defence and the response was
“We didn’t have to; this was up to the Tenant to serve a copy.”
This was a completely unsatisfactory response.
We then looked at the Rent Arrears figures and, in this type of case when a Landlord is trying to get possession of the house, he/she must prove the rent is more than two months in arrears. If they cannot prove this then they must show that it is reasonable for the Court to grant a possession.
We questioned the instructing Solicitors, asking “Where is the evidence that this is reasonable?” and the unsatisfactory response was “We have already filed the evidence from the last hearing and no further evidence is needed.”
Well, that evidence is only as good as the last hearing!
This was a fresh hearing – requiring updated evidence.
It was likely that the evidence was going to be scrutinised to convince the judge whether it was reasonable for the Tenant to lose her home over the non-payment of rent. In the grand scheme of things the rent was less than two months in arrears and they had a Guarantor too.
So what is the moral of this post?
Here, they didn’t back up their claim and had no evidence as to why it was reasonable for the Tenant to be evicted. Luckily, we still won and we were able to make the relevant arguments to convince the judge to evict the Tenant and get the Guarantor to pay. But the moral is ‘get the evidence.’
In the Court hearing the Judge actually made reference to aspects of the Defence that we had not seen.
We were at this point totally unprepared for what was said, so had to listen carefully and think on our feet. We had asked for the evidence and documents previously, but those who instructed us didn’t ask for it (either from the Court or the Tenant). We were going in blind and it could have been much worse! It could have raised an issue that we weren’t prepared for.
One final thought – whoever you are and whoever you are instructing to attend Court hearings for you – make sure they have all the relevant information. Whether you are a solicitor instructing us to attend Court hearings, instructing a Barrister to attend Court hearings, or if you are unrepresented and asking someone to attend a Court hearing for you, it is vital that someone attends the court with ALL the information available.
Also, if you have notice of something that has been filed at court, it is up to you, if it hasn’t been sent to you, to request a copy.
Any questions or support with the above please email us at: [email protected] or phone 0151 230 8931.
