D (3:48)

So I mean, obviously there are some headline defences that form the basis for the starting point to see if there's a defence to Section 21, for example. So there's the legislation that we all sort of turn to on a day to day basis to find whether there might be a defence to a particular claim, section 21 or section 8 or other areas. I mean this book does only focus on Section 21 and the Section 8 rent arrears claims because to do everything would have just been too much. And the publishers, they've got, you know, they've got a word, sort of a word guideline for what they, what they want you to produce. And if you're going to go over it, you need to let them know. But I wasn't going, you know, I have actually gone over it a bit but if I was to introduce all the different types of possession proceedings, then first of all it would have taken me an awful lot longer and secondly, I'd have been significantly over their guideline word limit. So where did I start looking? I mean the usual places that we start looking when we're doing our day to day work. So the legislation, the judgments, so court judgments, the full text of court judgments were invaluable for working out defences and sort of working out the details of what those defences are. There's a lot of really good secondary literature which practitioners are very familiar with as well, such as the Defending Possession Proceedings book, which is something that I think we all turn to and rely on on many occasions. And that's absolutely fantastic resource to use. The Shelter legal website resource is also a fantastic resource to be able to refer to. And so there are resources that we, that we all use in our day to day practice and beyond that, LexisNexis resource as well. There are a lot of resources that we all use. And what I wanted to try and do was condense the things that I really needed to have at my fingertips on the court duty day into one place that I could just flick through and I could then have at my fingertips the defence, the possible responses to that defence at the claimant might raise. And crucially as well, I think on court duty, it's really important to be aware of what discretion the judge and the court has to deal with particular defences or to deal with other particular issues, because judges on the possession list, they may be extremely experienced on possession lists, or it might be their first day on the possession list. The claimant might be represented by somebody who's a very experienced housing barrister, or the claimant might be there as a litigant in person. And solicitors, we have obviously a duty to our client, but we also have a duty to the court. And the courts are often going to be looking to us to assist them in terms of, you know, sometimes matters of discretion, for example. So I felt it was really important to have that sort of information at my fingertips as well. So that's included in the book on. So on each section of the book, there's the defence, there's the possible responses a claimant might have to to a defence, and matters of the court's discretion in respect of that defence. So that's how I've tried to structure it and those are the types of resources that I relied on to be able to do that.

F (7:14)

Okay, thanks, Daniel. As you've mentioned, as you've mentioned, there can often be a range of issues tenants face in possession proceedings. What are some of the common challenges that you've noticed?

D (7:28)

Some common challenges that tenants face in possession proceedings? Yeah. So when tenants come to court on the day, they'll either be really well organized and they'll have all the papers with them, or they won't be. And sometimes, sometimes you might need to go and get the papers and borrow them from the claimant. So if the claimant's there, represented by a solicitor or a barrister, or even a litigant in person, you can usually go and ask them if they wouldn't mind having a look at the papers. Because where everything is so time constrained on court duty, I find that if you can identify some technical issue, some technical defence that can ideally get a claim struck out, or at the very least get a bit of time to allow the defendant to file the defence, that's sometimes all you can do because of the time constraint. So it's really important to be able to See the documents in front of you because you need to be having a look to see on the section 21 side. They are very technical claims and you need to see if everything is compliant in terms of gas safety certificates, deposit protection issues. How to Rent Guide, the version of the how to Rent Guide that's been served when it was served. And so you need to see the paperwork. And sometimes tenants who attend court just don't have the paperwork for you to see. So that's a challenge that you see sometimes need to address on the day. If you're able to find a sort of low hanging technical defence, try and go for the low hanging fruit to start with. And then if you get the opportunity for the defendant to file a defence, then some of the bigger issues then might come out once they have the opportunity to take legal advice in the cool light of day rather than the five minutes before their initial possession hearing, and then they can explore other defences as well. So I think technical defences are really a court duty adviser's friend. Some of the other issues that tenants attending court on the day of an initial possession hearing might face is they can sometimes attend court thinking that they've got one particular defence. But actually, you know, as the solicitor, that that defence doesn't apply in these circumstances. So something that often comes up is this idea of revenge evictions. And tenants often will come and they'll say, oh, I complained about some disrepair at the property and they've sent me a section 21 notice and they can't do that because I've read about revenge evictions and I know that's illegal. And then you need to explain to them that actually there are rules around revenge evictions and the local authority needs to get involved. Service of a particular type of notice, improvement notice or a notice of emergency remedial action needs to have been served. And without that, then the defence of revenge eviction isn't founded. So that can be a common misconception that tenants come in in respect of what they think their defence might be. If you then look at the papers, you might find that they have a different defence, or you might find that unfortunately they don't have a defence in that particular case. So that's another challenge. Tenants sometimes come thinking one thing and you then have to advise them, actually it's not quite that way and you need to explore other options with them. So that can be another challenge that tenants have that court duty advisors need to navigate on the day. I mean, sometimes it's simply a case of, you know, unfortunately, you can't avoid a possession order being made. And the challenge then is, is what, what can you do if you, if, if there's no way that you can avoid a possession order being made on the day which, which does happen despite all of our best efforts sometimes, what can you then do for your client in those circumstances? And the ability of the court to extend a possession order for up to six weeks in mandatory cases such as Section 21, you know, that's an important element in the court duties that. Duties, Duties list as arsenal as well. But it's quite a difficult, it's quite a difficult shield to wield because courts and some judges are very, very reluctant to make a finding of exceptional hardship. So that can be a challenge. And that's another of the things that I wanted to try and address in this book. This issue of some of these outlying issues such as when and how a court can make a finding of exceptional hardsh hardship. Also costs. So if a possession order is made, what's the situation on costs? I think that's another sort of semi outlying issue which can be quite difficult to navigate for a court duty solicitor. And I wanted to address those points in this book so that solicitors or whoever's on court duty can be best positioned to try and still work in their client's best interests, even if the inevitable possession order is actually being made on the day.

A (12:47)

Thanks for that, Daniel. Actually, to be fair, I'm gonna echo something that Rita said right at the beginning before I get into the question, which is we love your book. It is absolutely brilliant. It's been such a valuable resource and actually more than, well, Amandeep. I was lucky enough to actually go with his first day on court duty. And your book was there with us genuinely. And we relied on it because it's such an easy to navigate thing, is one of those things that if there's a potential defense or there's a potential thing, you might, you know, something doesn't look right in the pleadings or even if they look great, you sit there thinking, well, is that right? Can that be done? And your book is a really nice, almost like a flowcharty way of just going, well, actually if that's not done, there is a potential defense. And you. This is how you may wish to address it before a judge. It's a fantastic little reference. It's brilliant. And you know, thank you so much for preparing it. I know it took a long, long time and a lot of effort to do so. So, yeah, before I get into asking you anything. I just want to say a massive thank you for it. Going on to. Actually something you've just said a little while ago is about defenses and things you can raise. I think a lot of our listeners might not know, you know, the technicalities and the whole process of preparing a defense because it can be quite overwhelming at times. You know, can you give any insight of the process of preparing a defense and any sort of key documents or evidence people would, you know, had to them or they should look for when preparing one? Well, no, just, you know, like you said before, sometimes people do come to court and it's just, you know, they don't know themselves that may be under misconceptions or they're, you know, may just not be unsure of what they can do as well they can raise as a defense. You know, sometimes they come to court with like a short statement or they do complete the defense form, you know, to the best of their abilities, and sometimes they make a very good, you know, job of it. Is there anything that when they come to court, you think, look, definitely bring those along with you because it may help, you know, someone on duty or even a judge to look at it and go, actually, there is something here, you know, there is something that we could look at and, you know, the tenant should have an opportunity to properly defend this case. Is there anything that you would advise others to bring along with them?

D (14:54)

If the tenant is attending court and you're able to ascertain that there may be a disrepair counterclaim defence, Bring some evidence of it if at all possible. Bring some photographs, bring text messages showing that you've notified the landlord of the disrepair five years ago and they still haven't done anything about the massive hole in the roof. You know, bring, bring whatever evidence you've got that you can show the judge and, and you can say, look, we don't have a surveyor's report, but our instructions are that there are, there's terrible disrepair here and we've been given these photographs that clearly show there is terrible disrepair at this property. That's going to be really helpful. And it's, it's. And sometimes tenants come to court without anything and they, they just say, I've, I've got some. Got some disrepair. But it's really difficult to ascertain, you know, how, you know, the nature of the disrepair. And depending on the judge, it can be very difficult to persuade a judge that whatever is being complained about is sufficient for them to grant an adjournment for a defence and counterclaim to be Filed, especially when arrears are quite high. So bring evidence. If you're going to be relying on something, bring evidence, photographic text messages and so forth. Bring the claim bundle, if you can, bring the claim form, bring the particulars of claim, bring the Section 8 notice or the Section 21 notice. Bring your tenancy agreement, your first tenancy agreement and subsequent tenancy agreements. I know this is a lot of paperwork, but it really is, you know, there is. There can be so many defenses hiding in the paperwork that it's a really valuable thing for you to bring to your initial hearing when you see the court duty adviser.

F (16:45)

Regarding rent arrears. I've often noticed that landlords usually allow months of rent arrears to build before even commencing proceedings, so that they can rely on ground eight as well as grounds 10 and 11. What would be the best advice to give clients in that situation?

D (17:05)

Yeah, so our advice to tenants will always be, you're contractually obliged to pay your rent and whatever issues you are having, you still need to be paying your rent because otherwise there's going to be problems down the line that are created. So I think that's the advice that we'd always give to tenants. In terms of the point that you raised about landlords waiting a long time before beginning proceedings for the for renter is it's quite interesting because I follow quite a lot of landlord forums and Facebook groups and a lot of landlords believe incorrectly that they can only seek possession once there is more than two months renter is. A lot of landlords believe that. And I mean, there are a lot that know what the truth is that you can, you know, you don't have to wait for there to be significant levels of rent or is, but it's not, it's not a case of them waiting, you know, these ones who believe that it's not a case of them believing that it's going to be safer for them to wait until there's more than two months renter is because then they can rely on a mandatory ground. They simply don't realise that it's possible to seek possession when there's less than two months rent arrears. So I think that's quite an interesting misunderstanding. I think there is quite a lot of misunderstanding on that side of the fence as well in terms of what is and isn't possible and what the law is. Which is why it's really important for both tenants and landlords as well to seek legal advice if they want to go down the route of possession proceedings. I think Possession is such a complicated and changeable area of law that legal advice and getting professional support is something that's really important for both sides. I just wanted to raise that observation in response to your point about landlords waiting until they're a significant renter is. And I suppose another point to raise on that. Even if they don't wait until there are really significant rent, the delays in the courts, by the time it gets to a hearing, there probably is going to be really significant rent arrears anyway.

E (19:28)

I mean, everyone here is a court duty advisor. So I think between us, what do you all think is the biggest challenge when you do court duty? I mean, I find it so many people who want to be seen and it's a time constraint and I think it's like a conveyor belt sometimes, but. And sometimes I feel that I haven't given enough for a client in order to get the best outcome because of the time constraints. And it's, it's difficult, especially when the client cannot speak English or they don't have any documents. It's difficult to establish a defense and especially if you're given five minutes to, to prepare submissions to the judge. I think that was my biggest challenge. It still is, is my biggest challenge. I wish there was more time for court duty, but at the same time, I understand there's such a backlog with the courts that they're trying to get as many possession hearings heard. But I think if you do it that way, it can sometimes be quite detrimental to the clients, to the tenants, because they might not, you know, a court duty adviser in five minutes. What can they do in five minutes if the client can't speak English or they haven't bought any documents with them? You know, we could be missing essential defenses for them because we don't have, you know, the documents or, or seek, you know, full instructions, you know, so what, what do you think we, you know, what changes could be made or should be made in order to help these, you know, these tenants coming to court for the first time they come to court, they've probably never seen a courtroom before, don't know what to expect, probably watched too much American courtroom drama. Yeah, exactly. And, you know, what changes do we all think that should be made, especially with court duty?

G (21:17)

Yes, I mean, I echo the same thing as Manjinder has just said, it's normally the time constraint. And further to that, with some defendants, when they do come to the court, they don't come with their papers. There's language barrier issues and there's always A fear that as much as we might identify some of the legal issues, some key defenses may be missed out. So obviously, yeah, I mean, what, how would you say improvements can be made in regards to that? And further to that point, again, there are some misconceptions that I find that a lot of defendants do have, especially where they with withhold their rent, they don't want to pay their landlords. They think they have a legal right to do that. But again, are there any other sort of misconceptions you find that defendants have and when they come to for assistance from the Court Duty advisors, What, what

E (22:07)

trends are you all seeing in court in regards to possession claims? More. More renter is.

G (22:13)

Yeah, I think Section 21s are starting to. There's a lot of them now. Yeah, there's, there's a large bulk of them coming through and that might be to do with the changes that are going to be coming in the future when that is. That's a different question altogether. But yeah, there's, there's quite a backlog of them.

E (22:29)

Yeah, I'm, I'm finding a lot more landlords are serving Section 21 on probably in the fear that the, you know, the reforms bill is going to come through.

A (22:37)

And I actually did a really good podcast on that with Annabelle actually. Yeah, so that was good.

E (22:42)

Yeah, that was an interesting one. So I think we're probably going to see a lot more possession claims. I think in the next 12 to 18 months there's going to be a lot more possession claims and I think there's still a backlog from, from COVID Yeah. And I think people are. I mean the recent cases I've had is tenants are still being told by local authorities that they cannot help them with the homelessness applications until they receive a possession order. Which is, which. Yeah, which is incorrect. So they're staying in these properties which are unportable. And so landlords are left with no option but to issue possession proceedings. Then these tenants are then left with counter court judgment, which is unnecessary. So I think we're going to probably see a lot more of these possession claims in court. And just going back to your book, I think that would be very helpful for other advisors and other courts just to give them a quick guidance. And I think that's, I think that's the beauty of your book, Daniel. It's, it's, it's enough for Court Duty Advisor to have a quick look at the book, see what potential defenses that could be raised or potential questions that you could ask a tenant and it's enough probably for us to, to use in that five minutes we're given, if it's five minutes. So I think that's, it's, it's a, it's a good book to have for any court duty advisor. But even, it doesn't even, even, I think needs to be targeted at advisors. I think those who are seeing clients solicit, I think even solicitors, you know, because then you can progress onto that. Yeah, yeah, definitely, yeah.

A (24:13)

Like I said to Daniel when he first wrote it, this would be something that's like a staple in every, every judge should have it on their table and just. Have you read this or not yet?

E (24:22)

Yeah. Daniel, has anyone commented on your book apart at Duncan Lewis, your biggest fans?

D (24:30)

One time I was on court duty at Willesden. A claimant came in and she was from, I think a housing association or possibly a council. And obviously court duty is not there to assist claimants, but she had seen a copy of the book that I'd been referring to and she said, oh, what's that? And she had a quick look and she took a photograph of a couple of the pages. I didn't say, I didn't say it was my book. I just, I just, I just let her have a, have a flick through and. And she took, she took a couple of photographs because her case had finished by that point and so she was on her way, on her way home and she just came and said, oh, what's, what's that book? So, so, yeah, so she was, she was interested. You mentioned, you were mentioning a second ago about the different types of possession proceedings and more Section 21 notices at the moment and more renteriers claims at the moment. And I think I completely agree with what you said about, you know, a lot of landlords are concerned about losing Section 21 and whether or not that's the only or main reason for wanting to recover possession, or whether it's more because broader changes that may be coming about as a result of the renter reform bill and tax changes which just make it increasingly difficult to make a profit as a landlord. Whatever the reasons are, I think it's understandable that landlords are seeking possession a lot more on Section 21 at the moment. But if and when Section 21 is eventually abolished, what comes next? I mean, Section 8 comes next and I think most of the time if landlords are evicting under section 21, it's not for no, or often it's not for no reason. And certainly if we're advising Landlords, if they want to get possession, if they're able to rely on section 21, then that is the way to go. And you can go down the accelerated route for obtaining possession as well. If you've got all your ducks in a row, then you're going to get possession. And if you've got any ducks that are not quite in a row, you can more easily predict what the problems might be in your claim. So regardless of the real reason for seeking possession, I think a lot of landlords sensibly prefer section 21. But once that's gone, if the real reason is renter is, then we really are going to see a lot more claims for renterers. And one of the things that I speculate about what's going to happen is what's the effect of that going to be on people making homelessness applications? Because if a local authority is able to see that the real reason for possession is renteries, they're going to be almost certainly be making a finding of intentional homelessness. And at the moment, where the real reason is often hidden behind section 21, that can be more difficult for the local authority to work out. But if that changes and that real reason being rent arrears is out in the open from the very beginning, are we going to be seeing local authorities making far more findings of intentional homelessness because of that change? Is that going to be an unintended consequence of the end of Section 21? I don't know. But that's an interesting and worrying possible progression that'll come out of Section 21 being a bond.

C (28:13)

The more and more claims you have, and then local authorities being involved and making findings of intentionality, the issue is going to be that the courts are stretched, local authorities are stretched, funding is being cut, you know, it's. Tenants are going to be implicated in all of this. So where'd you go? How do you resolve that?

A (28:35)

It's something that Annabelle said.

C (28:37)

Yeah.

A (28:37)

In her view of the Ventures Reform Bill as well. It's on paper it looks great getting within section 21 for tenants, but there's got. There is a second edge to that that, you know, if a landlord is almost trying to justify trying to get their property back, they're looking for a reason. And you know, if when someone does make a homeless application, or should they need to make a homeless application, if there is a reason why a land was sought, a return of the property, you know, local authorities, quite rightly so, will say, well, you know, it's not a no, as no fault as you Say it is there was a reason, you know, the landlord wanted the property back, which is a breach of tenancy. And like you said, rightly as well, Daniel, landlords, as long as they, you know, if they follow the correct procedure, they shouldn't be stopped from getting their, their properties back either. So it's a really difficult one. Section 21 does have its flaws, but they're flaws that we all kind of know and getting rid of it opens doors. We just don't know where, you know, where they lead to at this stage.

E (29:31)

Earlier on, we discussed what tenants should do before they attend their first possession hearing. I think one of the most frequent questions I always get asked by tenants is how long is this going to take? So how long is a piece of string? It all depends on, on the courts really when it comes to possession claims. I also think it's really important to tell anyone who's listening, who is in a position where they received a court order is don't ignore it or they received court pleadings claim form for possession is do not ignore that claim. Seek some legal advice, contact your local solicitors, attend your cabs, obviously contact Duncan Lewis is to get some advice earlier on. And I think a lot of tenants believe they may not be eligible for free legal advice, but there is a lot available. There's legal aid still available for possession claims, obviously, if you satisfy the criteria. But there's also schemes available where court duty advisers can give early advice before they attend the first hearing. And I think it's really important that people are aware of this and I don't think many people are because they do not know exactly what they need to do, do and, you know, some of them don't even turn up to court thinking they've, you know, they've got no chance in defending a claim because the landlord might be, you know, a big company, a local authority or landlord, a lot more, more money than them. So I think it's really important that we do let people know if there is, if they do receive a claim form for possession is to seek legal advice immediately because there are ways to avoid going to court. You know, you could, your, your legal adviser, your solicitors could negotiate with your landlord to avoid you, you know, attending court or avoid you incurring any costs. But also, you know, as I said earlier, legal aid is available and I think, you know, you don't need to be on, on state benefits to be eligible for legal aid. You can be on a lower income. So, and I think this message across with legal aid, when people Say, you know, oh, you know, do you have, do you do legal aid or. Only those people who are on benefits is eligible for legal aid. This, this is not true. And I think it's important that we do, you know, inform people of that as well because I've come across a few tenants who've attended court duty believing they cannot even see a court duty advisor because they will have to pay for it. And I think it's really important that we, you know, we inform people that, you know, it's free legal advice, they do not need to pay and we're not going to do a means tested, it's not mean tested, you know, a service. And it, and some of them are too scared to seek advice in court. I find, and I think it's really important, even if they spend a few minutes with a court duty advisor, they probably know a lot more about their rights than them just going, you know, blindly into court, not knowing what to do. And it can be daunting. If you've never been to court before, it can be daunting. And especially you see all these lawyers, you see the judge, you know, and some tenants will agree to something that they know they cannot keep up.

C (32:54)

It happens a lot.

E (32:55)

Yeah, they will agree to a suspended possession on terms that they'll pay certain amount of money per month knowing they cannot afford that just to get rid of this claim for possession. So it's really important that you do seek legal advice and only make proposals that you can maintain and keep up with. And I think that's really important that we portray that out there to people who are encountering or received a claim form is, you know, seek legal advice and, and yes, and do attend call.

C (33:27)

Absolutely. Mangina, you are right to follow on to what you've basically said. I have had that quite a few times. I've had clients who come into the courtroom, into our discussion room and literally just broken down in tears because they've just buried their head in their sand. They've not really thought about what's available to them. Literally, you know, there's so much that can be done to help tenants out from an early stage and because they just thought, you know, rent arrears is continuing to accrue, I've lost my job, they've just not responded to the landlord or they just thought it's going to go away. But really and truly, things like this, they don't just go away. And losing your home, it's nothing, you know, small. It's a really serious, life changing situation. And us Being there to help you, it's where all we can do is try our best to prevent that from happening. There may be circumstances where it's unavoidable, but there are further options available to you. So it's always, always best for 10 to consider what's going on. Try and get as much help as possible there. Even if you're afraid to approach solicitors, there are charities that help with benefit with debts and benefits and just places like citizen advice, you know, it's always available. It's just tenants really have to do a little bit just to help themselves before others can help them.

D (34:57)

Yeah. And on exactly that point that you've just made, the benefits of early legal advice, you alluded to it yourself, it benefits the entire system and you mentioned liscans in person. But also just the very fact of cases reaching court in the first place, early legal advice may result and can result and does result in hopeless cases not even reaching court in the first place. So that benefits not only the tenant, it benefits the landlord as well. If they have a totally hopeless case, it's better for the landlord that it gets, they don't pursue it to court and it's better for the court if it doesn't come before them. So the more tenants are able to access early legal advice, potentially that'll result in fewer hopeless claims getting to court in the first place. Because we all get quite a few claims that are then struck out in this first initial hearing. And really, if something is so easy to strike out, it probably shouldn't have made it to court in the first place. And if the provision for early legal advice was more available, better funded, more solicitors were doing it and tenants accessed those support networks as well, then the benefit would benefit the entire system and the entire sort of structure of litigation. I think.

E (36:29)

Yes. And I think the other issue is there are not many legal aid firms, and that all comes down to what we've discussed so many times, is the legal aid rates. It's. It's not commercially viable for some firms to do legal aid rates and even court duty rates, you know, it's. So it's difficult to perhaps for tenants to instruct a legal aid firm because, you know, paying privately can be very expensive and if you're in rent a, it would be better to pay your rent than to pay a lawyer, perhaps. I do not know, but I think changes need to be made to the legal aid rates and I think them changes perhaps would benefit a lot of these tenants who are suffering from possession claim disrepair claims, who need legal advice. Because I think the lack of legal advice perhaps is also a problem for the courts because they are then dealing with litigants in person, which we all know can be quite challenging, especially when landlords are representing themselves as well. And that can be quite challenging for us when we're representing tenants. So I think a lot of changes need to be made and I think there's something the government needs to think about long and hard if they want to make changes and prevent people becoming homeless, prevent possession claims. I think there needs to be changes in the bigger picture is if they do want legal aid lawyers to help people, but not just legal aid lawyers, lawyers to help people, there needs to be changes that needs to be made. Yeah, we're, you know, Duncan Lewis, we're lucky enough to have the Housing Loss Prevention Advice Service, which does, you know, clients, tenants do call us earlier on before the possession claims, but I'm finding that less and less people are contacting us because again, going back to what I said earlier, they're burying their head in the sand because they assumed that's not available to them or I don't think there's enough out there to let tenants know that they can contact firms like us who do provide early legal advice in order to assist them before the hearing. But I think this has been such an interesting conversation about court duty and possession claims that we will deal with because we deal with it on a daily basis, really.

B (38:59)

Daniel, finally.

D (38:59)

Hi there.

B (39:00)

Are there any future additions or updates planned for your court duty book that will reflect changes in housing law or that will address any new developments in depending tenants in possession lists?

D (39:16)

There aren't currently any plans, but it is, it is something that I've. That I've had in the back of my mind, but I haven't had any conversations with anyone about that yet.

B (39:25)

Well, Daniel, thank you very much for your time this afternoon. It's been really, really interesting. I think we've all enjoyed it and we hope to have you on again perhaps in the not too distant future.

E (39:37)

Thank you, Daniel.

G (39:38)

Thank you, Daniel.

B (39:40)

Thank you very much for tuning in. We hope you join us again in the near future for another episode.

A (39:46)

Thank you so much.

E (39:47)

Thank you, Daniel.

B (39:48)

Thank you. Thank you.

A (39:50)

Thank you.

F (39:51)

Thanks, Daniel.