I was a bit startled to learn from a loyal Landlord Law Blog reader recently, that quite a few people on landlord forums (such as the LandlordZone forum) have been complaining about Judge error.
Specifically Judges chucking out cases on the basis that the section 21 notice is wrong because it does not give the last day of a period of the tenancy as the expiry date (required for periodic tenancies under s21(4)), when in fact the the notice was served during a fixed term when this requirement does not apply (s21(1)).
The landlord then has to apply to reinstate the proceedings (form N244) which costs him £80. Needless to say they are pretty upset at this additional delay and cost when their claim was in fact completely correct from the start.
Indeed this sort of Judge’s error could prove extremely expensive for landlords whose tenants are not paying rent, as it will probably mean an extra couple of months rent lost before they can recover possession and re-let to a paying tenant.
Pre-empting letter
My suggestion for landlords acting in person, to prevent this happening, is to do a covering letter with the application form (which needs to be sent by post as you cannot use PCOL for the accelerated procedure) just pointing out that the notice is served pursuant to s21(1) and that therefore the notice does not need to end at the end of a period of the tenancy.
It is a bit much though to expect landlords to have to pre-empt Judge error in this way!
Requesting a review by letter
My other thought is that if the Judge is plainly wrong, can they request the court to refer the case back to the Judge WITHOUT applying under N244 and paying the fee?
I can remember at least one case in the past where I have asked (by letter) for a case to be referred back to the Judge when they got things wrong. This was done and the order was then rectified. This was quite a few years ago though and maybe courts are now refusing to do this.
It is a pretty unsatisfactory state of affairs anyway. Have you had this problem? I wonder how widespread it really is.
I’m surprised by that too Tessa. Maybe I just get good judges.
On a couple of occasions I have simply asked the judge for permission to appeal their decision. In both cases we had to go down to the listings office and pay for a new hearing but also in both cases we were in front of another judge the same day.
Maybe a good point to add to your landlord law course – make sure the judge understands the service requirement and bring the relevant section to the judge’s attention if they get it wrong. People often think they cant chalenge a judge’s decision in court. You can but you have to do it respectfully and profesionally. I know….I have the scars from the days before I learnt that!
The trouble is Ben, for the accelerated procedure you are not there. The Judge makes the decision on the paperwork without a hearing.
So the landlord does not have an opportunity to say “Er, excuse me, that notice was served under s21(1)”.
Which makes it all the more unfair.
On requesting it by letter, technically a final order can’t be changed that way. A letter will only do for requesting correction of an error under the ‘slip rule’ CPR 40.12 which is for typos and such like. While such a judgment may be wrong, it is not an error for CPR 40.12.
I agree with both! Technically, yes, once an order is made that finally disposes of the case, that cannot be recalled by the Judge. But I have seen it done (not that often, I’m pleased to say) and my view is that if the right outcome is reached with the minimum of costs and no prejudice to the other side, what harm is done? It must be worth a try anyway – and hopefully you are providing free training for the judiciary while you’re at it.
Thank you both for your comments. The trouble is I suppose, that it is far less likely to happen to us, as Judges will presumably check a bit more carefully if a solicitor or barrister has drafted up the paperwork.
I agree 100% with the idea that things should be done with minimum cost and bother. However I worry that Courts will be under pressure to increase court fee income as much as possible, so will be less flexible about things than they were.
Whilst there is no excuse for county court judges confusing the requirements of section 21(1) with those of section 21(4), the real culprit is section 21 itself which is a complete pig’s ear. Why have different lengths of notice? Why the need to specify the end of a tenancy period in a section 21(4) notice when the notice does not bring the tenancy to an end? In a section 21(4) notice you need to refer to the section, but in a section 21(1) notice you do not. And so on. Needs an overhaul.
@Lawcruncher Very true. Practically everyone in the property and legal business has been saying that for years.
The Law Commission recommended this be changed in their 2006 Renting Homes report but nothing was done about it.
“if the Judge is plainly wrong” then you “reinstate the proceedings (form N244)” prove that you was right in first place and ask for a refund of monies for N244. No?
Seems logical to me, if they will that’s a different question.
But I am replying because, You said “you cannot use PCOL for the accelerated procedure”, not at all? for Accelerated you have to use “snail mail” and not on-line?
I once had counsel describe the drafting of the HA 1988 as ‘opaque’.
On my earlier comment………….I feel such a fool. Enthusiasm got the better of me:)
But yes. I have never understood the daft difference between the 2 section 21s. If you hold them up side by side they look identical, apart from the small print at the top.
There are rarely problems with a 21 (1) b;, only the 21 (4) a:.
Is there a sound legal reasons why there are extra requirements for S21s on a periodic tenancy Tessa?
The difference between the two figures will give you the amount of your delay, and a comparison between that delay and the planned amount of time will lead you to the percent delay.