Carry on at the courthouse

One of my smaller, lower-value cases recently flared up. It was rather like the persistent, dull toothache, which I imagine prefaces an abscess. It concerns a property management business based in the North West, which was appointed by a private landlord from London to manage a house that she rents out in Preston. Once installed, the tenant persistently failed to pay her rent and allegedly kept several pets without the landlord's permission. The landlord ultimately had to evict the tenant and pursued her through the courts for the unpaid rent plus compensation for damage to the house, cleaning and redecoration costs.

You may be wondering why, as a professional negligence solicitor, I am involved in this case. In short, the tenant was apparently sacked from her job for stealing, and now exists on benefits. This means that the judgment that the landlord obtained against her is not worth the paper it's written on. Rather than stop there, the landlord looked around for another route via which she might recoup her losses and came up with my client, the property manager.

The landlord is acting in person, which in this case shows in the confused particulars of claim. My client drafted the defence itself, before we were appointed, and did a good job of trying to distil some coherent allegations from the particulars before parrying them.

London calling

When the allocation questionnaires went in, my still unrepresented client did not appreciate that it could have asked for the case to be moved from the outer London court in which it was issued to the North West, as is the defendant's privilege.

The first issue we were asked to address on instruction was, therefore, the transfer of the case up to Manchester. We issued an application immediately and argued that, as per its allocation questionnaire, our client would be calling four witnesses as opposed to the landlord who would be giving her evidence alone. It would thus be much more convenient if the case was heard up north. At the hearing, the London judge was not on our side. His sympathy was with the litigant in person rather than the legally represented limited company, and the case remained in London.

In January, just a few weeks before the matter had been listed for trial in the small claims court, we were instructed to issue another transfer application as one of our client's witnesses had deep vein thrombosis and had been advised against travelling to London. Armed with a doctor's letter, we tried again. The landlord was positively venomous '“ telling me over the phone that she thought our behaviour was 'a disgrace'.

I believe that the London court (which shall remain nameless, for reasons that will shortly become abundantly clear) must be pretty busy, as we weren't given a hearing date until just three working days before the trial itself. Against that background, a transfer application was never going to go well. To add insult to injury the hearing was listed on a Friday afternoon, and I don't work on Fridays. Asking one of my colleagues to cover the hearing for me would, however, have been a hospital pass of mammoth proportions so I went ahead from the comfort of my own kitchen.

Uphill battle

As is often the way, the judge had clearly read the papers and pretty much made up his mind before we began. I got both barrels from the off, as he opened with: 'Mrs Burtinshaw your client has already made a transfer application which failed, what makes you think I will make a different decision?' He expressed a doubt that my client would need all four of its witnesses, suggesting that the lady who had been advised not to travel may duplicate others' evidence, although he confessed to not having read the witness statements (which show that to not be the case).

The judge was, however, even-handedly bad-tempered, and the landlord was next to receive negative attention. He informed her that property managers are not generally responsible for errant tenants and that she would lose at trial unless she could show that my client had failed to properly carry out its tenant checks, which is of course vehemently denied.

Ultimately, the judge rejected our application and the case stayed put. This meant that our client's four witnesses had to get up at the crack of dawn to catch a train down to London and then travel to its outskirts in time for the trial beginning at 10am, as the court had also unhelpfully refused to list it later in the day to accommodate them.

We could unfortunately not justify the costs of travelling down to the trial from Manchester ourselves, as the case has a value of under £5,000 and we must of course think proportionately. We instead instructed a junior barrister after shopping around to drive down the brief fee quotations.

You can then imagine my amazement when the barrister called the office to advise that the case had been adjourned. The trial judge had apparently not appreciated that the defendant was going to call four witnesses, although her colleague had been highly critical of that same fact just days earlier, and felt that the 2.5-hour hearing time would not suffice. The judge also thought that the case would be better transferred to Manchester, for the convenience of the defendant and its four witnesses. What a farce.

Copyright & permissions