There are already so many things to get right when making a claim for possession whether that is serving the correct notice, including the correct information or having sufficient evidence to support your claim. With that in mind, the last thing you want is to fall foul of any procedural steps that can result in the claim being struck out regardless of the evidence you have or the validity of the notice that you have served.
One element that is often overlooked by non-litigators as a formality is that the claim itself needs to be made and run in accordance with the Civil Procedure Rules (CPR). The CPRs cover all elements of claims that can be made to court whether that is statement of cases, witness evidence, experts, judgments, costs and the list goes on. Being familiar with these rules or at least aware that these rules exist and how they apply is crucial to running a successful claim.
One issue that is being raised more and more commonly in defending claims for possession is regarding standing to make a claim on behalf of the client and then presenting a case in court otherwise known as Locus Standi and Rights of Audience.
Locus standi –
This is essentially the ability to make a claim on behalf of your client. The right to issue the claim is reserved only for the party themselves, their legal representative or any litigation friend (often in the case of lack of capacity) as is often specified on the forms themselves. This means that an instructed managing agent is not able to sign a statement of truth on behalf of their client. This is set out in CPR22(6)(a) with certain limited exceptions for statements like witness statements (CPR22(6)(b)).
In cases where this has happened, the claim form officially is defective and is likely to be thrown out by the judge if noticed. When you realise the error before anyone else has highlighted it you have a couple of options. The claim can either be discontinued (the procedure for which is also in the CPR) and the client start again but the client would be liable for the other side’s legal costs or alternatively the client could file an application to amend the claim form and particulars of claim to have the statement of truth amended to be signed by the client/newly instructed solicitor directly. The making of an application is both costly and time consuming with no guarantee of being approved by the court and so getting it right in the first instance is crucial.
Rights of audience –
This relates to your ability to make representations at the hearing. Crucially, this is not to give evidence contained in your witness statement, but instead the presenting of the case and physically requesting the order that you are asking for on behalf of your client. The parties who are able to do this are given the authority to do so if one of the exemptions set out in Legal Services Act 2007 Schedule 3 section 1 applies. Amongst other exceptions including being a party to the proceedings yourself or a suitably qualified barrister or solicitor, these exemptions include:
(7)The person is exempt if—
(a) the person is an individual whose work includes assisting in the conduct of litigation,
(b )the person is assisting in the conduct of litigation—
(i) under instructions given (either generally or in relation to the proceedings) by an individual to whom sub-paragraph (8) applies, and
(ii) under the supervision of that individual, and
(c) the proceedings are not reserved family proceedings and are being heard in chambers—
(i) in the High Court or county court, or
(ii) in the family court by a judge who is not, or by two or more judges at least one of whom is not, within section 31C(1)(y) of the Matrimonial and Family Proceedings Act 1984 (lay justices).
Officially it should be a solicitor or the party themselves that are making this request as this is a clear exemption. If another party is presenting the case then the authority above would likely be the best argument to do so I.e. that the party was exempt from the rules as they are assisting in the conduct of litigation. However, this is a high bar to reach and there is a good counter argument that for example with managing agents, being instructed to manage the property would not be enough to meet this criteria. It is ultimately up to the judge and is decided entirely on a case by case basis. It is therefore a significant risk to take.
Any of the above errors along with a litany of others can be fatal to a claim for possession or any other court case for that matter. Therefore if you are not confident of the rules or you are not experienced with litigation make sure you are seeking legal advice as early as possible.
If further advice is required on claims for possession or any other litigation that is being contemplated then we would be happy to assist. New enquiries can be sent through to [email protected] and we can provide a quote.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.