CHAPTER ONE – THE CORRECT PARTIES
Who is the tenant?
This may seem an obvious question, but it is surprising how easy it is to make a mistake. Given that the action is contractual in nature, identification of the contracting party or parties is essential. The best indication will come from the tenancy agreement, but often the solicitor will not have this, as the prospective Defendant landlord has not disclosed it, and the tenant has not retained, or cannot locate, a copy.
A further problem arises due to the fact that there may be joint tenants, and the Civil Procedure Rules (CPR) require that where two or more persons are jointly entitled to a remedy, all persons jointly entitled to the remedy must be parties in the action – see CPR 19.3 (1). However, one of the tenants may have permanently ceased occupation for some reason, for example joint tenants may be divorced and only one remains. The Rules provide for this type of situation – see CPR 19.3 (2). However, the general rule is that both tenants must be Claimants in the action, and the fee earner with conduct should ensure that there is a retainer with both.
Having identified who the tenant is, consideration will need to be given as to whether there are any logistical problems. If the client speaks little or no English then ultimately the services of an official interpreter may be required. Initially a family member can help the solicitor with taking instructions – and then later help counsel in conference. An assessment will have to be made with some clients whether a litigation friend will be needed due to issues with capacity (which may require input from the client’s GP or some other professional), or generally because the client would have difficulty giving or receiving instructions without assistance. Children of the tenant will of course require a litigation friend (normally the tenant) if they are to be joined as Claimants in any action where they are seeking damages for personal injury.
Who is the landlord?
This can often be problematic. The best way of ascertaining the identity of the landlord is to see how the landlord describes itself in the tenancy agreement. However, as mentioned above, tenancy agreements are not always available, either from the landlord or the tenant. Sometimes, even if they are available, they have the name of the original landlord before a sale or stock transfer to the present landlord.
Some landlords conduct all of their day-to-day affairs, including the litigation process, through an arms length management organisation (ALMO). It is easy to think that this organisation is the landlord. Experience has shown that some landlords can be less than open over their exact identity. The seriousness of this is that proceedings can mistakenly be issued against the wrong landlord. This in turn leads to the problem of having to amend pleadings (if that is even permitted by the rules in these circumstances) or of having to discontinue proceedings altogether and start again. Either scenario can be expensive and can be a waste of both time and costs. Accordingly it is essential to ascertain the correct identity of the landlord before issuing proceedings. If there is any doubt, enquiry must be made with the potential Defendant or, if represented, with its solicitors to ensure that this mistake is not made.
It is also important to check if the landlord is a limited company. Again, incorrectly naming the landlord as an unincorporated organisation will only lead to difficulties, and may well lead to discontinuance.
It should be remembered that there is a statutory remedy to assist in what may be or may become a difficult situation, albeit that this may only be a rare occurrence. Section 1 of the 1985 Act creates a summary offence and reads as follows:
“1 Disclosure of landlord’s identity.
(1) If the tenant of premises occupied as a dwelling makes a written request for the landlord’s name and address to—
(a) any person who demands, or the last person who received, rent payable under the tenancy, or
(b) any other person for the time being acting as agent for the landlord, in relation to the tenancy,
that person shall supply the tenant with a written statement of the landlord’s name and address within the period of 21 days beginning with the day on which he receives the request.
(2) A person who, without reasonable excuse, fails to comply with subsection (1) commits a summary offence and is liable on conviction to a fine not exceeding level 4 on the standard scale.
(3) In this section and section 2—
(a) “tenant” includes a statutory tenant; and
(b) “landlord” means the immediate landlord.”