Tenant's defence and counterclaim process

A defence to a possession claim can prevent a landlord from gaining possession of a tenancy through the courts.

The tenant can defend a possession claim for reasons including the:

• notice or claim to start the court action was not valid

• landlord has issued a claim under section 21 and has not complied with one of the statutory requirements, for example protecting the tenancy deposit

• tenant has a counterclaim, for example, due to disrepair at the property or discrimination against the tenant

• landlord has unlawfully discriminated against the tenant

Not reasonable to order possession

When the court deals with a claim on a discretionary ground it must consider whether it is reasonable to make a possession order. The tenant can use the defence form to explain why it is not reasonable to order possession.

The court must consider if it is reasonable to order possession whether the tenant has completed the defence form or not.

The court usually decides if it is reasonable to order possession on the day of the possession hearing.

Suspended possession orders

The court can suspend a possession order made on a discretionary ground. This is different to the tenant having a defence, but the tenant can use the defence form to ask for a suspended possession order.

The court can suspend possession whether the tenant has completed the defence form or not.

The court usually decides whether to suspend possession on the day of the hearing.

To defend the claim for possession, the tenant must file a defence form with the court within 14 days of receiving the claim documents.[1]

A tenant who fails to file the defence in time can send it to the court late, or put forward a defence at the hearing. The court must decide whether to grant the tenant more time to file their defence.

Section 21 claims have no hearing date, so the court might not have the chance to consider a defence filed after the deadline.

Form of the defence

The defence must be in the standard form. This could be the:[2]

• claim for possession of a rented property: Form N11R

• accelerated possession procedure (assured shorthold tenancy): Form N11B

If the claim has been started using the Possession Claim Online (PCOL) service, the defendant can file a defence or counterclaim, using PCOL.

A solicitor or legal adviser might file a fully pleaded defence that meets court requirements but is not on a standard defence form.

How to complete the defence form

The tenant should complete the defence form to the best of their ability in the limited space available.

An adviser or lay representative can help the tenant complete their defence form.

Some parts of the form can be amended. For example, in the section that asks about benefits, the tenant could cross out income support and write universal credit, if that is what they have claimed.

The tenant can get help from a debt adviser if they need help to complete the income and expenses part of the defence form.

Statement of truth

The tenant, their solicitor, or a court-appointed litigation friend must sign the statement of truth.[3]

An adviser or lay representative cannot sign a statement of truth.

A tenant's claim against their landlord can be part of their defence to a possession claim. This is called a counterclaim.

A counterclaim is sometimes called a Part 20 claim because the rules are contained in Part 20 Civil Procedure Rules.

Counterclaims in response to a possession claim are in scope for legal aid. Find out more about legal aid for housing problems.

When counterclaims are used

Common counterclaims in possession proceedings are for:

• disrepair at the property, or a property that is unfit for habitation

• disability discrimination

• harassment

Counterclaims set off against rent arrears

A tenant can counterclaim for anything they could issue a fresh claim for. Filing a counterclaim means it can be used as a defence to possession when a fresh claim could not.

In rent arrears claims, damages awarded in a counterclaim can be offset against the rent arrears forming the landlord's possession claim. For example, if a tenant successfully counterclaims for damages for disrepair, the amount they are awarded would be deducted from the rent arrears. If the disrepair damages exceed the rent arrears, the landlord owes the tenant money.

A successful counterclaim can be a defence to a claim against an assured or assured shorthold tenant on ground 8.

Read more about ground 8 possession.

Damages awarded in a counterclaim do not affect a landlord's right to possession for claims:

• on grounds other than rent arrears

• under the accelerated procedure for section 21

Details of the counterclaim

The tenant must include the particulars of the claim with their counterclaim.[4]

The particulars of claim must state the:[5]

• nature of the counterclaim

• remedy the tenant seeks, for example, damages

• value of any claim for money, and interest on it

The tenant must make the basis of their counterclaim clear by identifying legal obligations the landlord has failed to comply with. For example, damages for disrepair or failing to protect a tenancy deposit.

If the legal basis of the counterclaim is not clear, the court could dismiss it without a hearing.[6]

When the tenant files the counterclaim

The tenant does not need the court's permission to file their counterclaim with the defence form.

The tenant must obtain permission from the court to file the counterclaim at any time other than when the defence is filed.[7] The court can grant permission for the tenant to file a counterclaim at any time before the possession order is enforced.[8]

Fee to issue the counterclaim

The tenant must pay a fee to issue their counterclaim. The amount of the fee depends on the value of their claim and whether they are seeking a non-monetary remedy, for example, an order for the landlord to complete repairs.

Tenants on a low income might be eligible for a fee remission. This could reduce or remit the fee they must pay to issue a claim.

Find out more about court fees in civil claims on Shelter Legal.

Landlord's response to the counterclaim

The landlord is the defendant in the counterclaim action.

The court might refer to the tenant as the part 20 claimant and the landlord as the part 20 defendant.

The landlord has 14 days to file a defence to the counterclaim.

The court deals with the claim and counterclaim in the same proceedings.

When the court receives the defence it must decide whether the claim for possession is 'genuinely disputed on grounds which appear to be substantial'.[9]

If the possession claim is genuinely contested, the court can either make an order at the first hearing or allocate the case to track and give case management directions.[10]

Judgment at the first hearing

The court is only likely to make an order at the first hearing in cases where there is no dispute about the facts, and the law is completely clear. For example, if the landlord did not give the tenant enough notice before starting a possession claim.

The claim is likely to be decided without a trial if:

• that claimant has no real prospect of succeeding on the claim or issue

• that defendant has no real prospect of successfully defending the claim or issue

• there is no other compelling reason why the case or issue should be disposed of at a trial

This is the same test as for summary judgment.[11]

Defences that rely on disability discrimination should not normally be decided at the first hearing.[12]

Directions for a trial

The court normally instructs the landlord and the tenant what to do next. These court instructions are called case management directions.

Case management directions are court orders setting out what steps must be taken, for example, which documents must be filed and the deadlines for doing so. The directions might state how and when the trial will take place.

Failing to follow the court's directions can lead to costs sanctions and in extreme cases to having the defence or claim struck out.

Which track the claim is allocated to

Most cases are allocated to a track determined by the:[13]

• type of case

• financial value of any money claim

• complexity of the case

The court must also consider the amount of any rent arrears, and the importance of vacant possession to the landlord:[14]

The financial value of the property is not necessarily an important factor.[15]

Possession claims cannot be allocated to the small claims track unless both parties agree.[16]

The tenant can submit evidence for the court to consider when it decides the case.

Evidence can take the form of written documents, conversations in emails or text messages, photographs, or statements.

When the tenant supplies evidence

The defendant does not need to supply all the evidence with their defence form. They will get a chance to submit it later.

If the tenant has evidence to prove the claim should be dismissed, including it with the defence could mean the court dismisses the claim without having to hold a trial.

The court gives instructions for filing evidence when it makes case management directions for the trial.

Disclosure

The purpose of disclosure is to make the court aware of any documents the parties have whether they help their case or the other side's case.

For disclosure, 'document' means any form of recorded information, not just paper records. It includes:

• photographs

• emails

• mobile phone texts

• social networking messages

• video-clips

The court normally orders the parties to send a list of all the relevant documents to the other party, then supply copies of any of the documents they are asked to produce.

Guidance about disclosure of documents is available at Justice.Gov.UK

Witness evidence

Witness evidence is the evidence given about the facts of a case by the claimant, defendant, or a third party in court proceedings.

Most case management directions include instructions for the tenant to file a witness statement. The witness statement allows the tenant to put their version of the facts to the court.

The witness statement must not contain the tenant's legal arguments.

Failure to file a witness statement could mean the tenant is not permitted to give evidence to support their defence.

Form of a witness statement

A witness statement must follow strict rules about format and content.

The statement must be made in the person's own words, from their knowledge. It must be supported by a signed statement of truth.

Find out more about witness statements on Shelter Legal.

Expert evidence

The court might need expert evidence from a third party. This is more common in some types of cases, for example, disrepair counterclaims.

The judge will make directions for an expert to be appointed if necessary.

Skeleton arguments

A skeleton argument contains the legal arguments the tenant wants the court to consider. For example, legislation or case law that supports their case.

The trial normally takes place at a County Court hearing centre.

Representation at court

The landlord or tenant or both might have legal representation. Someone without legal representation at court is called a litigant in person.

The tenant might have a lay representative, for example, an adviser from a Law Centre or Citizens Advice.

The Equal Treatment Bench Book has information for courts about how to treat litigants in person and lay advisers.

Duty advice is not routinely available for cases that go to trial. The tenant must get advice in advance if they need court representation.

Find out more about where to get housing advice for a possession claim and legal aid for housing problems on Shelter Legal.

Reasonable adjustments

The tenant can request adjustments from the court if necessary. For example, an interpreter, or disabled access.

How long the hearing lasts

The court provides a time estimate for the trial from the court. This could be anything from 30 minutes to multiple days.

How evidence is given

The judge reads through the claim and defence, and the witness statements.

The tenant might be questioned about the contents of their witness statement. There might not be an opportunity to raise other issues not contained in the defence or witness statement.

The tenant or their representative has the opportunity to question the landlord.

How the parties give legal arguments

Both parties can explain the legal basis for their case and point out errors in the other party's case.

How judgment is given

The judge usually makes a final order at the end of the trial.

The order is sent out by post. This could take a few weeks, so the tenant must ensure they note the terms of the order and ask the judge if they are not sure what to do.

To have a possession order changed or overturned, the tenant might be able to:

• appeal the court's decision

• apply to set aside the order

• apply to vary the order

A tenant's application to set aside an order can include an application to vary as an alternative.

Tenant's appeal

Tenants who want to challenge the judge's decision must appeal.

The tenant can appeal a court decision if they think the judge:

• made a mistake in applying the law

• took into account irrelevant facts

• ignored relevant facts

Appeals about the judge's exercise of discretion, for example, whether it is reasonable to make a possession order, are less likely to be successful.

Read more about tenant's appeal of a possession order.

Tenant's application to set aside the possession order

A tenant's successful application to court to set aside a possession order gives them a second chance to defend the claim.

The tenant has grounds to apply to set aside the possession order if the claim was not served correctly.[17]

The tenant must satisfy the court:[18]

• that they had a good reason for not defending the claim

• that they acted promptly when they found out a possession order had been made

• that they have a defence with a reasonable prospect of success

The court can set aside the possession order at any time before the tenant is evicted.

After the tenant has been evicted the court can only set the order aside if the tenant can show there was fraud, oppression, or abuse of the court's process.

Read more about applications to set aside a possession order.

Tenant's application to vary the possession order

A tenant could apply to vary an outright possession order to a suspended order, or vary the terms of a suspended order.

An application to vary a possession order is only likely to be successful if either the tenant was not present to give evidence when the order was made, or if their circumstances have changed since.

If the tenant had a chance to challenge the terms of the order, they must appeal the judge's decision.

Read more about applications to vary a possession order.