Ayannuga v Swindells
| Jurisdiction | England & Wales |
| Judge | Lord Justice Etherton,Lord Justice Lewison |
| Judgment Date | 06 November 2012 |
| Neutral Citation | [2012] EWCA Civ 1789 |
| Docket Number | Case No: B5/2012/0804 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 November 2012 |
[2012] EWCA Civ 1789
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WOOLWICH COUNTY COURT
(DEPUTY DISTRICT JUDGE WALDER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Etherton
and
Lord Justice Lewison
Case No: B5/2012/0804
Mr David Watkinson (instructed by Hereward and Foster LLP) appeared on behalf of the Appellant.
Mr D Gibson-Lee (instructed by Abbey and Nat Solicitors) appeared on behalf of the Respondent.
This is an appeal from an order made by Deputy District Judge Walder in the Woolwich County Court on 15 March 2012. The appeal is in relation to that part of the Deputy District Judge's order which dismissed the appellant's counterclaim for relief from breach of the provisions of section 213 of the Housing Act 2004 ("the 2004 Act") relating to deposits.
Section 212(1) of the 2004 Act provides that:
"The appropriate national authority must make arrangements for securing that one or more tenancy deposit schemes are available for the purpose of safeguarding tenancy deposits paid in connection with shorthold tenancies."
Section 212(2) provides that:
"…a 'tenancy deposit scheme' is a scheme which—
(a)is made for the purpose of safeguarding tenancy deposits paid in connection with shorthold tenancies and facilitating the resolution of disputes arising in connection with such deposits
…"
Section 213(1) and (5)(a) of the 2004 Act provide that a landlord who has received a tenancy deposit from a person in connection with a shorthold tenancy must deal with it in accordance with an authorised scheme and must give to the tenant such information relating to the authorised scheme as may be prescribed.
Section 213(6) provides that such information must be given to the tenant in the prescribed form within the period of 14 days beginning with the date on which the deposit is received by the landlord.
Section 213(10) provides that "prescribed" means prescribed by the appropriate national authority.
I should say that those provisions, together with the provisions in section 214 of the 2004 Act, to which I will refer in a moment, have been amended as from 6 April 2012 by the Localism Act 2011 section 184: see the Localism Act 2004 (Commencement Number 4 and Transitional, Transitory and Saving Provisions) Order 2012 SI 2012/628, paragraph 8. It is common ground that those amendments do not apply in the present case.
The Housing (Tenancy Deposits) (Prescribed Information) Order 2007 SI 2007/797 ("the Housing Order") prescribes information for the purposes of section 213(5) of the 2004 Act. The order does not prescribe a form as such, but, as was recognised in Vision Enterprises Ltd v Tiensia [2010] EWCA Civ 1224, [2012] 1 WLR 94 at paragraph [7] (Rimer LJ), the effect of the order is to prescribe what information has to be given in compliance with section 213 of the 2004 Act.
The question on this appeal is whether the Deputy District Judge was correct to conclude that the respondent complied with the obligation under section 213(5) and (6) to provide the information substantially as prescribed by the Housing Order.
The factual background to this appeal may be summarised briefly as follows. By a tenancy agreement dated 6 September 2010 ("the Tenancy Agreement") the respondent let the property at 55 Myrtledene Road, Abbeywood, London SE2 0EU ("the Property") to the appellant on an assured shorthold tenancy for 12 months from 6 September 2010 at a monthly rent of £950. The Tenancy Agreement provided for the respondent to pay a deposit of £950 on the signing of the agreement. The Tenancy Agreement contained a number of provisions concerning the deposit. The deposit was duly paid.
As appears both from the Tenancy Agreement itself and correspondence in evidence, the deposit was paid to the administrator of an authorised scheme, which was a custodial scheme as opposed to an insurance scheme. The scheme was the Deposit Protection Service based in Bristol. The scheme was not in evidence at the hearing before the Deputy District Judge, but it should have been.
The respondent commenced these proceedings by a claim form issued on 20 May 2011. The proceedings began as a straightforward claim for possession of the Property on the ground of arrears of rent. There were amended Particulars of Claim in which Grounds 10 and 11 as well as Ground 8 in Schedule 2 to the Housing Act 1988 ("the 1988 Act") were relied upon, and it was also said that the tenancy had been terminated by a notice under section 21 of the 1988 Act. There is no copy of the amended Particulars of Claim in the court bundle before this court, but nothing turns on that document for the purposes of this appeal.
There was a re-Amended Defence and Counterclaim, which denied on various grounds any right to possession, including not admitting the arrears of rent, denying that two months' rent was in arrears for the purpose of Ground 8, denying that the notice under section 21 of the 1988 Act was effective and denying that it would be reasonable to make an order for possession. There was a counterclaim for: 1) damages and an injunction or an order for specific performance for disrepair; 2) damages for breach of the covenant of quiet enjoyment; and 3) an order pursuant to section 214(3) and (4) of the 2004 Act for repayment of the deposit to the respondent and for the payment to the respondent of a sum equal to three times the amount of deposit, namely £2,850 within the period of 14 days of the making of the order. So far as concerns the deposit, there were various alleged breaches of the requirements of section 213 of the 2004 Act, including a failure to provide the information specified in section 213(5) and (6).
In his Reply and Defence to Counterclaim the respondent denied that there had been any breach of section 213(6) of the 2004 Act. He relied in that connection on information about the deposit in the Tenancy Agreement and a letter to the appellant dated 8 September 2010.
The proceedings having been allocated to the multi-track, they came before District Judge Walder on 13 March 2012 for a trial that, in the event, lasted some 3 days. The respondent appeared in person. The appellant was represented by Mr David Watkinson, counsel. It appears that on 15 March 2012, immediately after the lunch adjournment and just before the Deputy District Judge gave his judgment, the respondent provided to the appellant a handwritten document giving additional information about the deposit ("the Additional Information Document").
It is not necessary to consider any part of the Deputy District Judge's careful and full judgment or his formal order insofar as they address matters other than the counterclaim in respect of the deposit. He addressed the allegations about the deposit in paragraph 40 of his judgment, dismissing them as follows:
"40. Finally, there is the issue of the tenancy deposit. I have been handed [the Additional Information Document]. To be fair to the defendant it is right to acknowledge that I made it abundantly clear to the claimant that if he were to satisfy this requirement before I gave my judgment I would find, as the law compels me to, that he was not in breach of those sections. It seems to me and indeed I find that the requirements are satisfied by looking at (a) the lease and (b) [the Additional Information Document] that I have before me, on the basis that it does not have to actually satisfy all of the requirements but to substantially satisfy [them]. I will just refer specifically to the legislation. What is required is that the information required by subsection (5) must be given to the tenant in the prescribed form or in a form substantially to the same effect. In my judgment the lease coupled with this additional document gives the information substantially to the same effect and on that basis in my judgment the claimant has complied with his obligations."
The Deputy District Judge gave the appellant permission to appeal his decision on the deposit.
Mr Watkinson has appeared for the appellant today, as he did before the Deputy District Judge. The respondent is represented today by Mr David Gibson- Lee, counsel.
Mr Gibson- Lee, both in his admirably concise skeleton argument and in his equally contained oral submissions, supports the judgment of the Deputy District Judge. He emphasised in his oral submissions the circumstances in which the Judge came to address the issue in his court. He emphasised that at that hearing the respondent was unrepresented; that the appellant was represented; that it was perfectly clear from the documentation that she was well aware, if only from the terms of the Tenancy Agreement itself, who was the custodian trustee; that it was also clear that the administrator of the custodian scheme had written to her and that there would have been provided one way or the other the means by which she could find out such further information about the scheme as was necessary in the event of a dispute about the return of the deposit or indeed if there was any other reason to consider the circumstances in which the deposit should be returned.
Mr Gibson- Lee accepted that there was a failure to comply with section 213 and the Housing Order. In his written skeleton argument he accepted that the requirements in paragraph 2(1)(e) and (f) of the Housing Order were not complied with, but he disputed that the requirements in 2(1)(c) and (d) were not complied with. Those...
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