Northwood (Solihull) Ltd v Vicky Cooke
| Jurisdiction | England & Wales |
| Judge | Lord Justice Snowden,Lord Justice Lewison,Lord Justice Newey |
| Judgment Date | 26 January 2022 |
| Neutral Citation | [2022] EWCA Civ 40 |
| Docket Number | Case No: CA-2021-000388 (formerly A2/2021/0132 & A2/2021/0496) |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 40
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Mr Justice Saini
D3PP2043
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
Lord Justice Newey
and
Lord Justice Snowden
Case No: CA-2021-000388 (formerly A2/2021/0132 & A2/2021/0496)
Justin Bates AND Tom Morris (instructed by JMW Solicitors) for the Respondent in the appeal and for the Appellant in the cross-appeal
Christopher Heather QC and Stephen Cottle (instructed by The Community Law Partnership) for the Appellant/Respondent Vicky Cooke
The 1 st and 3rd Respondents in the 2nd appeal did not appear and were not represented
Hearing date: 18 January 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and released to BAILII. The date and time for hand-down is deemed to be 2pm on Wednesday 26 January 2022.
Introduction
The main issues on this appeal concern the manner in which documents required to be given to a residential tenant are to be authenticated. There are two documents in issue:
i) A certificate given to the tenant under section 213 of the Housing Act 2004 (providing information about the deposit scheme); and
ii) A notice given under section 8 of the Housing Act 1988 seeking possession.
The landlord in relation to each notice is a limited company. The tenants' Defence asserted that neither document was valid because neither had been authenticated in the manner required by section 44 of the Companies Act 2006. No other defence relevant to this appeal was pleaded. On an appeal from HHJ Williams, Saini J held that the first of these documents was invalid unless it was authenticated in the manner required by section 44; but that the second was valid although it had only been signed by the landlord's agent. His judgment is at [2020] EWHC 3538 (QB), [2021] 1 WLR 1937.
The tenant appeals against the second of these conclusions; and the landlord cross-appeals against the first. The judge took the question of the validity of the section 8 notice before that of the certificate. But since the giving of the certificate precedes the giving of the section 8 notice, I will take them in chronological order.
The statutory requirements about the documents
The certificate
Part 6 Chapter 4 of the Housing Act 2004 contains the primary legislation about deposit schemes. Since the relevant events in this case it has been amended, with effect from 6 April 2017, by the Housing and Planning Act 2016. At the time of those events, section 212 of the 2004 Act relevantly provided:
“(1) 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.
…
(9) In this Chapter–
(a) references to a landlord or landlords in relation to any shorthold tenancy or tenancies include references to a person or persons acting on his or their behalf in relation to the tenancy or tenancies…”
Section 213 relevantly provided:
“(1) Any tenancy deposit paid to a person in connection with a shorthold tenancy must, as from the time when it is received, be dealt with in accordance with an authorised scheme.
(2) No person may require the payment of a tenancy deposit in connection with a shorthold tenancy which is not to be subject to the requirement in subsection (1).
(3) Where a landlord receives a tenancy deposit in connection with a shorthold tenancy, the initial requirements of an authorised scheme must be complied with by the landlord in relation to the deposit within the period of 30 days beginning with the date on which it is received.
(4) For the purposes of this section ‘the initial requirements’ of an authorised scheme are such requirements imposed by the scheme as fall to be complied with by a landlord on receiving such a tenancy deposit.
(5) A landlord who has received such a tenancy deposit must give the tenant and any relevant person such information relating to— (a) the authorised scheme applying to the deposit, (b) compliance by the landlord with the initial requirements of the scheme in relation to the deposit, and (c) the operation of provisions of this Chapter in relation to the deposit, as may be prescribed.
(6) The information required by subsection (5) must be given to the tenant and any relevant person— (a) in the prescribed form or in a form substantially to the same effect, and (b) within the period of 30 days beginning with the date on which the deposit is received by the landlord.
…
(10) In this section— ‘prescribed’ means prescribed by an order made by the appropriate national authority.”
The “prescribed information” to be provided to a tenant in accordance with section 213(5) and the “prescribed form” under section 213(6) are both the subject of the Housing (Tenancy Deposits) (Prescribed Information) Order 2007 (“the 2007 Order”). Article 2 of the 2007 Order was amended by section 30 of the Deregulation Act 2015. The amendments took effect on 26 March 2015. Article 2 in its amended form provides:
“(1) The following is prescribed information for the purposes of section 213(5) of the Housing Act 2004 (‘the Act’)— (a) the name, address, telephone number, e-mail address and any fax number of the scheme administrator of the authorised tenancy deposit scheme applying to the deposit; (b) any information contained in a leaflet supplied by the scheme administrator to the landlord which explains the operation of the provisions contained in sections 212 to 215 of, and Schedule 10 to, the Act; (c) the procedures that apply under the scheme by which an amount in respect of a deposit may be paid or repaid to the tenant at the end of the shorthold tenancy (‘the tenancy’); (d) the procedures that apply under the scheme where either the landlord or the tenant is not contactable at the end of the tenancy; (e) the procedures that apply under the scheme where the landlord and the tenant dispute the amount to be paid or repaid to the tenant in respect of the deposit; (f) the facilities available under the scheme for enabling a dispute relating to the deposit to be resolved without recourse to litigation; and (g) the following information in connection with the tenancy in respect of which the deposit has been paid— (i) the amount of the deposit paid; (ii) the address of the property to which the tenancy relates; (iii) the name, address, telephone number, and any e-mail address or fax number of the landlord; (iv) the name, address, telephone number, and any e-mail address or fax number of the tenant, including such details that should be used by the landlord or scheme administrator for the purpose of contacting the tenant at the end of the tenancy; (v) the name, address, telephone number and any e-mail address or fax number of any relevant person; (vi) the circumstances when all or part of the deposit may be retained by the landlord, by reference to the terms of the tenancy; and (vii) confirmation (in the form of a certificate signed by the landlord) that— (aa) the information he provides under this sub-paragraph is accurate to the best of his knowledge and belief; and (bb) he has given the tenant the opportunity to sign any document containing the information provided by the landlord under this article by way of confirmation that the information is accurate to the best of his knowledge and belief.
(2) For the purposes of paragraph (1)(d), the reference to a landlord or a tenant who is not contactable includes a landlord or tenant whose whereabouts are known, but who is failing to respond to communications in respect of the deposit.
(3) In a case where the initial requirements of an authorised scheme have been complied with in relation to the deposit by a person (“the initial agent”) acting on the landlord's behalf in relation to the tenancy—
(a) references in paragraph (1)(b), (g)(iii) and (vii) to the landlord are to be read as references to either the landlord or the initial agent;
(b) references in paragraphs (1)(d), (e), (g)(iv) and (vi) and (2) to the landlord are to be read as references to either the landlord or a person who acts on the landlord's behalf in relation to the tenancy.
(4) In any other case, references in paragraphs (1)(d), (e), (g)(iv) and (vi) and (2) to the landlord are to be read as references to either the landlord or a person who acts on the landlord's behalf in relation to the tenancy.
(5) Section 212(9)(a) of the Act (references to landlord include persons acting on landlord's behalf) does not apply for the purposes of this article.”
Although the amendments did not take effect until 26 March 2015, article 3 of the amended order (which was inserted by section 30 (3) of the Deregulation Act itself) provides that “paragraphs (3) to (5) of article 2 are treated as having had effect since 6th April 2007”, subject to certain transitional provisions (which do not apply in our case).
The Explanatory Notes accompanying section 30 of the Deregulation Act 2015 (by which the amendments were made) stated:
“154. The amendments would rectify a problem which has been identified with the prescribed information order which is that it does not clearly allow (as the Government intended) for a letting agent's details to be provided in the prescribed information instead of the landlord's. The amendments to article 2 of the order would make it clear that each of the references to ‘the landlord’ in the order are to be read as references to either the landlord or the letting...
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