Suurpere v Nice
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE COX DBE,Mrs Justice Cox |
| Judgment Date | 27 July 2011 |
| Neutral Citation | [2011] EWHC 2003 (QB) |
| Docket Number | Case No: QB/2010/0362 |
| Date | 27 July 2011 |
| Court | Queen's Bench Division |
[2011] EWHC 2003 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Cox DBE
Case No: QB/2010/0362
SIMON BUTLER (instructed by Burke Naizi, Solicitors) for the Appellant/Claimant
CHRISTOPHER NICE and PATRICIA NICE – IN PERSON
Hearing dates: 12 May 2011
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Karin Suurpere (the Appellant) is appealing by permission of Eder J., granted in respect of one ground only, against the order of His Honour Judge Reid QC, dated 1 June 2010, dismissing her claim for damages for breaches by her former landlords, Mr and Mrs Nice (the Respondents), of sections 213–214 Housing Act 2004.
The issue raised is whether the Respondents, when letting premises to the Appellant, fully complied with the deposit protection scheme contained in s.213(6)(a) of the Housing Act 2004 (the Act) and in Article 2 of the Housing (Tenancy Deposits) (Prescribed information) Order 2007. This issue is of some importance in practice.
At the hearing before me the Appellant was represented by Mr Butler and the Respondents, Mr and Mrs Nice, appeared in person. I am grateful to them for their helpful, written and oral submissions. The matter is not straightforward.
The Relevant Facts
On 6 January 2009 the Respondents, described by Judge Reid in his judgment as "inexperienced landlords" let part of the premises they owned at 3 Hillcrest Road, Guildford to the Appellant. She was granted an assured shorthold tenancy for a fixed term of 6 months, at a monthly rent of £300.00 payable on the 6 th day of each month.
On 6 January 2009 the Appellant also paid the Respondents a deposit of £500.
For various reasons, which are not directly relevant to the issue arising on appeal, relationships between the Appellant and other tenants in the premises, and also between the Appellant and the Respondents, began to deteriorate. As Judge Reid expressed it, "things began to turn sour". The Respondents alleged, amongst other things, that the Appellant was disturbing the other tenants. The Appellant alleged that the Respondents were harassing her.
Mr Nice served a Notice to Quit on the Appellant, dated 11 May 2009. However the Notice was invalid, not being in the approved form and not providing the Appellant with two months notice, as required by section 21(1) of the Housing Act 1988. A two-month Notice to Quit was then served on 18 May, but in error the Respondents back-dated the Notice to 11 May 2009.
It also appears that, on 12 June 2009, the Respondents fixed a notice to the front door of the Appellant's property described as a "Notice of Eviction", but which the Judge found was not in fact such a notice.
On 15 July 2009 the Respondents issued summary proceedings for possession in Guildford County Court (Claim No. 9GU01413). However, it would appear that the Particulars of Claim were defective because the Respondents relied on the back-dated Notice to Quit served on 18 May stating, incorrectly, that it had expired on 11 July. The Court can only determine a tenancy and grant possession if the landlord has complied with the requirements of section 21.
The Tenant's Deposit
The Respondents did not in fact transfer the Appellant's deposit from their bank account to the Deposit Protection Service, as required by the legislation, until 20 July 2009. The Respondents informed the Appellant of this transfer by a letter of the same date. This letter seems to have followed a letter sent to the Respondents on the Appellant's behalf by the Citizens Advice Bureau, dated 15 July 2009, drawing attention to their obligations concerning the deposit protection scheme. However, no reference was made in that letter from the CAB to the statutory requirement for a landlord to provide a tenant with "prescribed information".
On 10 August 2009 the Appellant herself issued proceedings against the Respondents, which included a claim for the return of her deposit. She alleged that they were in breach of sections 213–214 of the 2004 Act. In her hand-written Particulars of Claim she alleged that s.213 of the Act requires a landlord to protect a deposit in an authorised tenancy protection scheme within 14 days of receiving the deposit; and, further, to provide the tenant with the information prescribed within 14 days. She alleged that the deposit had not been protected in a scheme within the 14 day period and that the Respondents had failed to provide her with the prescribed information at any stage. She therefore claimed that she was entitled to receive a sum of three times the amount of the deposit, in accordance with the relevant provisions of the Act.
On 14 August 2009 the Appellant left the premises, allegedly as a result of unlawful harassment by the Respondents. She did not return. On 1 September 2009 her deposit was returned to her in full.
In their Amended Defence the Respondents stated that, when Guildford Borough Council informed them in June 2009 that they were subject to the Act, they transferred the deposit into an approved scheme and "gave the Claimant the required information." They pointed out that they had since returned the deposit to her in full and described what had happened as an "innocent technical breach" of the Act, which they had since corrected.
In her Particulars of Claim the Appellant also pursued claims for wrongful eviction, on which point she failed, and for breach of the covenant of quiet enjoyment, which succeeded and for which she was awarded compensation of £1,000.00. No issue arises in this appeal in respect of either of those claims.
It appears that Judge Reid stayed the possession proceedings brought by the Respondents, pending his determination of the Appellant's claim for damages. In the course of his judgment on the Appellant's claim, he noted that the Notice to Quit was defective, because it did not provide the Appellant with the appropriate statutory notice.
The Judge's Decision on the Deposit
In respect of the Appellant's deposit claim, the Judge had before him at the hearing witness statements from the parties containing their respective contentions, as set out in the pleadings. A statement from Stuart Hamilton, senior housing officer at Guildford Borough Council, referred to him having given the Appellant advice in July 2009, including a booklet about the Rent Deposit Protection Scheme.
It appears that the Deposit Protection Service (DPS) themselves provided the Appellant with some information concerning her deposit. It is not in dispute that, by their letter of 21 July 2009, the DPS informed the Appellant that her landlords had successfully submitted her deposit to the Deposit Protection Service. They provided a repayment ID for the deposit and informed her that she could download a copy of the rules of the scheme on the DPS website or by contacting them at a stated email address or telephone number. Further, they informed her that the details which had been provided by her landlord were as follows:
" Deposit ID:
11387753
Rental property:
3 HILLCREST ROAD, GUILDFORD, SURREY, GU2 8HR
Name of Lead Tenant:
Miss Karin Suurpere
Agent/Landlord name:
Mr Christopher Nice
Agent/Landlord address:
79A WESTFIELD ROAD, WOKING, SURREY, GU22 9PX
Start date of tenancy:
06 January 2009
Tenancy period:
6 months
Deposit amount:
£500.00
Date deposit received:
06 January 2009"
In their subsequent letter to the Appellant, dated 8 September 2009, the DPS confirmed the date of 20 July as the date when the deposit had been submitted to them. In a deposit summary, dated 8 October 2009, the DPS set out the registration number, the name and contact details of the landlord, the address of the property and the amount of the deposit.
That is the extent of the evidence before the judge concerning the transfer of the Appellant's deposit and the provision of information to her concerning it.
At the time he considered the matter, Judge Reid had before him the recent decision of Tugendhat J. in Draycott & Draycott v. Hannells Letting Limited (trading as Hannells Letting Agents) [2010] EWHC 217 (QB), in which he considered the relevant sections of the 2004 Act.
The Appellant, appearing in person before Judge Reid, alleged essentially that the Respondents were in breach of the statutory provisions both because the deposit had not been paid over to the DPS within 14 days of receipt, and because she had not been provided with the necessary, prescribed information by the Respondents. She therefore claimed to be entitled to a sum of three times the amount of the deposit she had paid, pursuant to s. 214(4) of the Act.
Judge Reid dismissed her claim, applying the decision in Draycott and finding that, since the deposit had in fact been lodged under the Deposit Protection Scheme on 20 July, before the commencement of her proceedings on 10 August, the penal sanctions in s. 214(4) did not apply.
Mr Butler submits that the Judge erred in so finding.
The Appeal
The Legal Framework
Tenancy deposit schemes are dealt with in Chapter 4 of Part 6 of the Housing Act 2004. S. 212 requires the appropriate national authority to 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.
Ss. 213 and 214 provide as follows:
" 213 Requirements relating to tenancy...
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