Ameera Macintyre v Cowdray Trust Limited and Rathbones Trust Company Limited

By permission granted by me on 15 May 2025, the Appellant seeks to appeal an order made by District Judge Pain sitting at the County Court at Portsmouth on 26 November 2024 for possession of Haulkers Farmhouse, Cocking Causeway, Midhurst and for costs. By a Respondent’s notice dated 23 June 2025 the Respondent also seeks to appeal a different aspect of the District Judge’s decision. At the hearing on 2 July 2025, I gave permission for the Respondent to appeal out of time.

The Appellant was represented by Philip McLeish of Counsel (who also appeared below) and the Respondent by Katherine Traynor also of Counsel. I have the benefit of a skeleton argument in support of the appeal from Mr McLeish and one in support of the Respondent’s Notice from Ms Traynor. Mr McLeish had not prepared a skeleton in response to the Respondent’s Notice as he had not anticipated that I would proceed to hear the cross appeal. He did not however seek any adjournment in order to be able to respond. Ms Traynor had not prepared a skeleton argument in response to the appeal through lack of time. I heard oral argument from both Counsel.

On 7 June 2018 the Respondent granted to the Appellant an Assured Shorthold tenancy of Haulkers Farmhouse for a term of one year commencing on 29 June 2018. It was a term of the tenancy agreement that the Appellant should pay a deposit of £2,000 and she did so upon signing. On the same day, she was provided with Deposit Protection Certificate from a scheme known as ‘my|deposits’ operated by HFIS plc (an insurance company) and with the information prescribed by the Housing (Tenancy Deposits) (Prescribed Information) Order 2007.

At the outset of the tenancy, the Appellant used the email address meeramac@gmail.com. On 14 November 2018 the Respondent sent a rent demand by email to the Appellant. In a response on 29 January 2019, using that email address, the Appellant stated that “My email has changed to ameeramacintyre@gmail.com I would be grateful if you could send the rent demands to that address in future as I cannot receive emails to this one”. In later correspondence, she referred to her original email address as having been ‘hacked’.

At the expiry of the fixed term the tenancy became a ‘Statutory Periodic’ tenancy by virtue of the operation of Section 5(2) of the Housing Act 1988.At the end of 2022 the Respondent took a strategic decision to change the way it dealt with tenancy deposits. Accordingly, the Appellant’s deposit was paid over to another scheme known as TDS Custodial operated by The Dispute Service Ltd.

As well as being sent a revised certificate (by post and by email to meeramac@gmail.com), the Appellant was provided with a fresh document which purported to provide the prescribed information in connection with that scheme. Under the heading ‘Details of the Lead Tenant’, there is a section setting out ‘Contact details to be used at the end of the tenancy’. The Appellant’s email address was given as meeramac@gmail.com. The document was not signed but the covering letter was.

The relationship between landlord and tenant has not been a happy one. I understand that there are allegations of arrears of rent and counter allegations of disrepair and discrimination. A previous set of proceedings for possession based on service of a notice under Section 21 of the 1988 Act ultimately floundered due to a failure to serve the required How to Rent documentation. Having corrected that omission, the Respondent served a further Section 21 notice on 12 April 2024 and subsequently issued these proceedings.

The matter eventually came before DJ Pain in the form of a Fast Track trial. The Appellant had filed and served a witness statement but was unable to attend the trial. The Respondent relied upon the witness statement of Lauren Cleghorn. In paragraph 15 of that statement she deposes to the fact that the email sent on 24 November 2022 with the documentation relating to the change of scheme was opened 33 times. She also notes that the Appellant contacted TDS Custodial on 5 April 2023. Ms Cleghorn gave formal evidence but was not substantively cross-examined.

The issues that the District Judge had to determine were these. First, he had to determine whether the document purporting to contain the prescribed information was valid. If so, he had to consider whether the information given was that prescribed. If the answer to either of these first two questions was ‘no’, the District Judge had to consider whether the prescribed information served in 2018 did service and/or whether there was any ongoing obligation to provide a fresh set of prescribed information once it had been done at the outset.

In a commendably clear extempore judgment, The District Judge addressed the last issue first. He found that the obligations as regards the provision of prescribed information in Section 213 of the 2004 Act apply only at a time when a deposit is received and are not engaged again if it is subsequently transferred. He declined to imply into the language of the Section, as he construed it, some further requirement that would better give effect to the purpose of the legislation. Accordingly there was nothing in Section 215 of the 2004 Act that inhibited the giving of the notice.

In case he was wrong, the District Judge went on to consider the first two issues. On the issue of validity due to lack of signature, he held that he was bound by the decision of the High Court in Lowe v Governors of Sutton's Hospital in Charterhouse [2024] EWHC 646 (Ch). He rejected a submission on behalf of the Respondent that the Appellant’s email dated 29 January 2019 should be interpreted as only applying to rent demands, particularly given that subsequently the Respondent had acknowledged the need to change the Appellant’s contact details. He went on in this respect to hold that:

“47.

I note the use of the term “Any email address” in subparagraph four of the order. I do not however consider that this means the provision of any email address that has at some point been used by the tenant will be sufficient, but I am equally satisfied it does not require the claimant to provide the email address provided or preferred by the defendant. The question is whether in light of the purpose identified in subparagraph four, the email address for the tenant supplied was an email address that in light of the information available to the claimant at the point of compliance was one that would enable the tenant to be contacted at the end of the tenancy…”

48.

Equally, I do not consider that it can be considered that use of the first email address was substantially to the same effect as the second email address. I do not consider that that alternative construction put on matters by the claimant is sufficient to say that when you use one email address, which does not meet the test, it can be substantially to the same effect as an alternative email address. At the point the form was completed the claimant could not reasonable [sic] have considered, in my assessment, that the first email address was an email address for the defendant on which she could be reached at the end of her tenancy…”

The Appellant’s Notice advanced three grounds of appeal. The first was a challenge to the District Judge’s decision that no new obligation to provide prescribed information arose at the time of the transfer between schemes. Ground 2 contended that an application of the decision in Superstrike Ltd v Rodrigues [2013] EWCA Civ 669 required the Court to deem the deposit to have been re-received. Ground 3 sought to resurrect the signature point decided in Lowe. I gave permission on the first ground only. I refused a renewed application for permission to appeal on the other grounds at the hearing.

The Respondent’s Notice also advances three grounds of appeal. The first is that the District Judge was wrong to find as a fact that the email dated 29 January 2019 changed the Appellant’s email address for all purposes. Secondly, it is said that the District Judge was wrong in law to conclude that the prescribed information in terms of the email address had not been provided. Finally, it is said that the District Judge applied the wrong test in holding that the old email address was not ‘substantially to the same effect’ as the new one.

The relevant provisions of the Housing Act 2004 were introduced primarily to address the perceived misuse by landlords of deposits paid by tenants. In addition, by in effect introducing a form of ADR, they also served to reduce the number of tenancy deposit disputes coming before the County Court. Two types of deposit protection scheme have been set up by virtue of the arrangements directed by Section 212(1). The first is an insurance scheme, whereby the landlord (or its agent) retains the deposit monies and the scheme insures against the consequences of it being lost or misused. The second is a custodial scheme where the deposit is actually paid out by the landlord to, and thereafter held by, the scheme provider. My|deposits is an example of the first type of scheme. TDS Custodial is as its name suggests an example of the second.

Section 213 (in so far as it is material to this appeal) provides that:

“(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.

…

(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.”

The Act prescribes two different consequences for a failure to comply with the provisions of Section 213. The first is financial; Section 214 provides that a court can on application by a tenant order repayment of the deposit (or direct placement in an appropriate scheme) and must order the landlord to pay to the tenant an amount not less than the deposit and not more than three times that amount. The second affects the ability of the landlord to determine the tenancy. Section 215 provides that, subject to certain exceptions:

“(1)

Subject to subsection (2A), if (whether before, on or after 6 April 2007) a tenancy deposit has been paid in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy at a time when the deposit is not being held in accordance with an authorised scheme.

(1A) Subject to subsection (2A), if a tenancy deposit has been paid in connection with a shorthold tenancy on or after 6 April 2007, no section 21 notice may be given in relation to the tenancy at a time when section 213(3) has not been complied with in relation to the deposit.

(2)

Subject to subsection (2A), if section 213(6) is not complied with in relation to a deposit given in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy until such time as section 213(6)(a) is complied with.”

In Superstrike the Court held that where a fixed term tenancy was succeeded by a statutory periodic one, the landlord was to be treated as having again ‘received’ the original deposit under the periodic tenancy and accordingly the provisions of Section 213 applied afresh. Parliament sought to reverse that result by enacting Section 215B. However, the operation of Section 215B is contingent upon the deposit continuing to be held under the same authorised scheme as applied at the outset of the fixed term.

There is in fact no ‘prescribed form’ for the purposes of Section 213(6) of the Act. The prescribed information is however set out in Article 2 of the 2007 Order. This provides that:

“(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;

…

(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;”

An appeal court can only interfere with the decision of the lower court where the Appellant can establish that it is wrong or unjust because of a serious procedural or other irregularity in the proceedings in the lower court. It will be reluctant to interfere with the findings of primary fact by the lower court, although this reluctance is tempered where those findings amount to inferences or are assessments of documentary evidence as opposed to oral testimony.

In his well-fleshed printed case and in his oral submissions, Mr McLeish argued that it is wrong to deem Section 213(5) as imposing a one-time obligation. He draws attention to the difference in wording between Sections 213(3) and 213(5), noting the use of the past perfect tense in the latter as pointing to the ‘status’ of having received a deposit. He also relies on the difference between the sanctions imposed by Sections 215(1A) and 215(2).

He argued that the obligation in Section 213(6)(b) is a separate obligation from the continuing duty to provide information relating to the authorised scheme applying from time to time. This is the only construction of the legislation that accords with its underlying purpose. Tenants need to know what scheme applies to their deposit at any given time rather than what the position may have been historically.

In reply, Ms Traynor argued that Sections 213(5) and (6)(b) cannot be read separately. There is no significance in the difference between the wording of Sections 213(3) and (5). If Section 213(5) was intended to be a continuing obligation, then this could have been made clear. She acknowledged that an underlying purpose of the legislation was that the tenant should know where their deposit was being held, although she stressed also the dispute resolution aspect. She argued that a purpose led approach did not allow the Court to legislate by way of statutory interpretation. If there is a lacuna in the legislation, then it is for Parliament to resolve it as was done in the case of Section 215B.

Turning to the cross appeal, Ms Traynor argued that the District Judge was wrong to find that the Appellant had nominated the new email address for any purpose other than the sending of rent demands. She argued that ‘any’ in Article 2(1)(g)(iv) of the 2007 Order means ‘any of’ rather than ‘if any’. In any event, the 2007 Order does not require that an email address be given and/or the information given can be valid even if one is not included.

She argued that the District Judge’s approach to this issue as set out in paragraph 48 of the transcribed judgment was wrong. The correct test, relying on Ayannuga v. Swindells [2012] EWCA Civ 1789, was to ask whether the substance of the required information had been provided. That had happened in this case and indeed the Appellant had been able to contact TDS Custodial.

I did not require Mr McLeish to address me on the factual issue. On the remainder of Ms Traynor’s submissions, he argued that it was not open to her to assert that the provision of an email address was not required at all as this had not been argued below. Whilst the District Judge may not have stated the test correctly in the first two sentences of paragraph 48 of the transcribed judgment, he goes on the apply the correct test as considered in paragraph 47. ‘Any’ in Article 2(1)(g)(iv) plainly means ‘if any’. The District Judge was correct to hold that the prescribed information had not been given.

The starting point in any exercise of statutory interpretation is that Parliament’s intention must primarily be derived from the words that appear in the Act. That said, it is clear that in construing those words the Court is not confined to a literal reading. It must have regard to the statutory purpose of the legislation under review in seeking to arrive at its true meaning (see R. (Quintavalle) v. Secretary of State for Health [2003] UKHL 13).

The task is to choose an available meaning which gives effect to the underlying purpose. It is not permissible to rewrite the legislation so that it accords with what the Court thinks Parliament meant to say. The difficulty that exists in applying these tests is graphically and relevantly illustrated by the judgments in Vision Enterprises Ltd v. Tiensia[2010] EWCA Civ 1224, in which cogent criticisms are made of the drafting of an earlier version of Section 213(3).

The overall legislative purpose behind Section 213 is the protection of tenants’ deposits (see Vision Enterprises). There can however be little doubt that a vital component of that overall purpose (and of equal importance – see Cox J in Suurpere v Nice [2011] EWHC 2003 (QB)) is ensuring that the tenant is provided with the information necessary to know where their deposit is held, how it is held and how to get it back at the end of the tenancy. This is manifest from the Act itself and from Article 2 of the Order.

With this in mind, it would on the face of it be an absurdity if a landlord could achieve nominal compliance with Section 213(5) by sending the information relating to scheme A within 30 days and then immediately thereafter switch the deposit to scheme B without informing the tenant. The tenant would in these circumstances be left back in precisely the position that the legislation is intended to avoid. That this is plainly not the intention of Parliament is in my judgment demonstrated by the wording of Section 215B(1)(f).

In my judgment, Mr McLeish is correct to argue that there is an important difference in wording between Sections 213(3) and (5). It cannot realistically be doubted that Section 213(5), read in isolation, is capable of giving rise to a continuing obligation to provide information relating to the authorised scheme applying from time to time.

I accept his submission that Section 213(5) is not dependent upon or cut down by Section 213(6)(b), read in the context of the legislative purpose. In my judgment, the purpose of Section 213(6)(b) is to provide a trigger for the payment of compensation under Section 214. It is to be noted that the sanction provided by Section 215 can be avoided by late compliance and for that purpose, the information provided would have to relate to the scheme then current, not that (if different) applying at the outset of the tenancy. For these reasons, I allow the appeal.

I now turn to the cross appeal. There is at the outset a curiosity that arises out of the wording of Sections 213(5) and 213(6)(a). The former requires, without qualification, that the tenant be provided with the prescribed information. The latter requires that the prescribed information be given in the prescribed form or in a form substantially to the same effect. These are on the face of it two different things. This point was not taken before me and I must recognise that the Court of Appeal in both Ayannuga v. Swindells [2012] EWCA Civ 1789 and Lowe [2025] EWCA Civ 857 (decided after the hearing of this appeal)proceeded on the basis that the qualification in 213(6)(a) applied to the information provided. In those circumstances, I approach the matter on the same basis.

I must also deal at this point with Mr McLeish’s submission that the argument that an email address is not required for validity was not advanced below. Whilst Counsel for the Respondent may not have presented his case in the stark terms used by Ms Traynor, he is recorded as having made the following submission:

“In this context Judge, we should look at the information as a whole in roman form [sic], if you look at the information as a whole, so it’s the name, address, telephone number and any email address, in fact and we should look at that information having regard to the purpose for which it’s provided which is the data should be used by the landlord or scheme administrator for contacting the tenant at the end of the tenancy. Now, by providing the name of the tenant, the first email address and mobile number and then the correct address or postal address, conveying that information means that the substance of the information that was required to be conveyed has been conveyed.”

It does appear that Counsel subsequently conceded that on a ‘strict construction’ a failure to provide any email address would be a breach, but this does not seem necessarily to cut against the submissions made by Ms Traynor which address a purposive construction. In any event, this is in my judgment a pure point of law and one which simply expands upon that already argued. Mr McLeish did not seek additional time to respond and I see no other prejudice that would have justified me in refusing permission.

So far as the prescribed information is concerned, the Court of Appeal in both of the cases referred to in paragraph 28 above endorsed the observations of Cox J in Suurpere as follows:

“Judges who have to determine the extent of a landlord’s compliance with these provisions will always need to consider whether the prescribed information has been supplied to the tenant, in addition to the question of protection of the deposit. The list of particulars to be provided is detailed and specific. The requirement for landlords to provide such detailed information, together with the sanction for non-compliance, demonstrate the importance attached to the giving of particulars, certified as accurate by the landlord, which will enable tenants to understand how the scheme works and how they may seek the return of their deposit.”

In Ayannuga Lewison LJ described the application of the ‘substantially to the same effect’ test in these terms:

“The approach that we must take is clearly laid down by this court in Ravenseft Properties Limited v Hall to which Etherton L.J. has referred. We must compare the form or information prescribed on the one hand and the information in fact supplied on the other. We must then ask, in the light of the purpose of the notice or the provision of information, whether the substance of the information has been supplied bearing in mind that that is a matter of fact and degree.”

I can start by rejecting Ms Traynor’s submissions in respect of the email dated 29 January 2019. Whilst the email was sent in response to a rent demand and therefore referred to such demands in context, the statement that she could not receive further emails to the original email address could only have been understood as a change for all purposes. I also reject her submission regarding the meaning of ‘any’ in Article 2(1)(g)(iv); this word is plainly used in its sense of ‘if any’.

However, there is in my judgment more traction to other aspects of her submissions. In my judgment, the District Judge plainly addressed the wrong question at the start of paragraph 48 of his judgment. The question is not whether the email addresses were substantially to the same effect, but whether the information given was as a whole substantially to the same effect as that prescribed having regard to the purpose for which it is required.

It is important to stand back and take account of the fact that this information is being supplied to the tenant. The information required by Articles 2(1)(a) – (f) is information which the tenant will not necessarily have knowledge of. The information required by Article 2(1)(g) will (or should) all be within the knowledge of the tenant already. The purpose of this information is not to tell the tenant something she already knows. It is to enable the tenant to check that the information provided to the scheme provider is correct (see Lowe). The purpose of the information relating to the tenant is as stated in Article 2(1)(g)(iv) itself.

It is obvious with the qualification in Section 213(6)(a) in mind that not every error or omission will cause a landlord to be in breach. If for example a mistake was made with a single digit of the tenant’s telephone number or postcode, it could not realistically be argued that Parliament intended the penal consequences of Sections 214 and 215 to be visited on the landlord. This would as Asplin LJ observed in Lowe “…have the potential to increase disputes rather than to avoid them and facilitate their resolution” and thus run contrary to one of the purposes of the legislation.

In this case, it has not been suggested that the other information provided in relation to Article 2(1)(g)(iv) was incorrect or missing. This included importantly the Appellant’s telephone number. Accordingly, there was a means of contacting the Appellant at the end of the tenancy (the provision of the postal address being rather unhelpful in this respect) even if the email address was no longer in use.

In my judgment, applying the test in Section 213(6)(a) rather than the one applied by the District Judge, the information was substantially to the same effect as that prescribed and accordingly the cross appeal is allowed. It follows by way of outcome that although I allow the appeals of both parties, the order of the District Judge will remain undisturbed.