Merryck Lowe v The Governors of Sutton's Hospital in Charterhouse [2025] EWCA Civ 857

[2025] EWCA Civ 857

Case No CA 2024 000808

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

HIGH COURT BUSINESS & PROPERTY COURT

Mr Justice Adam Johnson

CH 2022 000228

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 10 July 2025

Before

LADY JUSTICE ASPLIN

LADY JUSTICE NICOLA DAVIES

LADY JUSTICE ANDREWS

Between

MR MERRYCK LOWEAppellant

THE GOVERNORS OF SUTTON'S HOSPITAL IN CHARTERHOUSERespondents

Tom Morris (instructed by Mishcon de Reya LLP) for Appellant

Shomik Datta (instructed by Stone King LLP) for Respondents

Hearing Hearing dates: 19 June 2025

Approved Judgment

This judgment was handed down remotely at 10.30am on 10 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

.............................

[1]This appeal raises two questions in relation to the regime which applies to deposits in relation to assured shorthold tenancies under the Housing Act 2004 (the “2004 Act”). The first is whether Article 2(1)(g)(vi) of the Housing (Tenancy Deposits) (Prescribed Information) Order 2007 (the “2007 Order”) which requires information to be provided as to the circumstances in which all or part of the deposit can be retained by the landlord by reference to the terms of the tenancy can be satisfied where reference was made to a clause in a tenancy agreement which was not attached and the number of which differed from the clause referring to deposits in the actual tenancy agreement (the “Information Ground”). The second is whether it is sufficient for the purposes of Article 2(1)(g)(vii) of the 2007 Order if a covering letter is signed by the landlord although the enclosed certificate is not signed and the tenant has not had an opportunity to confirm the accuracy of the contents before the certification by the landlord (the “Confirmation Ground”). An ancillary question arises as to whether the Information Ground can be relied upon as it was not pleaded.

[2]These issues arise in the wider context of a landlord and tenant dispute, in which the Respondent landlord, the Governors of Sutton’s Hospital in Charterhouse, (“Charterhouse”) has sought possession of Flat 2, Preachers Court, Charterhouse, London EC1M 6AU (the “Flat”) from the Appellant, Mr Lowe. In turn, Mr Lowe began these proceedings pursuant to section 214 of the 2004 Act alleging breaches in relation to deposit requirements.

[3]Charterhouse first granted Mr Lowe a tenancy of the Flat on 24th January 2010 for a one year fixed term from 4 January 2010, rolling over on a monthly basis from the end of the term. Mr Lowe paid a deposit of £3,300 in advance. At the date of the grant of the tenancy, the level of the rent meant that the tenancy was not an assured (shorthold) tenancy because it was above the threshold in paragraph 2(1)(b) Schedule 1 Housing Act 1988. It had not been necessary, therefore, to comply with the tenancy deposit protection provisions in Chapter 4 of the 2004 Act. On 1 October 2010, however, the Assured Tenancies (Amendment) (England) Order 2010, SI 2010/908 (the “2010 Order”) came into force amending the thresholds. This had the effect of converting Mr Lowe’s contractual tenancy into an assured (shorthold) tenancy as at that date by operation of law. As a consequence the tenancy deposit protection provisions in the 2004 Act applied to it.

[4]In preparation for the commencement of the 2010

Signed by the Tenant

[5]Mr Lowe has remained in occupation of the Flat ever since under a series of informal arrangements and further statutory tenancy, the details of which are not relevant for these purposes. In June 2021, after Charterhouse had served a notice seeking possession of the Flat from Mr Lowe, he issued these proceedings seeking some £120,888 for alleged breaches of the tenancy deposit legislation in the 2004 Act.

Relevant legislation

[6]Before considering the issues raised in this appeal it is helpful to have the relevant statutory provisions in mind. Chapter 4 of the 2004 Act contains detailed provisions requiring the protection of deposits paid by assured shorthold tenants and the provision of prescribed information as to how the deposits have been protected and the circumstances in which deductions can be made or they can be forfeited.

[7]Section 212(1) of the 2004 Act provides that the Secretary of State 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) defines “tenancy deposit schemes” for the purposes of Chapter 4 of the 2004 Act. It 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, and (b) complies with the requirements of Schedule 10.”

Section 213, where relevant, provides as follows: “(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. … (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.” (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.

[8]The information prescribed by section 213(5) of the 2004 Act is found in the 2007 Order. Article 2 is as follows:

“(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.” (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.”

[9]Failure to comply with the deposit provisions is addressed in section 214 of the 2004 Act. The tenant may make an application to the county court on a variety of grounds, including that section 213(6) has not been complied with. If the tenancy has not ended and the court is satisfied that section 213(6) has not been complied with, the court must order the landlord to pay the tenant a sum of money which is not less than the deposit and not more than three times the amount of the deposit within 14 days of the court

[10]The Explanatory Memorandum to the 2007 Order, 2007, No. 797 was prepared by the Department for Communities and Local Government and was laid before Parliament. Paragraph 7.1 states that the tenancy deposit protection provisions in the 2004 Act have two main aims. They are: to safeguard tenancy deposits; and to facilitate the resolution of disputes arising in connection with such deposits. At paragraph 46 of the Full Regulatory Impact Assessment it states that:

“. . . A landlord should set out in clear terms the basic purpose of the deposit. This should help to clear up misunderstandings and lead to fewer disputes as both parties will have the same understanding of what the deposit is for.”

At paragraph 48 it is explained that it would make sense for the landlord to be required to ask the tenant to sign the information to verify those aspects that the tenant has provided which would help to ensure that the document is an accurate record. Paragraph 50 states that the provision of the information should not be onerous and paragraph 51 provides that:

“The landlord will have the option of providing the prescribed information within the written tenancy agreement, rather than on a prescribed/separate form. This will have the added benefit for both tenants and landlords of reducing duplication and the amount of paperwork that needs to be completed at the beginning of the tenancy.”

Of course, this option was not open to Charterhouse because Mr Lowe’s tenancy agreement was not subject to the deposit requirements when it was granted. Paragraph 59 emphasises that the information will provide tenants with confidence that the deposit is safeguarded as well as the procedures that are available at the end of the tenancy.

The Judgments below

[11]The trial judge, HHJ Luba KC, structured his judgment around the agreed issues, many of which are no longer relevant. He decided that Charterhouse had complied with the statutory requirements and dismissed Mr Lowe’s claim. In summary, where relevant to us, he held that:(i) it did not matter that the Certificate (the document containing the Prescribed Information) referred mistakenly to clause 6 of a tenancy agreement which was not attached because it must have been obvious to Mr Lowe that the reference to clause 6 was a mistake and he would have known to look to clause 5.3 in his own tenancy agreement which was headed “Deposit” and on a proper view of the Certificate, construed from the perspective of a reasonable person in Mr Lowe’s position, the Prescribed Information was supplied. Alternatively, if he was wrong about that it was sufficient that the information was “substantially to the same effect” pursuant to section 213(6)(a) of the 2004 Act [135] – [137]; and

(ii) it did not matter that the Certificate was not itself signed by Charterhouse because it was sufficient to comply with the statute that the covering letter was so signed. Again, alternatively, any deficiency was addressed by the language of the statute which validates performance if it is “substantially to the same effect” as sending a signed certificate [128] - [130].

[12]The trial judge dealt with the question of whether the Letter and enclosed Certificate had been given to Mr Lowe at [85] – [112] under agreed issue 3. He decided that he was satisfied that the Letter from Daniel Watney to Mr Lowe had been prepared by Mr Birtwistle and had been despatched [101]. Furthermore, it had been received by Mr Lowe. He stated that it was “a strong thing, in a case in which A asserts something was posted to B and B contends that he did not receive it, to find that a Court is satisfied that in fact the documentation was received.” He did so, nevertheless and stated that he was not able to treat Mr Lowe as a reliable witness for this purpose [107] and [108]. Having considered further evidence, the trial judge found, at [112], that the Letter with its enclosures had been given to Mr Lowe.

[13]He then turned to the fourth agreed issue which was whether the Letter and enclosures gave Mr Lowe the necessary prescribed information in accordance with the 2007 Order, or substantially to the same effect in accordance with section 213(6) of the 2004 Act.

[14]The trial judge noted that Mr Lowe’s pleaded case relied upon four alleged wants of compliance. The first three allegations are no longer directly relevant to us. I will set them out for the sake of completeness. They were: whether the requirements had been met in relation to an additional sum of £700 odd; whether Mr Lowe had been provided with any information at all in relation to the £3,300 deposit; and thirdly, that Mr Lowe had not been provided with the booklet entitled “What is the Tenancy Deposit Scheme”. The trial judge: was not satisfied that there was an additional deposit of £700 odd [73] – [82]; was satisfied that the Letter and its enclosures had been given to Mr Lowe, as I have already mentioned [85] – [112] and [119]; and was also satisfied that the booklet had been given to him [120].

[15]The fourth pleaded alleged want of compliance was the failure to give signed certification in respect of the prescribed particulars. When addressing that issue at [122] – [130], the trial judge stated at [123] that “[F]or the reasons already given, I am satisfied that sub-sub-article (bb) was met by the provision to Mr Lowe in September 2010 of the enclosure “A. Prescribed Information” with the invitation by covering letter that he signs and return it.” That appears to be a reference back to the trial judge’s consideration of whether the Letter and Certificate had been given to Mr Lowe under agreed issue 3.

[16]The remainder of the analysis relates to whether there was compliance with sub-sub-article (aa) – confirmation (in the form of a certificate signed by the landlord) that the information provided by the landlord under the sub-paragraph was accurate to the best of his knowledge and belief.

[17]In relation to the Certificate, the trial judge noted that the first of the signatures intended to appear was that of the tenant and that he had found that the unsigned certificate was supplied to the tenant to sign under cover of the Letter inviting signature and return. He added at [128] that “[A]s a matter of logic, one would expect that the next signature, that of the landlord, would then be entered, on return, after receipt from the tenant of the form signed by him.” He went on also at [128]:

“Here the form was received by the tenant (as I have held) but not returned. So, it is by the tenant's failure, not the landlord's, that there is no version which bears the landlord's signature.”

[18]He also added that more importantly, “. . . the recipient knew who had sent him the document, who had signed the covering letter, and that the covering letter asserted that what was enclosed was “The ‘Prescribed Information’ as required under the legislation”.” As a result the trial judge decided that “. . . the statutory objective had been achieved. The prescribed information had been given by the landlord's agent as a specified enclosure to a document signed by an identified individual member of staff of the agent. The certificate and booklet gave the tenant all the information the statute required. It fulfilled the statutory purpose” [129]. As I have already mentioned, he went on at [130] to decide that this was “either satisfaction of the statutory requirements by the route of the form of certificate being “substantially to the same effect” as that required, or it is saved by the application of a sensible, purposive, and constructive approach to the interpretation of these prescriptive statutory requirements, . . .”

[19]The trial judge also noted at [131] of his judgment that Mr Brown, who represented Mr Lowe before him, had taken an additional point that there was a further and distinct want of compliance but that it had not been pleaded. It was whether article 2(1)(g)(vi) had been complied with. The trial judge stated that the matter had been fully argued, that Mr Datta, on behalf of Charterhouse, was able to deal with it and accordingly, he would entertain it. He then addressed the issue at [132] – [148] of his judgment. I have summarised his conclusions at [11(i)] above.

[20]As I have already mentioned, the trial judge dismissed Mr Lowe’s claim. Mr Lowe appealed on ten grounds. Adam Johnson J dealt with all of the grounds in a comprehensive and careful judgment. He dismissed the appeal.

[21]The judge held that the trial judge had been correct to decide that the Prescribed Information contained in the Certificate, properly construed, gave Mr Lowe the information he needed. He disagreed with the trial judge, however, that even if that was not the case, Mr Lowe was given information “substantially to the same effect”, in accordance with section 213(6) of the 2004 Act [19] and [20].

[22]The judge applied the reasoning in Mannai Investments v Eagle Star [1997]AC 749 and Pease v Carter

[2020] 1 WLR 1459

. He noted that the court has to balance the requirement for proper compliance with the statute with a practical approach to the treatment of obvious errors which cause no real prejudice [21]. At [23] he concluded that the trial judge had applied those principles and reached a correct conclusion which was open to him. He set out what he decided had been the trial judge’s logic also at [23]:

“i) A reasonable person in the position of Mr Lowe would have appreciated that the Prescribed Information Document contained an error: and obviously so, because it referred to Clause 6 of a different tenancy agreement altogether than the one he in fact had. ii) The same reasonable person would have understood what meaning the Prescribed Information Document was in fact intended to convey, which was to say that the required information (as to the circumstances in which the whole or part of the deposit may be retained by the landlord) could be found in a corresponding term in the tenancy agreement he did have. It would not have taken long to find it, in cl. 5.3. iii) The Prescribed Information Document so construed satisfied the statutory requirement, which was to notify the tenant of the circumstances in which all or part of the deposit might be retained by the landlord. Those circumstances were set out in cl. 5.3, which defined the landlord’s rights to make deductions from the deposit and the tenant’s right to recover it.”

[23]The judge’s conclusion in this regard was as follows: “24. In my opinion, this analysis by the Judge was correct. Another way of looking at it is to say that the statutory purpose was fulfilled. The relevant part of the statutory purpose is to avoid disputes by promoting the provision of information about what rights a landlord and tenant have under their tenancy agreement in relation to any deposit. That purpose was achieved here, because on a proper construction of the Prescribed Information Document, the tenant was told, you can find those rights spelled out in the provision in your tenancy agreement which deals with the treatment of your deposit. And so he could, in cl. 5.3, headed “Deposit”.

[24]He also rejected the point made by Mr Datta, on behalf of Charterhouse, that the argument in relation to Article 2(1)(g)(vi) had not been pleaded and that Mr Lowe ought not to have been allowed to raise it at trial. He concluded at [26] that the trial judge had been entitled as a matter of case management to deal with the issue on its merits. He added that “[T]he Judge plainly took the view he had all the factual material likely to have a bearing on the new complaint, and was satisfied it had been fully argued, and so felt he was able to deal with it fairly. Mr Datta has not persuaded me that the Judge was wrong to do so.”

[25]The judge held, however, that the trial judge had been wrong to rely, in addition, upon section 213(6) of the 2004 Act which provides that the information required by subsection (5) must be given to the tenant and any relevant person “(a) in the prescribed from or in a form substantially to the same effect . . .” His reasoning was thus:

“32. I am not persuaded by Mr Morris’ argument. It is a clever point but respectfully I consider that it proceeds on a false premise. Its logic is to say that because only compliance with sub-paragraph 2(1)(g)(vii) can be saved by the words “substantially to the same effect”, the earlier parts of paragraph 2 in effect require strict compliance, with no room for flexibility. I think that is looking at it the wrong way round. The right way to look at it is that it is only sub-paragraph 2(1)(g)(vii) needs the flexibility of the saving words (“substantially to the same effect”), because that is the only part of para. 2 which even appears to be (sic) require strict compliance. The earlier parts do not. They are not prescriptive as to form, including as to use of any particular phraseology. All they require is the provision of information, in whatever form and however expressed. Viewed in that way, it seems to me that Mr Morris’ argument would give rise to a logical inconsistency, because it would mean that one could legitimately apply a degree of flexibility in determining whether there was compliance with the one part of the 2007 Order which on its face is mandatory (sub-paragraph 2(1)(g)(vii)), but could not be similarly pragmatic in assessing whether there was compliance with the earlier parts of the 2007 which are not mandatory.”

The judge was fortified in his conclusion by Ayannuga v Swindells [2012] EWCA Civ 1789.

[26]He concluded at [35] that Mr Morris had been correct to say that the trial judge’s reasoning was flawed to the extent that he relied upon section 213(6)(a) (“substantially to the same effect”) in relation to article 2(1)(g)(vi) because it is not concerned with form. He stated, however, that it made no difference because the conclusion that the trial judge came to in relation to article 2(1)(g)(vi) was that on any view the substance of the required information had been supplied, because Mr Lowe had been told that he could find information about the possible retention of his deposit in the terms of the tenancy agreement which he already had. The statutory purpose, of promoting transparency with a view to avoiding disputes, was therefore satisfied.

[27]The judge also considered that the trial judge had reached the correct conclusion in relation to the Confirmation Ground. It was agreed that whether the landlord’s certificate had been signed was a matter of form falling within section 213(6) of the 2004 Act. The Certificate was not signed and accordingly, the requirements as to form were not met. However, the judge held that the trial judge had been correct to hold that the documentation was in a “form substantially to the same effect”.

The judge went on at [43]:

“Here as it seems to me – and I understood Mr Morris to agree - the statutory purpose behind the certification requirement in sub-paragraph 2(1)(g)(vii) the 2007 Order is to provide confirmation on behalf of the landlord that someone has turned their mind to the matter of supplying the tenant with the information required under sub-paragraphs 2(1)(g)(i)-(vi). Here, that had happened, and obviously so since the required information was that contained in the Prescribed Information Document which was sent to the tenant. Looking at the overall context, it does not seem to me it matters that the Prescribed Information Document itself was not signed in this case. Plainly, the certificate it contained was one the landlord was happy with and was content to give, or have Daniel Watney give on its behalf. By allowing the proposed certificate to be sent under cover of Daniel Watney’s letter, Charterhouse was saying as much.”

[29]He then addressed the requirement in para 2(1)(g)(vii)(bb) to give the tenant the opportunity to sign the document supplied to him containing the prescribed information at [44] – [52]. He stated at [44] that the course of action set out in Daniel Watney’s letter, asking the tenant to sign first was obviously intended to give the tenant the opportunity to sign which the statute required and then to allow the landlord in turn to sign, in the light of the tenant’s confirmation. He went on to conclude that the trial judge had been wrong to emphasise what he perceived to be the tenant’s failure to sign but that the trial judge had identified the issue of whether the statutory purpose had, in substance, been achieved. The judge held that it had:

“47. . . It seems to me that it had, because in sending the letter and Prescribed Information Document, what Charterhouse was effectively saying was: Here is the information we are required to give you, and the certificate you are entitled to receive; we are happy to give the certificate in this form, but one thing we need to do is to give you the opportunity to review what we are sending you, so please do so and let us know when it is done; but as far as we are concerned everything is in order and we are happy to give the certificate the 2007 Order requires.”

At [48] he added:

“If that is the right way of construing the letter and the Prescribed Information Document taken together, as I think it is, then is (sic) seems to me that the statutory purpose of requiring confirmation in the form of a certificate from the landlord was achieved. Taken together, the signed covering letter and the Prescribed Information Document were “substantially to the same effect” as a signed certificate, because Charterhouse were effectively saying: as far as we are concerned, we believe we have done what we need to and we are happy to confirm as much by means of a certificate. I fail to see why that is not “substantially to the same effect” as having provided a signed certificate.”

[30]The judge concluded that the trial judge had read the covering letter and the Prescribed Information Document together along with the enclosures to the letter and that that was the correct approach and the same approach as had been taken in Stidolph v American School in London Educational Trust Ltd.

[1969] 20 P&CR 802

[50]. He spelt out the logic at [51] in the following way:

“. . . If the Prescribed Information Document and the covering letter are read together, then the contents of the former were sufficiently authenticated by the signature on the latter, because that signature in effect confirmed that the landlord was content that it was providing the required information and as far as it was concerned was content to certify that it had done what was required.”

[31]Lastly, as to the matters with which we are concerned, the judge held at [52] that he saw nothing in the ground that the Certificate was also deficient in certifying the accuracy of the information provided by Charterhouse because that information was inaccurate in relation to “Clause 6 of the Tenancy agreement attached”. He held that if the information provided was properly construed in the manner he had suggested, it was not inaccurate and not substantially so. To put the matter another way, “if the information supplied was sufficient to fulfil the statutory purpose and thus to comply with the statutory requirements, then the certificate of compliance must have been properly given as well.”

The Grounds

[32]The grounds of appeal overlap. They both go to whether the requirements of Article 2(1)(g) were met. Was the information provided sufficient for the purposes of sub-sub-article (vi) (the “Information Ground”) and was it confirmed in the manner required in sub-sub-article (vii) (the “Confirmation Ground”). If the information provided does not satisfy Article 2(1)(g)(vi) the Certificate will have been invalid. However, if Article 2(1)(g)(vii) is not satisfied because the Certificate was not signed by Charterhouse as to the accuracy of the information provided and Article 2(1)(g)(vii)(bb) which relates to the opportunity for the tenant to check the accuracy of the information was not fulfilled, there will have been no certificate at all. The proper application of MannaiInvestments v Eagle Star as subsequently interpreted is relevant to both grounds of appeal.

Information Ground and the Respondent’s Notice

[33]I will turn to the Information Ground first. Before doing so, I must address Mr Datta’s Respondent’s Notice point. He says, albeit without a great deal of enthusiasm, that the trial judge should not have entertained the argument that the information provided did not satisfy the requirements of Article 2(1)(g)(vi) because reference was made to a tenancy agreement which was not attached and to clause 6 of that agreement which also did not exist, because the point had not been pleaded and that, in turn, the judge was wrong to deal with it in the way he did at [25] – [27] of his judgment.

[34]This is a short point. It seems to me that the judge was correct to take the view he did. Although this issue was not pleaded and was raised for the first time in Mr Lowe’s witness statement for trial and only addressed squarely in counsel’s skeleton argument for the trial, the trial judge was entitled to take the view he did. The question of whether to allow the issue to be argued was a case management decision and the trial judge’s approach was well within the proper ambit of the exercise of that discretion. As the judge explained at [26] although the point was not pleaded the trial judge took the view that it had been fully argued and that Mr Datta was able to deal with it and the matter could be dealt with fairly.

[35]Further, Mr Datta has not been able to point to further factual investigations or documents which could not be undertaken and which would have been relevant to this point. Mr Datta now submits that Charterhouse suffered some prejudice in not having the opportunity to cross examine Mr Lowe about his knowledge of the terms of his tenancy agreement given that subjective knowledge may be of some relevance: Northwood Solihull Ltd v Fearn

[2022] 1 SLR 1661

and A1 Properties (Sunderland) Ltd v Tudor Studios RTM Co Ltd

[2024] 3 WLR 601

[36]It seems to me that this is water which has long since flowed under the bridge. The trial judge’s case management decision was made having considered the relevant factors in the light of the way in which the matter was put before him and the judge was right to conclude that that was a decision which should not be disturbed. The matter had been fully argued and it was not suggested that any prejudice had been suffered. Mr Datta’s submission before us as to prejudice is a new one which, in any event, does not take him very far in the light of the fact that the trial judge had found that Mr Lowe had a copy of his tenancy agreement which he had countersigned.

[37]What of the Information Ground itself? Was Article 2(1)(g)(vi) satisfied despite the reference to clause 6 of a tenancy agreement which was not attached? Mr Morris submitted first, that the sub-sub-article requires the landlord to set out the circumstances which relate to the deposit and that accordingly, reference to a clause in a tenancy agreement could never have been sufficient although he put very little emphasis upon this submission. Secondly, he submitted that reference to a non-existent clause 6 in a tenancy agreement which had not been enclosed could not satisfy the sub-sub-article because the prescribed information had not been provided at all. This was closely linked with his third and alternative submission that reliance cannot be placed upon the Mannai case in order to construe the reference to clause 6 in the Prescribed Information as a reference to clause 5.3 of Mr Lowe’s tenancy agreement. Fourthly, he submitted that even if that were the case, a reference to clause 5.3 would still be insufficient because it does not contain all the relevant information.

[38]It seems to me that Mr Morris’ first submission that reference to a clause in a tenancy agreement could never be enough is to interpret Article 2(1)(g)(vi) too literally. If it is read as a whole in the light of the Article as a whole and with the statutory purpose in mind, it seems to me that it requires information to be given about the circumstances when all or part of the deposit may be retained by reference to the terms of the tenancy (emphasis added). It does not require the circumstances to be set out separately, on the contrary information about the circumstances are to be given “by reference” to the tenancy. It seems to me, therefore, that reference to a provision in the tenancy agreement is sufficient and fulfils the statutory purpose. It is also consistent with the Explanatory Memorandum to the 2007 Order although I do not place a great deal of weight on the Memorandum. It states that provision of the information should not be onerous (paragraph 50) and that in most cases, unlike this one, where the deposit provisions apply from the beginning of the tenancy, the prescribed information could be provided within the tenancy agreement itself, reducing duplication (paragraph 51).

[39]What of Mr Morris’ second submission that the prescribed information was not provided at all? He took us to Ayannuga v Swindells in this regard. The importance of information to be provided to a tenant and the means by which it should be supplied is dealt with at some length in that case, albeit in a slightly different context. It was concerned with a failure to supply the information required by Article 2(1)(c) - (f) rather than (g). Those sub-sub-articles are concerned with the procedures that apply under the deposit protection scheme at the end of the tenancy by which an amount may be paid or repaid to the tenant in respect of the deposit, where the landlord or the tenant are not contactable or where there is a dispute about the amount to be paid or repaid to the tenant in respect of the deposit and the facilities available to resolve such a dispute. Etherton LJ, as he then was, with whom Lewison LJ agreed, stated as follows:

“26. I am quite satisfied, in the light of the very helpful and skilful submissions of Mr Watkinson, that there was a failure to comply with each of paras (c), (d), (e) and (f) of the Housing Order. It is true that the tenancy agreement and the Additional Information Document addressed the procedure that was to apply if and when the tenancy came to an end and the deposit had to be returned, taking into account any outstanding liabilities to the respondent. It is clear from those provisions in the tenancy agreement, however, that they do not address, as is required under paras 2(1)(c) and (d) of the Housing Order, the procedural provisions in the scheme itself. The provisions in the tenancy agreement, and indeed those in the Additional Information Document, dealing with the return of the deposit at the end of the tenancy proceed on the hypothesis that the deposit has been retained by the respondent’s agent as stakeholder and that the agent and the respondent himself can decide how and what to do with the deposit. This being a custodial scheme, however, the deposit was not held by either the respondent’s agent or the respondent himself but was properly paid to the administrator of the scheme. What is required, therefore, to be provided under the Housing Order, but has not been provided in this case, is information relating to the scheme’s procedures for the return of the deposit in the circumstances specified in paras 2(1)(c) and (d) of the Housing Order. 27. It is no answer for the respondent to assert that the information could have been obtained by the appellant making her own enquiries by means of the internet or telephoning the respondent’s agent or the scheme’s administrator or in some other way. Section 213(5) of the 2004 Act requires the information to be provided by the landlord.”

Etherton LJ also went on to address the question of whether there had been substantial compliance in that case, as follows:

“29. It is common ground that the appropriate test to apply in deciding whether or not there has been substantial compliance with the requirement to provide information, as specified in s.213(6)(a), is one of fact and degree: see Ravenseft PropertiesLtd v Hall [2001] EWCA Civ 2034; [2001] H.L.R. 33. That was a case about whether a notice under s.20 of the Housing Act 1988 giving notice that the tenancy about to be entered into was an assured tenancy was “substantially to the same effect” as that prescribed by the Assured Tenancy and Agricultural Occupancies (Forms) Regulations 1988 (SI 1988/2203). Mummery L.J. said: “11. … In my judgment, however, a detailed analysis of each decision is not a profitable exercise: the question whether a notice under section 20 is in the prescribed form or is in a form ‘substantially to the same effect’ is a question of fact and degree in each case, turning on a comparison between the prescribed form in Annex 1 and the particular form of notice given … . 27. … The question is simply whether, notwithstanding any errors and omissions, the notice is ‘substantially to the same effect’ in accomplishing the statutory purpose of telling the proposed tenant of the special nature of an assured shorthold tenancy.” 30. As I have said, I consider that the categories of information in paras 2(1) (c)–(f) of the Housing Order are important and of real significance to the tenant. I endorse the view expressed by Cox J. in Suurpere v Nice [2011] EWHC 2003 (QB); [2011] 39 E.G. 110 when she said as follows at [41]: “Although the primary focus in the cases involving these statutory provisions has so far been on the deposit, it is clear that a landlord’s obligations under this part of the 2004 Act are twofold. Parliament regards the landlord’s obligation to provide the prescribed information as being of equal importance to his duty to safeguard the tenant’s deposit. 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.””

As I have already explained, that was a case in which the requisite information was not supplied at all. “29. It is common ground that the appropriate test to apply in deciding whether or not there has been substantial compliance with the requirement to provide information, as specified in s.213(6)(a), is one of fact and degree: see Ravenseft PropertiesLtd v Hall

[2001] EWCA Civ 2034

; [2001] H.L.R. 33. That was a case about whether a notice under s.20 of the Housing Act 1988 giving notice that the tenancy about to be entered into was an assured tenancy was “substantially to the same effect” as that prescribed by the Assured Tenancy and Agricultural Occupancies (Forms) Regulations 1988 (SI 1988/2203). Mummery L.J. said:

“11. … In my judgment, however, a detailed analysis of each decision is not a profitable exercise: the question whether a notice under section 20 is in the prescribed form or is in a form ‘substantially to the same effect’ is a question of fact and degree in each case, turning on a comparison between the prescribed form in Annex 1 and the particular form of notice given … . 27. … The question is simply whether, notwithstanding any errors and omissions, the notice is ‘substantially to the same effect’ in accomplishing the statutory purpose of telling the proposed tenant of the special nature of an assured shorthold tenancy.” “Although the primary focus in the cases involving these statutory provisions has so far been on the deposit, it is clear that a landlord’s obligations under this part of the 2004 Act are twofold. Parliament regards the landlord’s obligation to provide the prescribed information as being of equal importance to his duty to safeguard the tenant’s deposit. 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.””

[40]Kahlon v Isherwood

[2011] EWCA Civ 602

[2011] HLR 38

was concerned with similar failure to provide information. The question in that case was whether a notice in the prescribed form in accordance with the Housing Act 1988 Schedule 2A, para 7 had been served on the tenant before a tenancy agreement was entered into. The relevant regulations prescribed the form of the notice or “a form substantially to the same effect”. A separate notice had not been served and the landlord sought to rely upon a paragraph in the schedule to a Tomlin order to the effect that the parties would execute an assured shorthold tenancy agreement commencing on a specified date in the form annexed and to be signed by the parties not later than a particular date. The parties did sign a tenancy agreement in that form.

[41]Patten LJ, with whom Stanley Burnton and Rix LJJ agreed, held that the notice had not been provided in the prescribed form or substantially to the same effect. In particular, he stated at [21] that “where a provision in the prescribed form is clearly part of the substance of the notice . . . it is no answer to its omission to say that the information it conveys was well known to the tenant at the relevant time.” He also noted at [22] that matters of substance which were an essential part of the notice were omitted from the paragraph in the Tomlin order and there was nothing which remotely corresponded to them. Accordingly, it could not be said that the paragraph was in a form substantially to the same effect as the prescribed form.

[42]Mr Morris says that there is an omission of substance in this case because there was no clause 6 nor was there a tenancy agreement attached. This overlaps with Mr Morris’ third submission that the principle in Mannaiv Eagle which was distilled in Peasev Carter

[2020] 1 WLR 1459

and applied to notices and certificates under the 2004 Act and the 2007 Order in Northwood Solihull Ltd v Fearn, cannot be used to save the prescribed information by interpreting it in a way which would satisfy Article 2(1)(g)(vi) at the very least, by a reference to clause 5.3 of Mr Lowe’s tenancy agreement. He submitted that that principle is confined to obvious mistakes on the face of a document where it is also obvious what was intended. He relied on a number of authorities including York v Casey

(1998) 31 HLR 209

, Panayi v Roberts

(1993) 25 HLR 421

, Andrews v Brewer

(1997) 30 HLR 203

, Speedwell Estates Ltd v Dalziel

[2002] HLR 43

, Fernandez vMcDonald

[2004] 1 WLR 1027

and Spencer v Taylor

[2014] HLR 9

, OG Thomas v Turner

[2023] 2 P & CR 15

and Kahlon v Isherwood. All but the OG Thomas and Kahlon cases were addressed by Arnold LJ in his authoritative judgment in Peasev Carter.

[43]I have already mentioned the Kahlon case which was concerned with the failure to serve a notice and whether a paragraph in a Tomlin Order could be interpreted in a way which satisfied the relevant statutory requirements. Matters of substance which were essential parts of the notice had been omitted altogether.

[44]The OG Thomas case was concerned with a tenant who had assigned a tenancy of a farm to a company without informing the landlord. The landlord, who was unaware of the assignment, served a notice to quit addressed to the tenant personally. The question was whether the notice to quit was valid despite being addressed to the wrong person. Lewison LJ with whom both Nugee LJ and I agreed, held that the error was one which could not be corrected by the application of the principle in Mannai v Eagle. The right being exercised was the right to terminate a tenancy by giving notice to quit “to the tenant”. That had not been done [56]. At [15] – [17], Lewison LJ stated as follows:

“15. In Mannai Investment Co Ltd v Eagle Star Assurance Co Ltd [1997] A.C. 749 the House of Lords considered the validity of a notice given under a contractual break clause contained in clause 7 (13) of a lease. Such a clause is in the nature of an option. Those of their Lordships in the majority distinguished between formal requirements on the one hand, and requirements to impart information on the other. Lord Steyn at 767 referred to what he described as "indispensable" conditions for the effective exercise of the right. Among them was "service ("on the landlord or its solicitors")". Lord Hoffmann illustrated the difference graphically at 776: “If the clause had said that the notice had to be on blue paper, it would have been no good serving a notice on pink paper, however clear it might have been that the tenant wanted to terminate the lease. But the condition in clause 7(13) related solely to the meaning which the notice had to communicate to the landlord. If compliance had to be judged by applying the ordinary techniques for interpreting communications, there was strict compliance. The notice clearly and unambiguously communicated the required message.” 16. Lord Clyde said at 781: “The substance of the power is expressed by the words, ‘The tenant may … determine this lease.’ The method of its exercise is specified by the intervening words. The tenant must give six months' notice; the notice must be in writing; the notice must be served on the landlord or its solicitors. The sub-clause also states that the notice is to expire on the third anniversary of the term commencement date.” 17. It is, I think, clear from Mannai that if a notice fails to satisfy the substantive conditions upon which its validity turns, the question of how it is to be interpreted does not arise. In Trafford MBC v Total Fitness UK Ltd [2002] EWCA Civ 1513; [2003] 2 P. & C.R. 2 the question was whether a break clause had been validly exercised. Having referred extensively to Mannai, Jonathan Parker LJ (with whom Mummery LJ agreed) said at [49]: “The process of determining whether a notice complies with the requirements of the provision pursuant to which it is given (be that provision statutory or contractual) involves, as a first step, a consideration of what, on its true construction, the notice says. The contents of the notice then have to be matched against the relevant requirements in order to determine whether it meets them. Speedwell Estates and Burman make it clear that, at this second stage, there is no basis in either Carradine or Mannai for, in effect, rectifying any defects or omissions in the notice so as to bring it into line with the relevant requirements.” “If the clause had said that the notice had to be on blue paper, it would have been no good serving a notice on pink paper, however clear it might have been that the tenant wanted to terminate the lease. But the condition in clause 7(13) related solely to the meaning which the notice had to communicate to the landlord. If compliance had to be judged by applying the ordinary techniques for interpreting communications, there was strict compliance. The notice clearly and unambiguously communicated the required message.” “The substance of the power is expressed by the words, ‘The tenant may … determine this lease.’ The method of its exercise is specified by the intervening words. The tenant must give six months' notice; the notice must be in writing; the notice must be served on the landlord or its solicitors. The sub-clause also states that the notice is to expire on the third anniversary of the term commencement date.” “The process of determining whether a notice complies with the requirements of the provision pursuant to which it is given (be that provision statutory or contractual) involves, as a first step, a consideration of what, on its true construction, the notice says. The contents of the notice then have to be matched against the relevant requirements in order to determine whether it meets them. Speedwell Estates and Burman make it clear that, at this second stage, there is no basis in either Carradine or Mannai for, in effect, rectifying any defects or omissions in the notice so as to bring it into line with the relevant requirements.”

[45]In Pease v Carter, this court was concerned with the validity of notices served on tenants who occupied residential premises under an assured shorthold periodic tenancy. The tenants had fallen into rent arrears and on 7 November 2018 the landlord served notice of proceedings for possession under section 8 of the Housing Act 1988. By section 8(3)(b) of that Act, the notice was required to inform the tenant that the proceedings would not begin earlier than a date specified in the notice which, by section 8(4B), should not be earlier than the expiry of the period of two weeks from the date of service of the notice. As a result of a typographical error the date set out in the notice was 26 November 2017.

[46]Arnold LJ, with whom Underhill LJ concurred and Floyd LJ agreed, conducted a survey of the relevant authorities including Mannai v Eagle, and subsequent authorities in which it was considered. The Mannai case itself was concerned with two leases for a term of ten years commencing on 13 January 1992, provided that the tenant could determine the leases by service of not less than six months’ notice in writing on the landlord or its solicitors to expire “on the third anniversary of the term commencement date”, being 13 January 1995. The tenant served notices determining leases on “12 January 1995”. The majority of the House of Lords (Lord Steyn, Lord Hoffmann and Lord Clyde) held that the notices were effective for the reasons which were accurately summarised in the headnote, as follows:

“the construction of the notices had to be approached objectively, and the question was how a reasonable recipient would have understood them, bearing in mind their context; that the purpose of the notices was to inform the landlord of the tenant’s decision to determine the leases in accordance with the break clauses; that a reasonable recipient with knowledge of the terms of the leases and of the third anniversary date would have been left in no doubt that the tenant wished to determine the leases on 13January 1995 but had wrongly described it as 12 January. . .”

[47]Arnold LJ noted at [22] of his judgment, that York v Casey

(1998) 31 HLR 209

and Speedwell v Dalziel

[2002] HLR 43

establish that the Mannai v Eagle approach to interpretation is applicable to statutory notices but with the qualification that it remains necessary to consider whether the notice satisfies the relevant statutory requirements which involves considering the purpose of those requirements. It was accepted that that approach applies equally to the provision of information with which Article 2(1)(g)(vi) is concerned albeit that Mr Morris submits that the omission to sign the Certificate and the nature of the errors in relation to the information which the documents contained, to which I shall refer below, took them out of the scope of the decision in Mannai.

[48]Having set out a passage from the judgment of Mummery LJ in Ravenseft Properties Ltd v Hall

[2000] HLR 33

at [27], Arnold LJ concluded that even if a notice contains a mistake which is not obvious, it may still be possible to conclude that it is “substantially to the same effect” as the prescribed form having regard to the purpose of the statutory requirements, where such a provision applies. He repeated this at [29]. At [32] he also set out a passage from the judgment of Hale LJ, as she then was, in Fernandez v McDonald

[2004] 1 WLR 1027

at [20] which also addresses the application of the reasonable recipient test where the error is not obvious. Hale LJ, as she then was, stated as follows:

“20. . . [Counsel for the landlord] argued that the reasonable recipient test applies whether or not the error is obvious. . .. In my view, the obviousness or otherwise of an error is simply a factor in deciding what the reasonable recipient would understand by the notice. The more obvious it is that a slip has been made, the less likely is the reasonable recipient to be in any doubt as to what was meant.”

[49]Arnold LJ drew the following conclusions from the authorities:

“39 . . . (i) A statutory notice is to be interpreted in accordance with Mannai vEagle [1997] AC 749, that is to say, as it would be understood by a reasonable recipient reading it in context. (ii) If a reasonable recipient would appreciate that the notice contained an error, for example as to date, and would appreciate what meaning the notice was intended to convey, then that is how the notice is to be interpreted. (iii) It remains necessary to consider whether, so interpreted, the notice complies with the relevant statutory requirements. This involves considering the purpose of those requirements. (iv) Even if a notice, properly interpreted, does not precisely comply with the statutory requirements, it may be possible to conclude that it is ‘substantially to the same effect’ as a prescribed form if it nevertheless fulfils the statutory purpose. This is so even if the error relates to information inserted into or omitted from the form, and not to wording used instead of the prescribed language.”

He also stated at [45] that it is clear from York v Casey 31 HLR 209, that covering letters may be taken into account in determining how the reasonable recipient would interpret a statutory notice.

[50]It seems to me, therefore, that it is clear from the authorities that the principle in Mannai v Eagle is not confined to slips of the pen as Mr Morris would have it. In particular, this is made clear by Hale LJ in Fernandez v McDonald. As she put it, the obviousness or otherwise of the error is simply a factor in deciding what the reasonable recipient of the notice would understand by it.

[51]Furthermore, in my judgment, the principle can be applied to the circumstances of this case. This is not a case of pink rather than blue paper as Lord Hoffmann described it. Nor is it analogous to the circumstances in the OG Thomas case in which the notice had to be addressed to the tenant as a formal requirement and matter of substance. The very nature of the notice to quit in that case was that it be addressed to the tenant. Nor is it a situation such as that in the Ayannuga or Kahlon cases where there was no reference to the required information at all. In this case, the Prescribed Information made reference to a clause but contained an error in that regard.

[52]The principle in Mannai is available in this case and should be applied with Arnold LJ’s conclusions at [39] in Pease v Carter in mind. The Prescribed Information can be interpreted as it would be understood by a reasonable recipient reading it in context, having taken account of the statutory requirements, including the purpose of those requirements. Furthermore, if properly interpreted, the Letter, Prescribed Information and Certificate do not comply with the statutory requirements, it may be possible to conclude that they are “substantially to the same effect” in circumstances in which section 213(6)(a) of the 2004 Act applies.

[53]Before turning to the Prescribed Information, what of the statutory context? It seems to me that Article 2(1)(g)(vi) should be construed purposively with its statutory purpose and context in mind. Section 213(5) of the 2004 Act provides, where relevant, that the landlord who receives a tenancy deposit must give the tenant such information relating to the authorised scheme relating to the deposit, the landlord’s compliance with the initial requirements of the scheme and the operation of the provisions of Chapter 6 of the 2004 Act as may be prescribed. The information must be given in the prescribed form or in a form substantially to the same effect: section 213(6). The prescribed information is set out in the 2007 Order, which does not prescribe a particular form which must be adopted. Section 214, however, creates a strict liability penalty if the requirements are not met.

[54]There is no dispute about the statutory purpose of Chapter 6 of the 2004 Act, amplified by the requirements of the 2007 Order. It is both to safeguard deposits paid by tenants and to facilitate dispute resolution should an issue arise about the return or retention of the deposit at the end of the tenancy or any deduction from it. It requires information to be provided as to the circumstances in which a deposit may be retained by reference to the terms of the tenancy.

[55]Taking into account the purpose of the legislation and the statutory context, in my judgment, Article 2(1)(g)(vi) should be construed to mean that the tenant must be informed about the circumstances in which the deposit can be retained. As I have already explained, that can be done by a precis of the relevant circumstances and a reference to the relevant clause of the tenancy agreement or by reference to the relevant clause. This is consistent with the purpose of the legislation and the Explanatory Memorandum to the 2007 Order.

[56]What of the Prescribed Information in this case? It seems to me that a reasonable reader would immediately appreciate that the reference to clause 6 was an error. Equally, they would appreciate immediately what meaning the information was intended to convey. It was intended to refer to the clause in Mr Lowe’s tenancy agreement which dealt with deposits. That was clause 5.3. It seems to me that the error was obvious. As Hale LJ (as she then was) explained in the Fernandez case, at [20], “the obviousness or otherwise of an error is simply a factor in deciding what the reasonable recipient would understand by the notice.” Although there was a reference to a tenancy agreement which was not enclosed, it seems to me that the error was obvious and a reasonable recipient would have understood the Prescribed Information to refer to clause 5.3. I consider this to be the case, despite the additional wording at A15 of the Prescribed Information about consent. It seems to me, therefore, that the statutory purpose was fulfilled.

[57]This is not an impermissible step of the type referred to by Etherton LJ, as he then was, in the Ayannuga case. He was referring to circumstances in which the tenant would have to conduct his own research in order to discover the relevant information. In this case, Mr Lowe was in possession of his tenancy agreement and Charterhouse were required to provide information as to the circumstances in which all or part of the deposit might be retained by the landlord “by reference to the tenancy”. The Article itself looks outwards to the tenancy agreement.

[58]I also reject Mr Morris’ argument that reference to clause 5.3 would be insufficient. That clause states that the deposit is held as security towards the tenant’s liability for the matters set out at a) to d). It is security to cover the eventualities set out in those sub-clauses. Clause 5.3 provides the framework as to the manner in which the deposit will be dealt with at the end of the tenancy. It seems to me, therefore, that reference to it is sufficient to satisfy the statutory purpose. In fact, the framework is fleshed out at sub-clauses 5.20.2 – 5.20.4. Mr Morris accepted, for example, that the matters referred to in clause 5.20.2 are examples of sums expended by the Landlord in remedying any breach of covenant by the Tenant referred to in (clause 5.3d).

[59]If the Prescribed Information is interpreted in this way, it satisfies the requirements of Article 2(1)(g)(vi) and fulfils the statutory purpose. In my judgment, therefore, the judge was correct to decide as he did. In the circumstances, it is not necessary to address the question of whether the trial judge should have relied upon the “substantially to the same effect” provision in section 213(6) of the 2004 Act, in the alternative. The question does not arise.

The Confirmation Ground

[60]It is necessary, however, to turn to the second ground of appeal. As it was not in dispute that the Certificate had not been signed by Charterhouse, or on its behalf, the question before the judge was whether the confirmation required by Article 2(1)(g)(vii) had been given in a form which was “substantially to the same effect” which satisfied section 213(6) of the 2004 Act. In his written argument, Mr Morris accepted that the judge had recognised correctly that where a statute allows a notice to be given in a form which is “substantially to the same effect”, it may be possible to conclude that it satisfies the statutory requirements if it fulfils the statutory purpose. He submitted, however, that the judge had incorrectly identified the statutory purpose of Article 2(1)(g)(vii) and having done so, had asked the wrong question when considering whether it had been fulfilled.

[61]He submitted that the statutory purpose of the Article was to ensure that the tenant has confirmation from the landlord that the landlord has turned its mind to the accuracy of the information provided and that the tenant has an opportunity to check the accuracy of the information. He stated that the judge had assumed incorrectly at [43] that it was agreed that the statutory purpose of the certification requirement was to provide confirmation by the landlord that someone had turned their mind to the matter of supplying the tenant with the required information but had not focussed on the accuracy of that information.

[62]Mr Morris relied upon Pease v Carter and on Stidolphv American School in London Educational Trust Ltd. He accepted that it was possible to construe the Certificate with the covering letter but submitted that properly construed they did not address the issue of whether the landlord had turned its mind to the accuracy of the information supplied. He said that the position might have been different if it had been stated in the Letter which was signed that Charterhouse certified the accuracy of the information provided. Furthermore, he says that the tenant had not been given the opportunity to sign the Certificate containing the information by way of confirmation that it is accurate. In other words, he submits that when properly construed the Certificate and the covering letter do not fulfil sub-sub-articles (aa) and (bb) of Article 2(1)(g)(vii) of the 2007 Order.

[63]I disagree. I agree with the judge that when properly construed, the confirmation requirement was fulfilled.

[64]First, as Mr Morris conceded, there is no doubt that a notice or certificate can be construed together with its covering letter: Stidolph v American School in London Educational Trust Ltd per Lord Denning MR at 805:

“Any defect in the prescribed form can be made good by the covering letter or the stamped, addressed envelope. They can and should be read together. So long as the envelope contains the information which the Act requires, and is sufficiently authenticated, the notice is a good notice.”

This was also made clear by Arnold LJ at [45] in Pease v Carter.

[65]With the appropriate context in mind, it seems to me that the judge was correct to decide that the statutory purpose had, in substance, been achieved. As he put it at [48], taken together, the signed covering letter and the Prescribed Information were “substantially to the same effect” as a signed certificate because Charterhouse were effectively saying that it believed that it had done what was needed by providing the prescribed information and was happy to confirm that by way of a certificate. In other words, it believed that it had provided accurate information as to the prescribed matters. It was not necessary also to refer to expressly to its accuracy in order to satisfy sub-sub-article (aa).

[66]At one point in his oral submissions, Mr Morris also submitted that the Certificate provided was deficient to certify the accuracy of the information provided because the reference to clause 6 of a tenancy agreement which was not appended rendered the information inaccurate. This is to seek to construe the Certificate without reference to the principle in Mannai v Eagle Star. If the information is properly construed it was not inaccurate and the certification was not deficient in that way. As the judge put it at [52], if the information was sufficient to fulfil the statutory purpose and thus comply with the statutory requirements, then the Certificate of compliance cannot be deficient as to accuracy.

[67]What of sub-sub-article (bb)? Mr Morris submitted that, ultimately, this all turned on the use of the past tense in the sub-sub-article. He says that the statutory confirmation cannot be “given” unless the tenant has already been given the opportunity to check the accuracy of the details set out in the Certificate. Once that it is done, the landlord can provide the confirmation and not before.

[68]It seems to me that this issue has not been framed in this way before. When the matter was before the trial judge, it was part of agreed issue 3 which focussed upon whether the Letter and the Certificate had been “given” to Mr Lowe, in the sense of “received by him” and was dealt with accordingly. At [123] of his judgment, the trial judge stated that for the reasons he had already given, he was satisfied that sub-sub-article (bb) was met by the provision to Mr Lowe in September 2010 of the enclosure “A. Prescribed Information” with the invitation by covering letter that he sign it and return it. That issue was not appealed to the judge. Before the judge part of the focus was on whether the trial judge had been correct to view the issue through the lens of a perceived failure by the tenant to sign the Prescribed Information and return it. It has now been elevated into a separate argument before us.

[69]In any event, in my judgment, if the provision is construed purposively in the light of the statutory purpose and context, I consider that it is not necessary for a landlord, in effect, to send out draft information, request the tenant’s approval and then send out certified confirmation in order to satisfy (bb). It is sufficient, as in this case, that the tenant has been given the opportunity to check the details. It is not necessary that that precedes the landlord’s confirmation. Such an interpretation is consistent with the statutory purpose of the requirements. They are intended to safeguard deposits and facilitate the resolution of disputes arising in connection with such deposits. If Mr Morris were correct, the requirements would have the potential to increase disputes rather than to avoid them and facilitate their resolution.

[70]I agree with the judge’s conclusions at [47] and [48] of his judgment. Mr Lowe was given the opportunity to sign the Prescribed Information by way of confirmation that it was accurate to the best of his knowledge and belief. It was sufficient that he was afforded that opportunity when the confirmation in the form of a certificate signed by Charterhouse was sent to him. Mr Morris seeks to put too much weight upon “given”.

[71]For all the reasons set out above, I would dismiss the appeal.

Andrews LJ:

[72]I agree.

Nicola Davies LJ:

[73]I also agree.

Order

on 7 September 2010, Charterhouse’s agent, Daniel Watney, protected Mr Lowe’s deposit with a recognised tenancy deposit scheme; and on 28 September 2010, they sent a signed letter to Mr Lowe confirming the fact that the deposit had been protected and enclosed, amongst other things an unsigned certificate of prescribed information (respectively the “Letter”, the “Prescribed Information” and the “Certificate”). Where relevant, the Letter stated, as follows: “. . . Please find enclosed your certificate of registration with The Dispute Service confirming your deposit has been protected. I also enclose an explanation leaflet 'What is the Tenancy Deposit Scheme?' and additionally the 'Prescribed Information' as required under the legislation. We require you to sign the 'Prescribed Information' and to return one copy to us and retain one copy for your records. Yours sincerely STEPHEN BIRTWISTLE” The Prescribed Information contained in the Certificate provided, where relevant, as follows: “. . . At the end of the tenancy A15 The deposit will be released following the procedures set out in Clause 6 of the Tenancy Agreement attached. A16 Deductions may be made from the Deposit according to Clause 6 of the Tenancy Agreement attached. No deductions can be made from the Deposit without written consent from both parties to the Tenancy Agreement. . . . The Landlord confirms that the information, provided to the Agent and the Tenant is accurate to the best of his knowledge and belief and that the Tenant had the opportunity to examine the information. The Tenant confirms he has been given the opportunity to examine this information. The Tenant confirms by signing this document that to the knowledge of the Tenant the information above is accurate to the best of his knowledge and belief. Signed by the Tenant Signed by the Landlord/Agent” In fact, a tenancy agreement was not attached. Furthermore, Mr Lowe’s tenancy agreement did not contain a clause 6 at all. Provisions relating to the deposit were at clause 5.3 and were elucidated at clause5.20.1 to 5.20.4. of Mr Lowe’s tenancy agreement. Those clauses made no mention of the need for written consent of both parties before deductions could be made. They were in the following form: “5.3 Deposit To pay to the Landlord on the signing of this agreement the deposit as specified in the Schedule to be held by the Landlord until the expiration of the Tenancy as security towards the Tenant's liability for: a) any outstanding rates taxes outgoings b) dilapidations c) rent owed to the Landlord d) any sum expended by the Landlord in remedying any breach of covenant by the Tenant. . . 5.20 Moving out 5.20.1 To give the Landlord vacant possession and return the keys of the Premises at the end of the tenancy and remove all furniture belonging to the Tenant and his personal possessions and rubbish and leave the Premises and the Landlord's fixtures and fitting in good lettable and tenantable condition and repair and to pay to the Landlord the cost of repairing or replacing any damaged or missing parts of the Premises or any of the Landlord's fixtures or fittings

5.20.2 Any of the Tenant's belongings, or property, or personal effects, or foodstuffs or furnishings and equipment left behind at the premise will be considered to be abandoned and the Landlord or his agent may remove, store or dispose of any such items as he sees fit. The Tenant will remain liable for the fair costs of arranging such removal storage or disposal and such costs may be deducted from the deposit and any surplus costs after such deduction will remain the liability of the Tenant 5.20.4 If the Tenant vacates the Premises at the Tenant's own request before the last day of the fixed term, the Tenant shall remain liable to pay to the Landlord the full unpaid balance of the rent receivable by the Landlord had this agreement run to the full term and any deposit shall be retained by the Landlord and may be applied by him in partial satisfaction of any such unpaid balance for the rent due.” Yours sincerely STEPHEN BIRTWISTLE” At the end of the tenancy . . . Signed by the Tenant Signed by the Landlord/Agent” order: section 214(2) and (4). These were the provisions upon which Mr Lowe relied at trial.