Court dismisses tenant's appeal in deposit protection dispute

Background

The County Court at Wandsworth, presided over by HHJ Peter Marquand, delivered a significant judgment on 12 March 2025, concerning an appeal by Nikki Lumsden against a decision made by District Judge Jenkins in the County Court at Brentford. The case revolved around a dispute between a tenant, Ms Lumsden, and her landlord, Ms Rachel Charles, regarding an alleged failure to protect a tenancy deposit as required under section 214 of the Housing Act 2004.

Ms Lumsden, the appellant, had been a tenant of Ms Charles at a property located at 84 Fordmill Road, Catford, London, under an assured shorthold tenancy agreement that commenced on 7 December 2016 for a term of five years. A deposit of £2,100 was paid at the start of the tenancy. Ms Lumsden's parents were joint tenants but vacated the property in May 2019, leaving Ms Lumsden as the sole tenant until December 2020.

Background and procedural history

The dispute arose when Ms Lumsden alleged that Ms Charles failed to protect the deposit in an approved Tenancy Deposit Scheme as mandated by the Housing Act 2004. This led Ms Lumsden to file a claim against Ms Charles under section 214 of the Housing Act 2004, which allows a court to award up to three times the deposit amount if it is not protected within the required timeframe.

However, the claim faced procedural challenges. Ms Lumsden sought relief from sanction after failing to file her evidence alongside the Part 8 claim form as required by the Civil Procedure Rules (CPR). District Judge Jenkins refused this relief and struck out the claim, leading to the appeal heard by HHJ Peter Marquand.

Appeal issues and arguments

The appeal raised three main issues: whether permission should be granted to amend the grounds of appeal, whether a new matter not argued before the original judge could lead to a different outcome, and whether the judge erred in applying the legal test for relief from sanction.

Mr Andrew McKie, representing Ms Lumsden, argued that the Section 48 of the Landlord and Tenant Act 1987 should apply, which requires a landlord to provide an address for service of notices. He contended that Ms Charles failed to update her address as required, which should have allowed the claim to proceed.

Judgment and reasoning

HHJ Peter Marquand considered the appeal under the guidelines provided by the Civil Procedure Rules and the Denton principles. The first issue was whether the grounds of appeal could be amended to include the Section 48 argument, which was not initially raised. The judge allowed this amendment, noting that the Respondent, represented by Mr Stephen Bishop, had been aware of the argument since November 2024 and had addressed it in her submissions.

In considering the application of the Denton test, the judge found that the breach of CPR 8.5(1) was serious and significant, and there was no good reason provided for the delay in applying for relief from the sanction. The judge noted that the application for relief from sanction was only made after the Respondent's application to strike out the claim.

Key issues and judgment

The court had to consider several factors in deciding whether to grant relief from sanction. These included the seriousness of the breach, the reason for the breach, all the circumstances of the case, and the need to deal with cases justly. The judge found that the breach was serious and significant, and there was no good reason for the delay in seeking relief from sanction. The judge also considered the potential prejudice to the Respondent and the delay in the proceedings, which were deemed significant.

Mr McKie argued that the Judge had erred by not considering all relevant circumstances, such as the fact that no issues had been raised about the procedural defects during earlier hearings. However, the court found that the Judge had considered the necessary factors and did not err in his decision to refuse relief from sanction.

Ultimately, the court upheld the original decision to strike out the claim, concluding that the failure to serve the claim form correctly and the procedural breaches were significant and that the Appellant's arguments did not warrant a different outcome.

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