Merryck Lowe v The Governors of Sutton's Hospital in Charterhouse

For tenancy-deposit information, a landlord may satisfy Article 2(1)(g)(vi) of the Housing (Tenancy Deposits) (Prescribed Information) Order 2007 by referring to the relevant term of the tenancy agreement. The circumstances need not be reproduced separately. An obvious error in the clause number may be construed by applying the reasonable-recipient approach, provided the intended meaning is clear and the statutory purpose is fulfilled. For certification, a signed covering letter and an unsigned certificate may together be substantially to the same effect as a signed certificate under the Housing Act 2004. The tenant must be given an opportunity to check the information, but need not exercise it or do so before the landlord’s confirmation. Appeal dismissed.

The landlord granted the tenant a tenancy in 2010 and received a deposit. Following a statutory change in rent thresholds, the tenancy became an assured shorthold tenancy and the deposit-protection regime in Chapter 4 of the Housing Act 2004 applied.

The landlord protected the deposit and sent a signed covering letter enclosing an unsigned certificate of prescribed information. The certificate referred to clause 6 of an attached tenancy agreement, although no agreement was attached and the tenant’s relevant provisions were in clause 5.3 and related clauses.

The tenant brought a claim under section 214 of the Housing Act 2004. The trial judge dismissed it, and Adam Johnson J dismissed the tenant’s appeal. The issues before the Court of Appeal were whether the information requirement, the certification requirements, and the tenant’s opportunity to confirm accuracy had been satisfied, and whether the unpleaded information point could properly be considered.

The appeal was dismissed. Asplin LJ gave the leading judgment. Andrews LJ and Nicola Davies LJ agreed.

1. Unpleaded issue. Whether the Information Ground should be entertained was a case-management decision. The trial judge was entitled to deal with it because it had been fully argued, the respondent could answer it fairly, and no material prejudice or need for further factual investigation had been shown. The decision fell within the proper ambit of his discretion.
2. Information Ground. Article 2(1)(g)(vi) of the Housing (Tenancy Deposits) (Prescribed Information) Order 2007 should be construed purposively. It requires the tenant to be informed of the circumstances in which the deposit may be retained by reference to the tenancy terms. That may be achieved by a concise statement or by referring to the relevant clause. The provision does not require every circumstance to be set out separately.
3. The reference to clause 6 was an obvious error. Applying the reasonable-recipient approach in Mannai Investments v Eagle Star [1997] AC 749, as developed in Pease v Carter [2020] 1 WLR 1459, a reasonable tenant would understand the reference to mean the deposit provision in clause 5.3 of the tenancy agreement in his possession. That clause supplied the necessary framework, supplemented by related provisions. The case was materially different from cases where the required information had been omitted altogether.
4. Confirmation Ground. The signed covering letter and the accompanying prescribed-information document were capable of being read together. Under section 213(6)(a) of the Housing Act 2004, they were substantially to the same effect as a signed certificate. They showed that the landlord had considered the prescribed information and was content to confirm it. An express repetition of the word accuracy was unnecessary. The clause-number error did not make the certification inaccurate once the document was properly construed.
5. Article 2(1)(g)(vii)(bb) required the tenant to be given an opportunity to review and sign the information. It did not require the tenant to exercise that opportunity, nor did it require the opportunity to precede the landlord’s confirmation. The covering letter’s invitation to sign and return the document was sufficient.

The statutory purposes of safeguarding deposits and facilitating the resolution of disputes were therefore fulfilled.

1. Court of Appeal (Civil Division): dismissed the appeal against the decision of Adam Johnson J. [2025] EWCA Civ 857
2. High Court Business & Property Court: Adam Johnson J dismissed the appeal from the trial decision of HHJ Luba KC, which had dismissed the tenant’s claim under section 214 of the Housing Act 2004. No citation for the High Court decision was stated in the judgment.