Neutral Citation Number:  EWCA Civ 40
Case No: CA-2021-000388 (formerly A2/2021/0132 & A2/2021/0496)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
Mr Justice Saini
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 26 January 2022
LORD JUSTICE LEWISON
LORD JUSTICE NEWEY
LORD JUSTICE SNOWDEN
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NORTHWOOD (SOLIHULL) LIMITED
(Claimant at 1st instance)
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(1) DARREN FEARN
(2) VICKY COOKE
(3) SHARON FEARN
- and –
NORTHWOOD (SOLIHULL) LIMITED
at 1st instance)
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JUSTIN BATES AND TOM MORRIS (instructed by JMW Solicitors) for the Respondent in the appeal and for the Appellant in the cross-appeal
CHRISTOPHER HEATHER QC and STEPHEN COTTLE (instructed by The Community Law Partnership) for the Appellant/Respondent Vicky Cooke
The 1st and 3rd Respondents in the 2nd appeal did not appear and were not represented
Hearing date: 18 January 2022
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This judgment was handed down remotely by circulation to the parties’ representatives by email and released to BAILII. The date and time for hand-down is deemed to be 2pm on Wednesday 26 January 2022.
Lord Justice Lewison:
i) A certificate given to the tenant under section 213 of the Housing Act 2004 (providing information about the deposit scheme); and
ii) A notice given under section 8 of the Housing Act 1988 seeking possession.
The statutory requirements about the documents
“(1) The appropriate national authority 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.
(9) In this Chapter–
(a) references to a landlord or landlords in relation to any shorthold tenancy or tenancies include references to a person or persons acting on his or their behalf in relation to the tenancy or tenancies…”
“(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.
(2) No person may require the payment of a tenancy deposit in connection with a shorthold tenancy which is not to be subject to the requirement in subsection (1).
(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.
(10) In this section— ‘prescribed’ means prescribed by an order made by the appropriate national authority.”
“(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.
(2) For the purposes of paragraph (1)(d), the reference to a landlord or a tenant who is not contactable includes a landlord or tenant whose whereabouts are known, but who is failing to respond to communications in respect of the deposit.
(3) In a case where the initial requirements of an authorised scheme have been complied with in relation to the deposit by a person (“the initial agent”) acting on the landlord's behalf in relation to the tenancy—
(a) references in paragraph (1)(b), (g)(iii) and (vii) to the landlord are to be read as references to either the landlord or the initial agent;
(b) references in paragraphs (1)(d), (e), (g)(iv) and (vi) and (2) to the landlord are to be read as references to either the landlord or a person who acts on the landlord's behalf in relation to the tenancy.
(4) In any other case, references in paragraphs (1)(d), (e), (g)(iv) and (vi) and (2) to the landlord are to be read as references to either the landlord or a person who acts on the landlord's behalf in relation to the tenancy.
(5) Section 212(9)(a) of the Act (references to landlord include persons acting on landlord's behalf) does not apply for the purposes of this article.”
“154. The amendments would rectify a problem which has been identified with the prescribed information order which is that it does not clearly allow (as the Government intended) for a letting agent’s details to be provided in the prescribed information instead of the landlord’s. The amendments to article 2 of the order would make it clear that each of the references to ‘the landlord’ in the order are to be read as references to either the landlord or the letting agent where relevant.”
“Where an Act confers power to make subordinate legislation, expressions used in that legislation have, unless the contrary intention appears, the meaning which they bear in the Act.”
The section 8 notice
“(1) The court shall not entertain proceedings for possession of a dwelling-house let on an assured tenancy unless— (a) the landlord or, in the case of joint landlords, at least one of them has served on the tenant a notice in accordance with this section and the proceedings are begun within the time limits stated in the notice in accordance with subsections (3) to (4B) below; or (b) the court considers it just and equitable to dispense with the requirement of such a notice.
(2) The court shall not make an order for possession on any of the grounds in Schedule 2 to this Act unless that ground and particulars of it are specified in the notice under this section; but the grounds specified in such a notice may be altered or added to with the leave of the court.
(3) A notice under this section is one in the prescribed form informing the tenant that— (a) the landlord intends to begin proceedings for possession of the dwelling-house on one or more of the grounds specified in the notice; and (b) those proceedings will not begin earlier than a date specified in the notice in accordance with subsections (3A) to (4B) below; and (c) those proceedings will not begin later than twelve months from the date of service of the notice .”
“Name and address of landlord/licensor
To be signed and dated by the landlord or licensor or the landlord's or licensor's agent (someone acting for the landlord or licensor). If there are joint landlords each landlord or the agent must sign unless one signs on behalf of the rest with their agreement.
Signed … Date …
Please specify whether: landlord/licensor/joint landlords/landlord's agent
Name(s) (Block Capitals) …
Telephone: Daytime … Evening”
Authentication of documents by a company
“(1) Under the law of England and Wales or Northern Ireland a document is executed by a company–
(a) by the affixing of its common seal, or
(b) by signature in accordance with the following provisions.
(2) A document is validly executed by a company if it is signed on behalf of the company–
(a) by two authorised signatories, or
(b) by a director of the company in the presence of a witness who attests the signature.
(3) The following are “authorised signatories” for the purposes of subsection (2)–
(a) every director of the company, and
(b) in the case of a private company with a secretary or a public company, the secretary (or any joint secretary) of the company.
(4) A document signed in accordance with subsection (2) and expressed, in whatever words, to be executed by the company has the same effect as if executed under the common seal of the company.
(5) In favour of a purchaser a document is deemed to have been duly executed by a company if it purports to be signed in accordance with subsection (2). A “purchaser” means a purchaser in good faith for valuable consideration and includes a lessee, mortgagee or other person who for valuable consideration acquires an interest in property.”
“Any notice which is given under Chapter I or II by any tenants or tenant must—(a) if it is a notice given under section 13 or 42, be signed by each of the tenants, or (as the case may be) by the tenant, by whom it is given; and (b) in any other case, be signed by or on behalf of each of the tenants, or (as the case may be) by or on behalf of the tenant, by whom it is given.” (Emphasis added)
“… is this notice one which was signed “by” the company or was it only signed “on behalf of” the company?”
“20. Mr Walker, for the tenant, submits, and I agree, that if s.99(5)(a) stood on its own nothing in it would carry an implication that the notice to be signed by the tenant cannot be signed on behalf of the tenant by a duly authorised agent. There is nothing of personal skill or discretion in the giving of a s.42 notice.
21. The position would be much as it is under many other aspects of landlord and tenant legislation. This sort of point has been considered in many contexts within that statutory regime, or perhaps I should say those statutory regimes.”
“The question being, therefore, how an artificial person, here a company registered under the Companies Acts, does the act of signing a document, it is necessary to find the answer in either or both of (a) the body's own constitutional documents, which could prescribe what it can do and how it can go about doing it, and (b) the general law on the subject governing all such entities. Since there is no reliance here on the memorandum and articles of the company, …the only recourse must be to the general law.”
“… at any rate in the context where some degree of formality is required to make a document valid and effective for some particular legal purpose (and the point can only arise in such a context), it is appropriate and natural to speak of the execution of the document, as a matter of ordinary language. That is so even for a document to be made under hand rather than by deed. In particular, it is so for a document which is to be signed by, as distinct from on behalf of, a legal entity such as a limited company.”
“It is established, in my judgment, as a general proposition that at common law a person sufficiently “signs” a document if it is signed in his name and with his authority by somebody else; and in such case the agent's signature is treated as being that of his principal.”
“On the wording of this tenancy agreement, I think that a signature by proxy was permissible on this notice to quit. Take the case where the tenants desire to determine the tenancy. The notice has to be in writing “signed by the tenants.” But the tenant is a limited company which cannot write its own name. It can only sign by proxy, as, for instance, by a director or secretary signing on its behalf.” (Emphasis added)
“58. I have difficulty in seeing how either Mr Talby or Mr Harbord can be regarded as the giver of a damage notice in any meaningful sense. If I ask my personal assistant to type up a notice to quit in my name, and to post it, the notice is given by me, not by my personal assistant. If I ask her to sign it in my name or expressly on my behalf, and to post it, it remains a notice given by me. It is not a notice given by her. So I do not think that Mr Talby and Mr Harbord can be regarded as the givers of the notices, notwithstanding that they filled in the forms and in Mr Harbord's case signed it.
59. On the other hand, if, without my authority, someone produces a notice in my name, the notice is not given by me, even if I am named as the person giving the notice.
60. The third possibility is that my personal assistant, having been authorised by me to produce and to send a notice from me, in error puts someone else's name in the notice. In this case, it seems to me that the notice is not one given by me unless it is obvious to the recipient that the name of the giver of the notice is an error and that both it is I who authorised the giving of the notice and that the error was to substitute the incorrect name for my name…”
“These primary rules of attribution are obviously not enough to enable a company to go out into the world and do business. Not every act on behalf of the company could be expected to be the subject of a resolution of the board or a unanimous decision of the shareholders. The company therefore builds upon the primary rules of attribution by using general rules of attribution which are equally available to natural persons, namely, the principles of agency. It will appoint servants and agents whose acts, by a combination of the general principles of agency and the company's primary rules of attribution, count as the acts of the company. and having done so, it will also make itself subject to the general rules by which liability for the acts of others can be attributed to natural persons, such as estoppel or ostensible authority in contract and vicarious liability in tort.”
“The general principle is that when a statute gives someone the right to invoke some legal procedure by giving a notice or taking some other formal step, he may either do so in person or authorise someone else to do it on his behalf. Qui facit per alium facit per se. Thus in R v Kent Justices (1873) LR 8 QB 305 a landowner was entitled to appeal against a rating assessment by a notice “signed by the person giving the same or by his attorney”. It was signed by his attorney's clerk. Blackburn J said, at p 307, that as the clerk had authority from the appellant to sign on his behalf, that was sufficient.”
“There are statutes which, exceptionally, require a personal signature and exclude performance by an agent. In Hyde v Johnson… the Court of Common Pleas considered Lord Tenterden's Act …which required that an acknowledgement of a statute-barred debt should be signed “by the party chargeable thereby”. The court was struck by the contrast with the Statute of Frauds 1677 … which was enacted for a very similar purpose but said that the necessary memorandum should be signed by the party to be charged “or some other person thereunto by him lawfully authorised”. The absence of a similar express provision for agency made the court conclude that a personal signature was required.”
The relevant facts
“We (being the Landlord) certify that (i) The information provided is accurate to the best of our knowledge and belief. (ii) We have given the Tenant(s) the opportunity to sign this document by way of confirmation that the information is accurate to the best of the Tenant(s) knowledge and belief.
Landlords(s): Northwood Solihull Ltd
Signature(s): [A Brown]
“Dated: 26th July 2014
Tenant(s): Miss Vicky Cooke & Mr Darren Fearn
[D Fearn & V Cooke]
“6. Name and address of landlord/ licensor:
Northwood Solihull Ltd
115 Stratford Road
To be signed and dated by the landlord or licensor or the landlord's or licensor's agent (someone acting for him). If there are joint landlords each landlord or the agent must sign unless one signs on behalf of the rest with their agreement.
Signed [M Miles]
Please specify whether landlord/
licensor/joint landlords/landlord's agent”
i) What is required in order to comply with the statute and
ii) What are the consequences of non-compliance?
Approach to compliance with statutory requirements
“The regulations do not make it mandatory to use the prescribed form. It is sufficient to use a form “substantially to the like effect.” 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. The requirement of a notice should not be turned into a trap for the landlord.”
“39 The citation above [from Chiltern Railway Co v Patel  Bus LR 1295] demonstrates, in my judgment, that a declaration will be “in the form or substantially in the form” prescribed if the declaration as a whole fulfils all the essential purposes of the prescribed form and that, despite the use of apparently mandatory language, Parliament is not to be taken to have insisted on an interpretation which is contrary to commercial sense.”
“39. The conclusions which I draw from this survey of the authorities are as follows:
(i) A statutory notice is to be interpreted in accordance with Mannai v Eagle  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.”
“… where a notice is capable of two interpretations, one of which will lead to the conclusion that it is valid, and the other to the conclusion that it is invalid, the former interpretation should be preferred.”
Does the certificate comply with the requirements?
“A confirmatory certificate had the particular legal purpose of ensuring that the information that a landlord was required to provide a tenant in connection with any deposit was accurate to the best of the landlord's knowledge and belief. There was clearly a legislative decision made to impose some formality as to who must sign in this context.”
Does the section 8 notice comply with the requirements?
The consequences of non-compliance
i) cases in which the decision of a public body is challenged, often involving administrative or public law and judicial review, or which concern procedural requirements for challenging a decision whether by litigation or some other process; and
ii) cases in which the statute confers a property or similar right on a private person and the issue is whether non-compliance with the statutory requirement precludes that person from acquiring the right in question.
“The outcome in such cases does not depend on the particular circumstances of the actual parties, such as the state of mind or knowledge of the recipient or the actual prejudice caused by non-compliance on the particular facts of the case: see para 32. The intention of the legislature as to the consequences of non-compliance with the statutory procedures (where not expressly stated in the statute) is to be ascertained in the light of the statutory scheme as a whole: see para 33. Where the notice or the information which is missing from it is of critical importance in the context of the scheme the non-compliance with the statute will generally result in the invalidity of the notice. Where, on the other hand the information missing from the statutory notice is of secondary importance or merely ancillary, the notice may be held to have been valid: see para 34. One useful pointer is whether the information required is particularised in the statute as opposed to being required by general provisions of the statute. In the latter case the information is also likely to be viewed as of secondary importance. Another is whether the information is required by the statute itself or by subordinate legislation. In the latter case the information is likely to be viewed as of secondary importance. In this connection it must not be forgotten that while the substantive provisions of a bill may be debated clause by clause, a draft statutory instrument is not subject to any detailed Parliamentary scrutiny. It is either accepted or rejected as a whole. A third is whether the server of the notice may immediately serve another one if the impugned notice is invalid. If he can, that is a pointer towards invalidity.”
“First, the legislator can be taken to have assumed that the courts would take a realistic and pragmatic approach in determining the significance of different steps in a procedural scheme laid down by statute. A result which is impractical or unrealistic is unlikely to be what was intended. In fact this principle too can be found in Elim Court, at paragraph 63 when one of the landlord's submissions was rejected as unrealistic. Second, the pointers referred to are just that, and cannot be put too high. Taken to the extreme the first and second pointers could be taken to imply that if the relevant provision is clearly and specifically set out in the primary legislation then breach of it must lead to invalidity. However that is not right, as the result of Elim Court shows. The landlord's reliance on these two pointers in this case is a fair point to make but in the end it is not determinative.”
The section 8 notice
Lord Justice Newey:
Lord Justice Snowden: