I’ve been getting tenancy deposit instructions and a few of them have a situation where the tenant has failed to protect the deposit and have failed to do so even after the fixed term has expired.
I am asked to argue that Superstrike Limited v Rodrigues [2013] EWCA Civ 669 would mean that a new, period tenancy commenced and that this was a second penalty applied. Those who instruct me highlight in their briefs that should the Judge fail to allow the second penalty to seek permission to appeal.
There is a County Court appeal decision on Bailii which of course is not binding but may assist those who undertake tenancy deposit cases.
My experience
Most Judges agreed that Superstrike did mean a second penalty, others disagree, suggesting Superstrike was never intended to apply to s214 Housing Act 2004. I recall my first tenancy deposit case which ended up as a CMC asked me how Superstrike applied. I pointed out that as in Superstrike the end of the fixed term tenancy, creating a period tenancy, was treated as giving the deposit back to the tenant and the returned to landlord.
The Judge then questioned whether I was submitting that the landlord was required to undertake the provisions of s213 again after the fixed term tenancy ended. I reminded the Judge that s215B meant that once the deposit was paid, the Landlord need not re-protect it again. What Superstrike meant was the Landlord failed on the second occasion because it was never protected as per s213 on the first occasion of s215B.
The Judge indicated to myself and the Landlord that he did not believe Superstrike was intended to apply that way nor should it. He did indicate to the Landlord that this could be interpreted in a different way (and the trial Judge interpreted it in favour of the tenant).
County Court Appeal
HHJ Johns KC heard an appeal in the case of Szorad & Anor v Kohli [2023] after the Deputy District Judge refused to make a second penalty award. His judgment was quoted in the appeal decision:-
“ (5)The relevant passages in the judgment really begin at paragraph 35. Lloyd LJ in that case held in effect that where a tenancy deposit was held under an assured shorthold tenancy which then converted into a statutory periodic tenancy, the deposit would continue to be held in relation to the statutory tenancy as it was held in relation to the assured shorthold tenancy. Any other interpretation of the relevant statutory provision would have necessitated the deposit having to be returned and then redeposited. It was perhaps therefore unsurprising that the correct interpretation of the statutory provision avoided this otherwise cumbersome administrative process
(7) Those requirements under section 213 all presuppose that, once the deposit is received, it must be dealt with in a particular way, and of course there is an obligation to return it. But what they do not say, and what they could have said in clear terms (and I think this is germane to the interpretation of the obligations under the Housing Act) is that upon the creation of a statutory periodic tenancy, the deposit having not been secured in relation to the assured shorthold tenancy, a new obligation or a new right to compensation based upon that failure can be founded distinctly and separately on the subsequent alleged breach
(8) In my judgment, although Superstrike is clearly authority for the proposition that it makes (see paragraph 5 above) it cannot be used for the purpose of construing the 2004 Act to give rise to what would in effect be the separate and distinct entitlement to another penalty in relation to the non-compliance with the deposit security requirement by reason of the creation of an SPT. In my judgment, although the claimants are entitled, due to the failure to protect, to claim the penalty in relation to that, they are not entitled to claim in relation to the subsequent failure to protect on the creation of the statutory periodic tenancy. Had the law wanted to do that, it could have done that in very straightforward and clear terms. So far as that is concerned, I find the entitlement is in relation to one breach, that breach being in relation to the failure to notify and secure within 30 days of receipt of the deposit.
The Circuit Judge considered paragraph 38 of Superstrike and s215B which in his view did not undermine Superstike. s215B prevented re-protection when it had already bene protected but still indicated the need for protection for two distinct tenancies.
The Circuit Judge allowed the appeal and awarded a second penalty, albeit for a lower amount than the first (which was awarded at the maximum three times the deposit) because the Judge was of the view if the DDJ failed to appreciate the need for protecting the deposit at the commencement of the periodic tenancy, then so would of the Landlord (who did not partake in the appeal), in addition with the first award already being the maximum.
Consideration
I find it strange that the Judge took the view that a DDJs incorrect interpretation would be evidence that the Landlord did not interpret the need to protect the deposit before the commencement of the periodic tenancy. That would almost suggest that the test for determining the Landlord’s culpability for award qualification should be what a reasonable and prudent District level Judge would believe.
The Judge had no evidence nor any consideration as to whether the DDJ below had a view shared by many or only a few Judges at first instance. Nevertheless, it will no doubt assist those in tenancy deposit litigation and who undertake the advocacy to argue something that I expect most tenancy deposit lawyers already do.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.