Category: AJH Advocacy

Assessing costs can be expensive for the loser, even if they are on the receiving end. However, if a hearing is held solely to assess costs, the aftermath can lead to additional expenses.

Following the implementation of the Jackson reforms in July 2013 and the introduction of a more robust fixed cost regime, it was assumed that disputes over costs would become rare and, if they did occur, would be resolved efficiently. However, as with any new system, technical issues and oversights led to unforeseen consequences.

This post compares how fixed recoverable costs disputes are resolved, distinguishing between the regimes before and after 1st October 2023.

Pre-1st October 2023 regime

Imagine a fixed-cost personal injury case settles by way of Part 36. The accident predates the 1st October 2023 regime. CPR 36.20 says that the Claimant becomes entitled to:-

• The applicable fixed recoverable costs under Part 45; and
• The recoverable disbursements allowed by CPR 45.29I

The parties attempt to agree on the amount of fixed costs, which is usually straightforward, and any disputed disbursements. If they cannot agree on costs, CPR 36.20(11) allows the Court to determine the issue. This is a determination by application rather than through a form bill of costs for a detailed assessment.

The Court of Appeal in Doyle v M&D Foundations & Building Services Limited [2022] EWCA Civ 927 held the obiter view that the Part 45 fixed costs regime is a self-contained code and is distinct from the summary and detailed assessment procedures in CPR 44.6. Phillips LJ expressly stated that detailed assessment is not the mechanism for determining costs and disbursements under the Part 45 FRC regime.

The practical consequences are:-

• No bill of costs is required.
• No Points of Dispute and Replies procedure.
• No line-by-line assessment.
• The court simply determines entitlement under Part 45.

The matter goes to an application hearing where any remaining issues are resolved. The question that follows is: How are the costs of that determination hearing calculated?

Parsa v DS Smith plc and Another [2019] Costs LR 331 shows that, when adopting the position of Sharp v Leeds City Council [2017] EWCA Civ 33, the ‘main proceedings’ commence once the CNF is sent and end upon conclusion of the main action, i.e. trial or settlement. In respect of settlement, if a determination hearing is needed then it takes place outside the fixed costs regime.

On this basis, the costs of a fixed costs determination hearing are, ironically, subject to cost being assessed on the standard basis.

Post-1st October 2023 regime

The new regime has now dealt with the laguna which is the absence of a fixed cost regime for dealing with the determination of fixed costs of the main action.

CPR 45.64 now provides a streamlined procedure for resolving disputes about costs and disbursements only where the parties have already reached a written agreement on all other issues in a claim governed by this Part. If liability and all substantive matters have been settled, but the parties cannot agree on the amount of recoverable costs or disbursements, the receiving party may ask the court to determine that outstanding amount.

Where proceedings are already in hand, the receiving party must make the application within those proceedings under Part 23, subject to the modifications contained in this rule. If proceedings have not yet been started, the receiving party must commence costs-only proceedings under rule 46.14 and seek determination through that process.

Unless the court orders otherwise, the application must be supported by evidence served at the same time as the application. That evidence must include the written settlement agreement (or written confirmation of it) and a completed Precedent U, setting out the costs and disbursements claimed and any additional claims under rules 45.9, 45.10 or 45.13 where relevant.

The paying party must then file and serve any evidence in response, together with a completed response to Precedent U, within 21 days. The 21-day period runs from service of the application where proceedings have already been commenced, or from filing an acknowledgement of service where proceedings have not yet been started.

The court will ordinarily determine the application without a hearing. The only costs recoverable in relation to the application are those prescribed by Table 17 of Practice Direction 45, together with any applicable court fee.

After considering the papers, the court records its decision by annotating Precedent U, noting its determination against each item claimed. The annotated Precedent U is then served on the parties with a notice explaining that any party wishing to challenge any aspect of the determination must request a hearing.

A party seeking reconsideration must file and serve a written request for a hearing within 21 days of service of the notice. The request must specify which parts of the determination are challenged and provide a time estimate for the hearing. If no request is made within that period, the court’s determination becomes binding on the parties.

Where a hearing is requested, the court will list it and give at least 14 days’ notice. The hearing is not intended to provide a cost-free second opportunity to argue the case. The general rule is that the party requesting the hearing must pay the costs of and incidental to that hearing unless they obtain an improvement in their own favour of at least 20% of the amount originally determined by the court.

For the purpose of any costs order arising from the hearing, the matter is treated as an interim application under rule 45.8. The costs payable in respect of the hearing are assessed summarily by the court at the hearing itself.

Comparison

The pre-1 October 2023 fixed recoverable costs regime had the advantage of procedural simplicity when determining entitlement to fixed costs and disbursements because disputes were resolved by application rather than through the detailed assessment process, avoiding bills of costs, Points of Dispute and line-by-line scrutiny. However, the regime contained a significant anomaly. Where the parties required a hearing to determine fixed costs, the costs of that determination hearing fell outside the fixed costs regime and were themselves recoverable on the standard basis. This created the potential for disproportionate satellite litigation concerning relatively modest costs disputes.

By contrast, the post-1 October 2023 regime introduced CPR 45.64, which provides a dedicated and streamlined procedure for resolving costs-only disputes under the fixed recoverable costs scheme. Determinations are ordinarily made on paper using Precedent U, with tightly controlled recoverable costs and a deterrent costs consequence for parties who unsuccessfully seek reconsideration at a hearing. The principal advantage is greater certainty, proportionality and cost control. A potential disadvantage, however, is that parties have less procedural flexibility and may perceive a reduced opportunity to fully contest disputed items, particularly given the default paper-based determination process and the risk of adverse costs consequences when requesting a hearing. It also means that the cost of undertaking a fixed-cost determination hearing is not proportionate to the sums of money recoverable to warrant appropriate challenges, even when the party believes they are correct in terms of position.

Conclusion

The fixed recoverable costs regime remains a somewhat strange creature. It was never designed to achieve perfect justice in every case, but rather to provide a rough-and-ready framework which delivers certainty, proportionality and predictability across the board. As with any system based upon fixed figures, there will inevitably be winners and losers. The underlying philosophy is one of swings and roundabouts: parties may recover more than would be justified on a detailed assessment in some cases and less in others, but the overall benefit is the reduction of costs litigation and the promotion of proportionality. In the vast majority of cases, no determination is required because the recoverable costs are apparent from the rules themselves. However, disputes will occasionally arise, whether over the recoverability of a particular disbursement or over the proper interpretation of the rules. In that respect, fixed costs disputes are no different in principle from arguments which arise on summary or detailed assessment.

Prior to 1 October 2023, the absence of a bespoke procedure for determining such disputes created the potential for costly satellite litigation which was often disproportionate to the sums in issue. The introduction of CPR 45.64 has sought to cure that defect by providing a streamlined paper-based process, with any oral hearing carrying cost consequences for a party who fails to improve upon the court’s provisional determination by at least 20%. Whether there will in practice be many reconsideration hearings remains to be seen. The combination of a paper determination process and the risks associated with seeking an oral hearing may discourage challenges. Equally, the relatively modest costs at stake may mean that the regime does not always provide a sufficiently strong incentive or deterrent. What is clear, however, is that practitioners must remain alive to the new procedural framework and its consequences. If the reforms achieve anything, it is hoped that parties will adopt more careful and realistic positions on costs disputes from the outset, thereby avoiding the very satellite litigation which the fixed costs regime was intended to eliminate. 

Information

Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

It is something that I discuss quite often with instructing litigators, opponents and others in general.

It is understandable why practitioners will conflate disclosure and inspection. When one talks about disclosure, one thinks documents and the provision. In standard disclosure, the process of disclosure informs the other party of a document’s existence, while inspection allows examination or copying. Disclosure can occur without inspection, such as under legal professional privilege. If standard disclosure is inadequate, parties typically make a precise written request, seek to narrow the issue, and, if that fails, submit an evidence-supported application for specific disclosure or inspection under CPR 31.12.

Whilst there are cases where the disclosure regime of standard disclosure does not apply (small claims track and matters subject to PD 57AD, for example), understanding the role of disclosure is important for any practitioner.

The standard disclosure process

As above, lawyers and litigants using everyday court language often refer to the entire process as “disclosure,” which includes finding documents, listing them, sharing copies, and reviewing what the other side has provided. The CPR, however, uses the term more specifically. Pursuant to CPR 31.2, a party discloses a document simply by acknowledging that it exists or has existed. This step is about identifying the document, not necessarily producing it.

The N265 list of documents (or something with a similar construction) is the method of allowing a party to disclose what is available, not available because it no longer exists (and why), what exists and what exists but inspection is objected to (such as privliged documents).

Next, inspection takes place. As per CPR 31.3, the party who has received the document usually has the right to look at it. Then, CPR 31.15 provides the process. Written notice is given, inspection should generally be allowed within seven days, and if requested and reasonable copying costs are covered, a copy should typically be provided within seven days.

The right to inspect is not absolute. It can be withheld if the document is outside the disclosing party’s control, if there is a legal privilege, or if inspection would be disproportionate and procedural requirements are met. A list may still be complete even if some documents are not open to inspection.

What is standard disclosure?

Standard disclosure is a specific category, rather than a blanket invitation to request every potentially relevant document. CPR 31.6 invites parties to share only those documents they rely on, those that may negatively impact their own case or another party’s case, or support someone else’s case. Additionally, the obligation covers even unhelpful documents. It’s important to note that this requirement isn’t just about sharing materials that strengthen the disclosing party’s position; it encompasses all relevant documents within this scope.

There are three stages to disclosure:-

• Reasonable search – CPR 31.7 requires a reasonable search for documents falling within CPR 31.6(b) or (c). Reasonableness depends on the number of documents, the nature and complexity of the case, the ease and expense of retrieval, and the likely significance of what may be found.
• Control – Under CPR 31.8, the duty is limited to documents that are or have been in the party’s control: physical possession, a right to possession, or a right to inspect or take copies.
• Proportionality and case management – The court may dispense with standard disclosure, order it, or adopt another tailored form of disclosure. The actual order and any written agreement between the parties must be read before assuming that CPR 31.6 defines the task.

The practicality

There are practical points to consider, and these can arise quite often in everyday practice. This is a non-exhaustive list of practical points:-

A document is absent from the list. This is potentially a disclosure problem. The question is whether the document falls within the operative disclosure order, whether it is or was within the party’s control, and whether a reasonable search should have found it. The problem is that if the document never existed and it was not a document at the forefront of their mind, of course it wouldn’t be in the list. A sensible approach would be to indicate to the other party early and ask them to explain that in a short, signed document, as the N265 does not have a section for documents that have never existed.

A document is listed, but no copy has been provided. This is generally an inspection or production problem, not necessarily a failure to disclose. The receiving party should identify the listed document, give written notice under CPR 31.15 and request a copy, while addressing any stated objection. Quite often, parties will not specify individual documents but more broadly. One example would be medical records, but it doesn’t specify where from and what period.

A document is listed in the privileged section. The document has been disclosed, but inspection is withheld. The issue is whether the asserted right or duty to withhold inspection is valid and adequately stated. A challenge falls under CPR 31.19(5), not simply CPR 31.12. There is also the risk that a document has been provided for inspection that is privileged and should not have been disclosed. I discuss this issue in my post here.

A disclosed category is said to be too disproportionate to inspect. CPR 31.3(2) permits this position for documents in a category or class disclosed under CPR 31.6(b), provided the disclosure statement says inspection will not be permitted on proportionality grounds. The appropriate remedy may be an order for specific inspection under CPR 31.12(3). This would be an issue for Claimants to consider when the issue in dispute and the voluminous disclosure requested do not warrant the same.

A document is mentioned in a statement of case, witness statement, witness summary or affidavit. CPR 31.14 creates a separate route to inspection. The first step should normally be a focused written request identifying the passage and document; if inspection is not provided, an application may follow. In any event, it should be correct that a witness evidences the document in their statement to make it admissible.

What to do if the list is inadequate?

A specific disclosure application should focus on an identified gap, not a general claim that the opponent must have more documents. Compare the issues and disclosure order with the documents listed and produced, then explain what is missing and why it matters.

Before applying, the request should:-

• link the documents to a specific issue;
• describe them narrowly, using dates, people, accounts or subjects where possible;
• explain why they likely exist and were under the other party’s control;
• show that they fall within the disclosure order or CPR 31.6;
• identify any weakness in the search, list or response;
• suggest a proportionate solution, such as a limited search or staged disclosure; and
• set a reasonable deadline and invite discussion.

Clear correspondence can narrow the dispute, support any later application and affect costs. This reflects the emphasis on cooperation and proportionality in CPR 31.5 and Practice Direction 31A. Much of the time, documents are omitted not maliciously but simply by mistake and misunderstanding.

Specific disclosure application

CPR 31.12 allows courts to order specific disclosure or inspection, requiring respondents to disclose identified documents or conduct specified searches. A specific inspection, under CPR 31.3(2), is narrower, focusing on withholding inspection of disclosed categories as disproportionate. Practice Direction 31A states that an application can be made if disclosure is inadequate; supporting evidence and clear reasons are required.

The court considers all circumstances, especially the overriding objective, and will usually order proper compliance if inadequacy is proven.

Common mistake can include:-

• Assuming that standard disclosure applies automatically, read your directions Order
• Disclosure and inspection should not be treated as interchangeable, as the appropriate remedy depends on whether a document has been omitted from the list, access has been refused, privilege is claimed, proportionality is disputed, or the document is mentioned in evidence.
• Avoid demanding every relevant document, since CPR 31.6 is narrower than general relevance and only requires a reasonable and proportionate search.
• Not reviewing the list of documents carefully, as information about custodians, locations, date ranges, search terms and omitted categories may expose a deficiency or resolve the concern.
• Where documents are outside another party’s control, the correct procedure must be used, as pre-action disclosure, non-party disclosure and orders under CPR 31.12A have different requirements.
• Jumping straight into satellite litigation with an application when a focused request may actually acheive the outcome you desire.
• Take care with using the correct approach when it comes to documents subject to privilege.

Conclusion

Disclosure is about noting the existence of documents within the scope of the duty, while inspection is about allowing access to those documents, with certain recognised limits. Standard disclosure involves a straightforward and fair approach, including a reasonable search, a clear list, and honest disclosure. If that process isn’t enough, CPR 31.12 offers a specific remedy.

The disclosure process seems straightforward, but it is a very complicated process when one looks at the underlying features and law. This article may seem comprehensive, but I can assure you it is not. In fact, I probably spent more time attempting to simplify without losing meaning.

However, many disclosure issues can be resolved and avoided by taking care and being cooperative. CPR 31.12 should be a tool of last resort, rather than a response to the absence of disclosure or documents for inspection at the disclosure stage.

Information

Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

I haven’t done a ‘take a break’ post for a while, so I’ve decided to use the opportunity to make a pizza. I used Jamie Oliver’s pizza dough recipe, which can be found here. I was introduced to Portal Pizza in Exeter last month when our chambers had its AGM. I could not get over how tasty the pizza was (if a certain someone wasn’t too busy dropping the pizza into their lap during the AGM lol) and, in particular, the Nennellla, which consisted of tomato, mozzarella, piquante peppers, mixed mushrooms and… tenderstem broccoli.

This pizza is going to be a homage to the Nennella, but with focus on the tenderstem broccoli.

Getting the dough to the right consistency was very difficult, but adding a little 00 flour helped. It really does pay to let it rise for an hour or so in the fridge unless you are looking for the Italian-style flat crust.

Once the dough had risen, I gently stretched it out by hand (although I did use the rolling pin to ensure the dough was stretched evenly). It keeps a little more air in the dough and gives you those lovely puffed-up crusts. It wasn’t perfectly round, but that’s part of the charm of homemade pizza.

For the topping, I kept things simple. A generous layer of tomato puree, cheese and, the star of the show…. the tenderstem broccoli. I lightly blanched it beforehand so it would cook through in the oven without drying out, then finished it with a drizzle of olive oil and a pinch of salt.

I was tempted to add mushrooms and piquante peppers to stay true to the Nennella, but I wanted the broccoli to be the main event. Sometimes the best pizzas are the simplest ones.

I cook on a pizza stone in the oven, which helps with overall cooking, as it heats evenly and the base is just like a takeaway pizza. It also gives the crust a nice crisp finish while keeping the centre light and airy.

The finished result was far better than I expected. The tenderstem develops a slight char on the tips, giving it a lovely roasted flavour that works surprisingly well with the puree and the cheese. While I don’t think I’ll be putting Portal Pizza out of business any time soon, it certainly satisfied the craving.

Making pizza from scratch is one of those recipes that’s as much about the process as the end result. If you’ve never tried making your own dough before, I’d definitely recommend giving it a go.

Until the next “Take a Break” post, happy cooking!

Information

Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

Modern civil litigation is very document-heavy, with trial bundles frequently containing large numbers of documents, ranging from medical records to emails and photographs. Litigators can fall into the trap of assuming that if a document makes its way into a trial bundle, its contents will prove the case. That can sometimes be the case, but on many occasions it will not.

I recently conducted a fast-track possession claim (in which a reserved judgment was recently handed down) that required the Claimant landlord to prove an intention to undertake substantial redevelopment. The landlord relied upon an impressive collection of documents; planning permission, architects’ plans, contractor quotations and evidence of funding. Yet there was one glaring omission. The landlord did not provide a witness statement and did not give evidence. The Court was not satisfied that the burden of proving genuine intention had been discharged. For this reason (and a particular legal argument, for which I thank my chamber colleague, Vincent Mulcock, who provided it to me) the possession claim was dismissed.

The case illustrates a simple but fundamental proposition that documents rarely speak for themselves. Someone usually has to speak for them.

For ease, I will use my possession claim as an example to illustrate the point.

Pleadings do not amount to evidence

Whilst it is probably common sense, it is important to remind ourselves that the statement of case defines the issues, they do not prove the issues themselves. Facts pleaded remain allegation unless admitted or found by the Court to be established by evidence.

It can be understood why there would be that presumption. After all, the statement of case must be endorsed by a statement of truth. Practice Direction 16 includes particular information that must be included in particular cases, such as personal injury or credit hire.

In the Particulars of Claim for the possession claim, the following was pleaded:-

“These documents evidence that the Claimant has a genuine intention to carry out the works at the Property along with evidence that the works will be able to commence shortly after possession is obtained in granted by the Court.”

The pleading is not, of itself, evidence of intention. Reliance on the same in submissions cannot. However, it asserts that the documents evidence the genuine intention.

Documents proving some things, but not others

There are going to be some occasions where a document will prove something and does not require witness evidence.

Pratice Direction 32 para 27.2 states that:-

All documents contained in bundles which have been agreed for use at a hearing shall be admissible at that hearing as evidence of their contents, unless –

(1) the court orders otherwise; or

(2) a party gives written notice of objection to the admissibility of particular documents.

So if a document goes into a trial bundle, then it is deemed to be accepted as admissible evidence. However, that still requires the Court to include as much evidence as it sees fit, especially since documents are, for all intents and purposes, hearsay.

So at the possession trial, I could not submit that the documents were not admissible. They were in the bundle (as they were annexed to the Particulars of Claim. However, I argued they did not get the Claimant over the evidential threshold. I submitted that, as per Edwards v Thompson [1990] 2 EGLR 71, there were both objective and subjective tests. The objective test could be met with the documentation, i.e., whether it was feasible that the Claimant could undertake the work. He seemed to have the funds; he had the relevant permission to do the work, etc. He has acquired estimates. I contended that what he could not do was prove that he had the necessary intention with these documents. Instead, he needed to give evidence himself.

The documents could not demonstrate motive, intention, understanding, knowledge, belief, or state of mind. These aspects typically need evidence from an individual. This distinction is especially critical when the legal test involves a subjective element. If the Claimant’s intention is in question, the most straightforward and direct evidence usually comes from that party. As the Judge recognised in the Judgment, the Defendant contested the Claimant’s intention in her Defence, even before she instructed legal representation.

The problem for the Claimant was that it was they who proposed that both parties did not file witness statements and had no oral evidence at trial. This followed the resolution of a separate issue in the Claimant’s favour, which led them to believe oral evidence was unnecessary.

With no actual evidence from the Claimant, the Court found difficulty in finding intention.

The Wisniewski Problem

The absence of a key witness can do more than leave an evidential gap. evidential gap; it may permit the Court ot draw an adverse inference. I relied on the authority of Wisniewski v Central Manchester Health Authority [1998] PIQR 324. The Court of Appeal confirmed that adverse inferences may be drawn where a witness capable of giving material evidence is not called. In particular:-

• a Court may draw adverse inferences from the absence of a material witness;
• the inference may weaken the defaulting party’s case;
• there must be evidence capable of supporting the issue in the first place, and;
• there must be no satisfactory explanation for the witness’s absence.

In Wisniewski, the key witness was Dr Renninson, who was not in attendance (having gone to Australia after obtaining an appointment at a cancer centre there). Therefore, the Court drew adverse inferences in their absence. The Court of Appeal endorsed the approach. It was not about punishing the Defendant hospital, but about acknowledging that if the one person best placed to explain important facts does not give evidence, then the Court can legitimately question why that is. Further negative inferences were made as Dr Renninson could have attended remotely.

In the possession case, the Claimant’s intention was entirely absent. Ironically, he too was in Australia and was given permission to attend remotely. However, when the Claimant successfully established that the interest in the property was obtained from his brother without consideration whilst the Defendant was a tenant, the Claimant must have believed that oral evidence was not required. He did not even file a statement. He opted not to.

The Court simply could not infer from the documents, the Claimant’s intentions.

Why witness statements still matter?

A witness statement does more than exhibit documents (which is, of course, important for demonstrating the admissibility of the document. For example, being able to explain the genesis of the document or how it came into existence). There will be times when it is vital to add context to such documents to the extent that the document in turn bolsters or corroborates the evidence.

A witness statement provides the narrative that connects the documentary evidence, explains why particular decisions were made, and records the witness’s state of mind, what they intended, understood, or believed at the relevant time. It also provides accountability, as the witness signs a statement of truth and subjects themselves to cross-examination. The evidential value of witness oral evidence often lies not merely in what is said, but in the witness’s willingness to stand behind their account under oath and to have it tested in cross-examination.

In previous times, credit hire ‘basic hire rates’ evidence, it consisted of actual research elements that required the author to explain how the evidence was obtained. For example, this included calling particular car hire companies and inquiring about specific vehicles and availability. In these circumstances, witnesses would be required to attend court to be cross-examined. Now, with most evidence being captured in real time by software, it is usually the case that any witness statement simply adduces it to make it admissible but does not require the witness to attend.

Tips and tricks

Do not assume documents are enough

Always ask what fact a document actually proves. Documents may establish that something was said or done, but they do not always explain why it happened or what the parties understood at the time.

Identify subjective issues early

Where intention, belief, knowledge, understanding, or motive is in issue, documentary evidence alone is rarely sufficient. Witness evidence will often be essential.

Who are the key witnesses?

Identify the person best placed to answer the central factual question. If such a witness exists, think very carefully before choosing not to call them.

Use documents through witnesses

Documents are often most persuasive when explained by the person who created, received, or acted upon them. Context frequently determines weight.

Concluding remarks

Never underestimate the purpose of a witness statement when it comes to adducing and evidencing documentary evidence. When I undertook the CILEX Lower Rights of Audience course, the process of evidencing documents and other exhibits was best explained using a criminal law example. A knife is first adduced by the witness who discovered it. The next witness gives evidence as to how the knife was secured and transferred to the forensic laboratory. The forensic expert then gives evidence of their examination and findings. Piece by piece, the evidential chain is established until the court can properly conclude that the knife is connected to the alleged offender.

The same principle applies in civil litigation. Simply placing documents into a trial bundle is insufficient. Whilst their inclusion in the bundle makes them admissible, it does not follow that the court will attach the weight to them that the party intends. Documentary evidence does not speak for itself. A witness statement should explain what the document is, how the witness came to possess or create it, why it is relevant, and, where appropriate, what it demonstrates in the context of the issues before the court. Without that evidential foundation, a document may amount to little more than an unexplained piece of paper.

This is particularly important where a party seeks to rely upon correspondence, emails, invoices, contracts, photographs, or records. Unless a witness identifies those documents and explains their provenance and significance, the court may give them little or no evidential weight. The bundle is merely the repository of the evidence; the witness statement is what breathes life into the documents it contains. It is the mechanism by which documentary evidence is authenticated, contextualised and linked to the factual issues the court must determine.

Information

Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

The first time I had even considered this rule was when I was instructed on a tenancy deposit case and the Claimant had been granted a dispensation for the other tenant not to be joined to the proceedings. I suppose, being from a personal injury background, where parties would have their own remedy, the consideration of the point only came into my orbit when the causes of action were united and the Courts would look to consolidate matters, using one case as a lead case.

A prime example of shared remedies would be a housing disrepair case. What if one tenant wants to pursue the claim for damages and the other one does not? How does the matter proceed if at all? CPR 19.3 deals with this.

Pre CPR

The Court of Appeal considered consolidation (or as the case may be, deconsolidation) in the matter of Lewis and Another v Daily Telegraph Ltd (No. 2) [1964] 2 QB 601 (CA), which was a libel case of John Lewis and Rubber Improvement Limited against Daily Telegraph and Associated Newspapers. There were, essentially, four cases. The pleadings were effectively identical, and the two Defendants admitted publication but denied the defamatory meanings alleged. The four cases were consolidated into two cases (against each publisher) and at trial were awarded. The publishers appealed, seeking that the cases be deconsolidated.

The Court of Appeal held that the actions should remain consolidated because the issues were substantially the same and could be tried more conveniently together. The Court also held that co-plaintiffs must normally have the same solicitor and legal representation unless the Court orders otherwise. The appeal for deconsolidation was therefore dismissed.

CPR 19.3

CPR has a specific rule dealing with this:-

Provisions applicable where two or more persons are jointly entitled to a remedy

19.3

(1) All persons jointly entitled to the remedy claimed by a claimant must be parties unless the court orders otherwise.

(2) If any such person does not agree to be a claimant, he must be made a defendant, unless the court orders otherwise.

(3) This rule does not apply in probate proceedings.

So what does this mean? CPR 19.3 aims to ensure that the handling of litigation involving jointly owned rights is handled jointly. When multiple individuals share a single legal remedy, the Court should resolve their rights through a single set of proceedings rather than multiple actions. This rule helps prevent duplicate cases on the same issue, avoid conflicting decisions, ensure all affected parties are present, and promote fairness and efficiency in the judicial process. By requiring all joint owners to participate, the rule safeguards both parties and the Court from undertaking fractured litigation.

A person is jointly entitled to a remedy when the law gives multiple individuals an indivisible legal right. This right belongs to them collectively, not separately. Examples include joint property owners seeking possession or damages, co-contracting parties enforcing contractual rights, co-trustees acting for a trust, and co-owners of intellectual property pursuing infringement relief. The remedy belongs to all joint owners together, confirmed by recent.

In housing, this is can be damages for housing disrepair, or even a tenancy deposit breach under s214 Housing Act 2004.

So how does it work in practice?

CPR 19.3(1) states that all persons jointly entitled must be joined as parties unless the Court orders otherwise. This follows the common law that all sharing a joint cause should litigate together. Not joining all parties may lead to procedural issues and prevent full relief. However, the phrase “unless the court orders otherwise” allows the Court discretion to proceed without some parties if justice requires.

Where a prospective Claimant does not want to sue

Practical difficulties can occur when one joint entitled person refuses to participate in litigation. CPR 19.3(2) requires that unwilling joint owners be joined as Defendants, unless the Court says otherwise. This achieves two goals: it gives the Court jurisdiction over all joint rights holders and allows the willing claimant to proceed without obstruction. Joining an unwilling person as a Defendant does not mean wrongdoing; it is simply a procedural step to include all necessary parties.

The exception to the rule is where the matter is probate, as it has its own rules under CPR 57.

Step by step guide

Step 1 – the first step is to determine whether CPR 19.3 applies by establishing if the parties have a joint legal entitlement, which exists when the law recognises an indivisible right shared by multiple persons, such as joint landowners, co-contracting parties, co-trustees, or joint copyright, patent, or trademark owners pursuing infringement claims. Courts have confirmed that CPR 19.3 only applies when there is a genuine joint legal remedy.

Step 2 – Identify every prospect Claimant who is entitled to the remedy once CPR 19.3 applies. Before starting, check documents like titles, contracts, trust deeds, partnership agreements, and company records to find all legal owners. Missing any may cause delays or prevent the court from granting full relief.

Step 3 – Verify if all joint owners are prepared to act as Claimants. The next step is to confirm each joint owner’s willingness to participate. If everyone agrees, list them as Claimants on the Claim Form.

Step 4 – If someone with a joint right doesn’t want to be a Claimant, they must be added as a Defendant unless the court says otherwise. This is just a procedural step, not an accusation of wrongdoing. The reluctant party is joined because they have a legal interest in the case, allowing the Claimant to proceed and ensuring the Court can hear everyone involved.

Step 5 – When issuing proceedings, list every willing joint owner as a Claimant and any unwilling joint owner as a Defendant. Identify the substantive Defendant in the usual way and ensure that the Particulars of Claim explain why the unwilling joint owner has been joined as a Defendant pursuant to CPR 19.3(2). It is good practice to include a short explanation confirming that the party has been joined solely because CPR 19.3 requires their participation.

Step 6 – Sometimes proceedings may have already commenced before it becomes apparent that another jointly entitled person should have been included. In those circumstances, the party must be added under the Court’s powers contained within CPR Part 19, particularly CPR 19.2 and CPR 19.4. Depending upon the stage of proceedings, the parties may consent to the addition, an application may be required, or the Court may order the addition of the necessary party on its own initiative where appropriate. The objective is to ensure that all jointly entitled persons are before the Cour before final judgment.

Step 7 – Consider whether the Court may dispense with joinder. CPR 19.3 includes the qualification “unless the Court orders otherwise,” which grants the court discretion in exceptional cases. The Court may determine that joining every jointly entitled person is unnecessary or inappropriate when justice requires an alternative approach. Nonetheless, the general rule remains that all jointly entitled persons should participate unless the Court explicitly directs otherwise.

Conclusion

CPR 19.3 is a procedural rule that is easily overlooked but can have significant consequences if ignored. Before proceedings are issued, practitioners should always consider whether the remedy sought is jointly owned and, if so, ensure that all persons jointly entitled are before the Court, whether as Claimants or, where necessary, Defendants. Taking the time to address joinder issues at the outset can avoid unnecessary applications, delays, and challenges later in the litigation. Ultimately, the rule reflects the overriding objective by promoting fairness, efficiency, and finality, ensuring that disputes involving joint rights are resolved in a single, coherent set of proceedings rather than through fragmented litigation. 

Information

Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

Transferring to the bar meant I didn’t walk into chambers naïve regarding what it would be like to be a self-employed advocate. My first hearing was like any other court hearing, except I was nearly late because of an accident on the M5 during my coffee break. How I appeared in court was no different, and using a different title instead of the usual one had no impact whatsoever.

The main difference I value most is being part of chambers. Over the past eight years, I have mostly been self-employed and worked alone. While I interacted with people, it was mainly through phone calls or emails.

12th July 2026 means I have been a practising member of the Bar and a tenant at Magdalen Chambers for six months. It might as well have been six years. I do not think I’ve ever felt so stable in terms of my career and, whilst that should perhaps feel disconcerting, this has been the most content I have ever felt. It’s better not to have any regrets.

What I did not appreciate before joining was just how much I had been missing. Looking back, I had become so accustomed to working independently that I had accepted it as normal. I never realised quite how fulfilling it could be to belong somewhere.

For the first time in my professional life, I feel genuinely supported. Chambers is not simply a collection of self-employed advocates who happen to share an address; it is a community of people who are invested in one another’s success and wellbeing. There is always someone willing to offer guidance, to sense-check an idea, to answer what feels like a daft question, or simply to reassure you that you’re approaching something in the right way. Equally, there are opportunities to do the same for others, and there is something about being able to give back in the same way that others have given to me.

Sometimes it is not even about the law. It is knowing that someone will happily answer the phone, listen for as long as you need them to, and spend two hours talking through a case and whatever is on your mind simply because they care that you’re alright. These things don’t appear on chambers’ profiles or on a fee note, but they are the moments that have mattered most. They are the quiet reminders that you are not expected to navigate this profession alone, despite being a profession where you are very much alone.

When I joined chambers, I never intended to practice housing law; I had no interest and expected my career to go elsewhere. However, as I became involved, I grew to appreciate the intellectual challenging/nuanced arguments. I found myself almost addicted to developing these arguments. Ironically, the law I aimed to avoid became the most absorbing area of my practice. I even found myself joining Advocate to help out on a pro bono basis and becoming legal aid registered so I can accept instructions from those eligible for legal aid.

When I look back at where I was six months ago, I realise this was never simply a change of profession. It was finding where I was meant to be.

There is strange comfort in finally feeling settled. Six months in, I have no doubt that joining Magdalen Chambers was the best professional decision I have ever made. More than that, it has been one of the best personal decisions too. I have found purpose, friendship, support and a sense of belonging that I never knew I was missing until I experienced it.

For the first time, I am exactly where I should be. And, if I’m fortunate enough to have the choice, I hope it is where I will remain. Someone said they can’t imagine a world where they weren’t practising at the bar. I wholeheartedly agree.

N.B….. Funny how six months can change your perspective more than six years ever could.

Information

Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

Questions sometimes arise as to whether a party in proceedings has the mental capacity to conduct litigation. Where a party lacks such capacity, they are a ‘protected’ under CPR Part 21 and must act through a litigation friend. If someone such as a family friend cannot act as a litigation friend, then one may need to contact the Official Solicitor to act a litigation friend.  The issue is critical because the court generally cannot make substantive orders until a litigation friend has been appointed. 

I have faced this issue a few times in housing matters and, in particular, a recent committal hearing where those instructing me raised the question of capacity. After a conference with their client, I was satisfied that there was a question about his capacity. Now he has the opportunity to have his capacity assessed by an appropriate expert.

The position of law on capacity

A protected party is someone who lacks capacity to conduct legal proceedings within the meaning of the Mental Capacity Act 2005 (MCA 2005). A protected party must have a litigation friend to act on their behalf, and the court has no general power to dispense with this requirement. Until a litigation friend is appointed, only limited procedural steps can be taken without the court’s permission. Any steps taken before appointment may be ineffective unless the court orders otherwise. Consequently, a possession order cannot normally be made against a protected party until proper representation is in place. 

The procedural rules assume that the court knows whether a party is a protected party, but they provide little guidance on how a dispute about capacity should be resolved. The MCA 2005 sets out the legal test for capacity but not the process for determining capacity in civil litigation. This creates practical difficulties for judges and practitioners, particularly where a party may:-

• deny there is any issue with their capacity
• refuse to undergo assessment; or
• lacks insight into the difficulties affecting their decision-making. 

Under section 2(1) MCA 2005, a person lacks capacity if, at the relevant time, they are unable to make a decision because of an impairment of, or disturbance in the functioning of, the mind or brain. Two elements must therefore be established:

1. An impairment or disturbance of the mind or brain; and
2. An inability to make the relevant decision because of that impairment or disturbance. 

A person is unable to make a decision if they cannot:

• understand relevant information;
• retain that information;
• use or weigh that information as part of the decision-making process; or
• communicate their decision. 

It is those key factors that we, as practitioners, may identify but cannot possibly make any determination about because they are outside our area of specialism.

Capacity to conduct litigation

The Supreme Court in Dunhill v Burgin confirmed that the issue is not whether the claimant was capable of understanding and making decisions within the confines of the case as it happened to be presented by her lawyers. Rather, the court must determine whether the claimant had the capacity to conduct the underlying claim or cause of action that was genuinely available to her. Capacity is therefore assessed by reference to the litigation that should properly have been pursued, not simply the narrower or inaccurately formulated case advanced on her behalf.

Capacity is therefore:

• decision-specific and issue-specific;
• assessed by reference to the proceedings as a whole; and
• dependent on the complexity of the issues involved. 

A person may have sufficient capacity to conduct straightforward litigation but lack capacity to manage a more complex case. 

What to look out for as indicators that capacity may be an issue

A potential capacity issue should be considered where there is evidence that the party struggles not merely to understand information, but to use and weigh it rationally. Relevant indicators may include:

• delusional, paranoid or irrational beliefs affecting their approach to the litigation;
• obsessive or compulsive behaviours.
• a complete lack of insight into behaviour that has led to the proceedings;
• an inability to understand the strengths and weaknesses of the case;
• difficulty giving coherent instructions;
• an inability to evaluate settlement proposals or compromises; or
• an inability to appreciate the consequences of complying with, or breaching Court orders. 

There are, of course, indicators and do not equate to diagnoses of absence of capacity.

The fact that a party can understand information at an intellectual level does not necessarily establish capacity. They may still lack capacity if they cannot properly weigh that information because of a mental impairment or disturbance. 

Information

Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

Witness statements remain the backbone of civil litigation in England and Wales, intended to capture, in a clear and reliable form, the evidence a witness would otherwise give orally at trial. In recent years, however, the courts have placed increasing emphasis on strict compliance with CPR 32 and Practice Direction 32, particularly where the witness is not fluent in English. The requirement that a statement be drafted in the witness’s “own language”, coupled with rules on statements of truth and translation, has given rise to a line of authority clarifying both the purpose of these provisions and the consequences of non‑compliance.

This is a broad-brush reminder of what the law has been since 2020.

CPR and Practice Direction 32

The standard approach for witnesses unable to speak English is typically guided by PD 32 paragraph 18.1, as CPR 32.8 states that witness statements must meet the criteria outlined in Practice Direction 32.):-

“The witness statement must, if practicable, be in the intended witness’s own words and must in any event be drafted in their own language, the statement should be expressed in the first person and should also state……….”

Further, PD 32 paragraph 23.2 sets out the requirements 

Where a witness statement is in a foreign language—

(a) the party wishing to rely on it must—

(i) have it translated; and

(ii) file the foreign language witness statement with the court; and

(b) the translator must sign the original statement and must certify that the translation is accurate.

These specific changes occurred in April 2020, although there was a similar rule regarding paragraph 23.2, but not paragraph 18.1.

Correia in mind

In the case of Correia v Williams [2022] EWHC 2824 (KB), the High Court refused to overturn a Circuit Judge’s decision to strike out the Claimant’s evidence, which was prepared in English by the Claimant’s Portuguese-speaking solicitor. The High Court also did not challenge the Circuit Judge’s findings that the methods to remedy the defective statement were insufficient. In essence:-

• Providing oral evidence in chief, instead of relying on the defective statement, was not considered to be a fair trial, as the Defendant would be ambushed at trial.
• Translate the existing English witness statement back into Portuguese, which was considered to be double hearsay/translation (the first being the English preparation fo the statement, and then translated into Portuguese).
• Simply reading his statement back in Portuguese, rejected for the same reason above.
• Adjourning to allow the Claimant to get a new statement, which would be unfair, allow a change of evidence and was disrupting the trial

This put significant pressure on Claimant Solicitors, who at the time would have believed there was no right to recover translation fees under the fixed costs regime until a certain case reached the Court of Appeal.

Exaggerated example of translation issues

I practiced karate for about twenty years, starting at age 5-6 with a traditional association using Japanese terminology. I learned many Japanese phrases in karate. Here are a few kicks:-

• Roundhouse kick – Mawashigeri – 回し蹴り
• Knee kick – Hizageri – 膝蹴り
• Front kick – Maegeri – 前蹴り

Many assume ‘geri’ means ‘kick,’ but it actually means diarrhoea when used in isolation (下痢). For a kick combination, say ‘Keri-waza’ since ‘keri’ means ‘kick’ alone. Geri only becomes a kick if there is a word that precedes it, so for example, mawashi-geri.

This is, of course, an exaggerated example showing how, depending on context, translating a word can cause it to lose its meaning and why people might be more impressed with Bruce Lee’s diarrhoea rather than his kicks.

Own language can include English if the sufficiently fluent

In the following year, Afzal v UK Insurance Ltd [2023] EWHC 1730 (KB) came along.

The claimant brought a personal injury claim following a road traffic accident and at trial, the Circuit Judge refused to admit the Claimant’s witness statement because it was in English rather than his first language (Urdu), treating this as a breach of PD 32 para 18.1. The Judge also refused an adjournment to correct the defect, with the result that the Claimant had no admissible evidence and his claim failed.

On appeal, the High Court allowed the appeal, holding that the Circuit Judge had misinterpreted “own language” in PD 32. The High Court found that it does not mean a witness’s first or native language, but includes any language in which the witness is sufficiently fluent to give evidence, including under cross‑examination. Since the Claimant was competent in English and had given instructions in it, the statement should not have been excluded without first assessing his actual proficiency.

This took a significant amount of pressure off parties, as many witnesses were being compelled to write statements in their first language, even though many primarily used English. I had an experience where some witnesses said they stopped thinking and dreaming in their first language.

The Santiago endevour

In Santiago v Motor Insurers’ Bureau [2023] EWCA Civ 838, the Claimant, a Portuguese speaker with limited English, brought a personal injury claim which settled on the day of trial. An interpreter had been instructed to attend the trial (and costs had been incurred in preparing his Portuguese witness statement), and the trial Judge reluctantly refused to allow recovery of the interpreter’s fee, considering herself bound by Aldred v Cham [2019] EWCA Civ 1780, which had been understood to exclude such costs in fixed costs cases. 

The Court of Appeal overturned that decision, holding that interpreter (and by implication translation) fees are recoverable as a disbursement under CPR 45.29I(2)(h) where reasonably incurred as a particular feature of the dispute. It rejected the narrow approach derived from Aldred, emphasising that the cost of interpretation is essential to enable a party or witness to participate fully and give their best evidence, and therefore falls within the proper scope of recoverable disbursements in fixed costs litigation.

Santiago was remitted to the County Court for assessment of the translation fees, which then became appealed (unsuccessfully) to the High Court, and the Defendant is currently seeking permission to appeal from the Court of Appeal:-

Tips for drafting non-english witness statements

Preparing a compliant witness statement for a non‑English speaking witness requires strict adherence to CPR PD 32 and a careful, structured process. The starting point is that the statement must be taken in the witness’s own language, not drafted in English and translated afterwards. In practice, this means the solicitor should obtain the evidence with the assistance of a suitably qualified interpreter, ensure the statement records how it was taken (e.g. via interpreter, in person or remotely), and produce a version written in the witness’s own language which accurately reflects their own words and evidence.

Once the foreign‑language statement is prepared, it must be signed by the witness and accompanied by a proper certified translation into English, with both versions filed at court. The translator must also certify the accuracy of the translation, and the statement of truth must appear in the witness’s own language.

Crucially, the article emphasises that the “old” approach (drafting in English and simply reading it back) is no longer acceptable, as it risks non‑compliance and potential exclusion of the evidence, as seen in cases like Correia. Proper preparation, therefore, requires building the statement correctly from the outset, ensuring authenticity, transparency of process, and compliance with the Practice Direction. 

Information

Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

Legal Futures reported last week that the transfer of delegated regulation by CILEX from CILEX Regulation to the SRA has ceased.

According to the Legal Futures article, it was the SRA that ended talks. Contained within the SRA’s business plan was confirmation that it will not carry out further work on redelegating the regulation of CILEX professionals, citing the need to focus on its existing remit. It was also stated that SRA chief executive, Sarah Rapson, did not rule out the possibility of returning to this. in the future.

CILEX Regulation and CILEX had a very public civil war on the topic, and no doubt, Mazur probably re-aligned their priorities. For those who don’t know, CILEX delegate their regulation to CILEX Regulation, just as the Law Society to the SRA and the Bar Council to the BSB.

CILEX had sought to redelegate regulation of its members to the SRA, primarily to address what it saw as duplication and inefficiency in regulating a profession in which most members already work within SRA‑regulated firms. It argued that a single regulator would simplify the system for consumers and employers, improve clarity about accountability and standards, and deliver greater consistency across the legal services market. They initially aimed to rebrand their regulated lawyers as ‘Chartered Lawyers,’ but this was quickly changed to ‘Chartered CILEX Lawyers’ due to the backlash.

Before talks ended, the SRA publicly supported the proposal, stating that regulating CILEX members had the potential to deliver clear public‑interest and consumer benefits by simplifying what it described as a fragmented regulatory landscape. It repeatedly stressed that the change would not affect the identity, standards, or regulation of solicitors, that CILEX lawyers would retain distinct routes to qualification and codes of conduct, and that there would be no cross‑subsidy from solicitors. The SRA also framed its involvement as consistent with its Legal Services Act objectives, while acknowledging that significant further work and consultation were required before any final transfer could occur.

CILEx Regulation opposed the redelegation, largely because it believed the proposal was neither necessary nor justified in the public interest. CILEX Regulation argued that CILEX had failed to produce robust evidence that transferring regulation to the SRA would improve consumer protection, warning instead that it could reduce existing safeguards and increase confusion rather than clarity. It also maintained that the proposal was potentially unlawful, undermining the Legal Services Act model of independent regulation, and represented an existential threat to a specialist regulator which it said had been operating effectively, proportionately and in the consumer interest.

The Law Society opposed the proposal on the basis that it had not been shown to deliver clear public‑interest benefits and risked increasing, rather than reducing, consumer confusion about professional titles and regulatory responsibility. It argued that CILEX and the SRA had failed to provide robust evidence that transferring regulation would improve consumer protection or regulatory outcomes, particularly given that existing arrangements were functioning adequately. The Society also expressed concern that the move would divert the SRA from its core regulatory role and blur important distinctions between solicitors and other legal professionals.

I noticed many misconceptions about the talks. For instance, some suggested that the SRA, through supervision, regulates CILEX members. While it’s true that the SRA can issue a section 43 Order to prevent a CILEX member from working in an SRA law firm, the regulation is quite different. It would mean the SRA has two types of regulated lawyers, but the core issue with CILEX is the subcategories of lawyers, which CILEX plans to expand. I argued that SRA regulation of CILEX members alone wouldn’t simplify transferring onto the solicitors’ roll, as regulation and qualification are separate, and training pathway differences remain crucial. I believe that presenting redelegation as a way to improve professional mobility could mislead CILEX practitioners and distract from the real regulatory issues.

Overall, I believe Mazur is likely a key influence in the SRA ending discussions. The SRA faces numerous regulatory challenges, including matters with the PM Law group and other reforms like the potential closure of client accounts. Regardless, I think the best course is for CILEX to reconcile with CILEX Regulation and focus on supporting their members, who now have considerable damage control to manage after Mazur’s fallout.

Information

Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

Statutory penalties under s214 Housing Act 2004 can be standalone claims, or they can be used as a partial defence to a possession claim because the tenant is in arrears. Whilst the legislation came into force almost twenty years ago, there is very little by way of binding authority on the topic. In fact, Charterhouse v Lowe will be the first tenancy deposit case to reach the Supreme Court.

One of the few binding authorities relied on in tenancy deposit cases is Superstrike Ltd v Rodrigues [2013] EWCA Civ 669. It is used to justify multiple breaches where a deposit is not protected, the Assured Shorthold Tenancy ends, and a statutory periodic tenancy comes into existence under s5 Housing Act 1988. Whilst this will fall away following Renters’ Rights Act 2025, tenancy deposit claims have a six year limitation period and therefore there are still many prospective claims that are not affected by the introduction of the legislation.

This article explains the role of Superstrike.

Superstrike explained

To understand the role of Superstrike in tenancy deposit claims, it is important to understand what the Court of Appeal were considering and their decision.

The landlord, Superstrike Limited, had granted an AST to Mr Rodrigues for a year. It was granted in January 2007, and s213 didn’t come into effect until April 2007. In January 2008, the AST ended. Mr Rodrigues remained in the property, leading to an automatic statutory periodic tenancy as per s5 of the 1988 Act. Superstrike Limited kept the deposit but failed to protect it in an authorised scheme and did not serve any prescribed information.

In June 2011, Superstrike Limited issued a section 21 notice and later obtained a possession order. Mr Rodrigues  applied to have the possession Order set aside on the basis that Superstrike Limited had not complied with s213 of the 2004 Act. 

A DDJ set aside the possession Order, finding that Superstrike Limited had not complied with s213. A CJ allowed Superstrike Limited’s appeal on the basis that when Superstrike Limited received the deposit, s213 was not in force. Consequently, Mr Rodrigues appealed to the Court of Appeal. 

The Court of Appeal reaffirmed that a statutory periodic tenancy arising under s 5 Housing Act 1988 is not a continuation of the fixed term but a new tenancy. Going one step further, the Court of Appeal determined what was deemed to have occurred at the end of the AST and at the start of the statutory periodic tenancy:-

“When the statutory periodic tenancy came into existence, the landlord held the deposit as security for the performance of the tenant’s obligations under that tenancy, and that can only sensibly be analysed as the tenant having paid the deposit to the landlord and the landlord having received it at that time.”

In essence, the deposit was treated as being returned to Mr Rodrigues and then back to Superstrike Limited, even though money had not physically changed hands. Therefore, it was deemed that Superstrike Limited was in breach of s213. The Deregulation Act 2015 amended the law to create s215B of the 2004 Act so that any statutory periodic tenancy came into existence on the 23rd June 2015, where a deposit was paid and protected, did not need reprotection.

Application of Superstrike for multiple breaches

Tenants argue that Superstrike means that a failure to protect the deposit within the first 30 days is a breach number one, but because the statutory periodic tenancy is a completely new tenancy, it amounts to a new breach when the deposit is not protected within 30 days of the commencement of the statutory periodic tenancy.

The role of s215B is regularly relied on in challenges, with the argument that it makes Superstrike redundant. However, tenants say that if there had been no protection at all, then the amendments by s215B would not have taken effect. This would mean that there would be two breaches for the two tenancies, each attracting a penalty between one and three times the deposit.

County Court interpretations of the argument

There hasn’t been a binding authority on the application of this argument. However, here are a few cases within the County Courts:-

Szorad & Anor v Kohli [2023] EW Misc 12 (CC) 

A County Court appeal considered if a landlord who failed to protect a tenancy deposit owed multiple penalties under section 214 Housing Act 2004: one for non-compliance at the start of a fixed-term, and another when a statutory periodic tenancy followed. The deposit was never protected or returned. Tenants argued for separate penalties, claiming the periodic tenancy was a new one. The DDJ initially rejected this, granting a single penalty at three times the legislation did not create a statutory deposit, stating that entitlement just because a new tenancy arose. 

On appeal, HHJ Johns KC allowed the tenants’ appeal, ruling that multiple penalties are mandatory per Superstrike Ltd v Rodrigues. The Court held that a statutory periodic tenancy is a new tenancy, requiring the deposit to be paid again at the start. Continued non-compliance by the landlord causes separate breaches, each attracting penalties. The impact of s215B did not alter this, assuming Superstrike is correct, and it deems compliance only if the landlord complied initially. Since the landlord never complied, s215b did not apply, entitling tenants to a second penalty, assessed at twice the deposit. 

Sturgiss & Anor v Boddy & Ors [2021] EW Misc 10 (CC)

Another County Court appeal involved a landlord who granted an AST in 2004 to four joint tenants, took a single deposit, and allowed repeated changes in occupants over years without formal documentation. Incoming tenants reimbursed outgoing ones for their share of the original deposit, but no additional deposit was paid or protected. Two later tenants claimed penalties under s214 of the 20004, arguing each change of occupier was a surrender and new tenancy, triggering deposit protection. The DDJ dismissed the claim, ruling the occupants were licensees, no surrender occurred, and the claimants lacked standing because they had not personally paid a deposit.

On appeal, HHJ Luba KC fully upheld the tenants’ case. He ruled that the occupiers were tenants with exclusive possession for a periodic rent, not licensees. The arrangements were considered surrender and re-grant of assured shorthold tenancies each time, despite limited landlord involvement. Following Superstrike, the Court stated that the original deposit was effectively paid again at each re-grant, even though no new money changed hands, because the landlord’s system involved a rolling deposit carried forward across tenancies. This meant the landlord broke s213 at each re-grant and faced penalties under s214. The court, exercising discretion, awarded the minimum penalty of one times the deposit for each breach, citing low culpability, and confirmed multiple penalties are possible for successive tenancies from surrender and re-grant.

Lowe v Charterhouse [2022] EW Misc 8 (CC) 

As per Sturgiss above, Luba KC did not find against the principle of Superstrike, however the issues surrounding this tenancy deposit claim was whether the prescribed information provided was sufficient for the purposes of s213(6) of the 2004 Act. The High Court dismissed the tenant’s appeal and so has the Court of Appeal. The Supreme Court will be hearing the final appeal in Novmeber 2026.

Other examples not reported (in unreported cases)

That being said, whilst I have been unable to find any transcripts or judgments where the Court choses not to follow the approach of Superstrike in allowing multiple penalties, I have experienced this myself.

In one fast track trial heard at the County Court at Newport (Gwent), the District Judge took the view that there was no binding authority that applied Superstrike in this manner and said he that it was purely to deal with the issue of s21, which of course was not the purpose of the trial before him.

I did not seek permission to appeal and whilst I set out the grounds for an appeal to those instructing me, I think they probably accepted that it was not economical to do so, given the variable increase was not going to be substantial.

Concluding remarks

Logically, the approach adopted by tenants has significant merit, despite not having any binding authroity that says it is correct to apply Superstrike in this manner to justify a second breach.

It has to be said for the avoidance of doubt, this can only apply where the landlord has failed to protect the deposit by the time the statutory periodic tenancy comes into existence. This is because s215B specifically states that a landlord need not reproect and resend the prescribed information once protected.

This can be a problem for landlords that allow a statutory periodic tenancy to come into effect, even by a day, before creating a short AST of six months, allowing that one to lapse, creating a second statutory periodic tenancy before entering into a third AST.

Tenants will need to ensure they can demonstrate that there were delays between the previous AST ending and new one being entered into, along with evidencing that the deposit was not protected. Landlords will need to either demonstrate evidence to the contrary or make sensible offers to discourage issuing proceedings, where costs will start to accrue.

The Renters’ Rights Act 2025 abolishes fixed term ASTs and therefore all ASTs will automaticallu become Assured Periodic Tenancies. It will mean that statutory periodic tenancies will not come into effect and therefore landlords will be limited to a single breach (which occurs after the first 30 days of reciept of the deposit.

Information

Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.