Category: AJH Advocacy

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.

Stage 3 hearings were originally conceived as streamlined disposal proceedings, designed to address simple, straightforward arguments. However, as I’ve experienced over the last five years, with Courts increasingly encountering more complex and nuanced arguments.

In some instances, this complexity necessitates detailed and constructive submissions, including reliance on relevant case law. There are still occasions where disputes can be resolved by drawing on legal principles that are not modern. In one recent matter, for example, I successfully advanced an argument on behalf of a defendant to defeat a claimant’s £4,200 bicycle claim by relying on case law dating back to the nineteenth century.

The Stage 2 negotiations

The Claimant advanced a claim for £4,200, said to represent the cost of replacing a carbon‑fibre road bicycle. The basis of the claim was an expert report suggesting that it was “more likely than not” that the structural integrity of the carbon frame had been compromised, but recommended a ‘non-destructive test’ to determine if that was the case or not.

In the stage 2 pack, the Claimant invited the Defendant to pay for the non-destructive test, but by this point the Claimant was on the litigation slide towards a stage 3 hearing, with no return save for settlement.

The Stage 3 hearing

The claim for the bicycle immediately drew judicial scrutiny. The District Judge expressed surprise both at the value of the claim and at the limited amount of supporting evidence, noting in particular:-

1. There was no explanation as to why further testing had not been undertaken
2. The report did not identify the age of the existing bicycle
3. There was no evidence as to its specification or pre‑accident value

My opponent made the analogy that the bicycle’s frame was akin to a motorcycle helmet. There was no way to know whether the structural integrity was compromised, and whether it was sensible to replace it in full.

My submission was the proposition that the Claimant’s position was untenable because it was not in keeping with the principles set out in McGregor on Damages. In particular, I referred the Judge to the case of The Gazelle [1844] 166 ER 759, which the Judge quite quickly identified as being about a boat. I said the following quote:-

“If that party derives a greater benefit than mere indemnification incidentally, it arises only from the impossibility of otherwise effecting such indemnification… which the law will not place upon him.”

I submitted that the Claimant could have had a legitimate claim for the cost of a brand new bicycle because such bicycles do not have a second hand market like motorvehicles (as per Bacon v Cooper (Metals) [1982] 1 ALL ER 397).

I argued that betterment was only appropriate when it was completely unavoidable. If there was no such market, and carrying out a repair was impossible, the claimant would be able to go down that route. However, I said that the claimant quite clearly failed on that issue because it did not undertake the non-destructive testing. It was clearly recommended by the engineer to ensure that the carbon frame was not compromised, and because no testing was done, there was no way the Claimant could prove it was impossible.

I referred the Judge to the Court proceedings pack, which showed that the Claimant had requested that the Defendant pay for the testing. I said this was too late and that the Claimant should have done so sooner. I also said that costs weren’t an issue because the Claimant had the right under the pre-action protocol to request an interim payment, which the Defendant could not refuse if a medical report was uploaded.

The Judge, in his Judgment, found that the court had not reached the point in the analysis that the repairs were impossible, as the Claimant did not fulfil the initial requirement. Since there was no evidence that repair was impossible, the claim was considered a claim for betterment. As a result, the £4,200 replacement claim was dismissed, and recovery was limited to the £700 repair cost suggested by the Defendant and included in the Court Proceedings Pack.

Concluding remarks

The doctrine from ‘The Gazelle” reminds us that damages law is based on indemnity, not opportunity. A Claimant cannot circumvent the acquisition of evidence or practical steps like testing or repairs for a better outcome disguised as necessity. Betterment is only allowed when truly unavoidable, not for convenience or lack of investigation.

Given the prospective outcome of having what appears to be a significant windfall (a legitimate windfall nonetheless), it is important that Claimants appropriately demonstrate that it is impossible to avoid betterment. .

It is also important for Claimants to demonstrate that there are no second-hand markets available to support the proposition that they should receive a substantial sum of damages, rather than lower damages subject to diminution in value. 

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 introduction of the Fixed Recoverable Costs (‘FRC’) regime in low value personal injury had created a predictable prescription for costs, but it did not eradicate disputes from occurring about disbursements and, on occasion, whether a different FRC regime applied.

However, the landscape has evolved significantly. The expansion of the FRC regime marks a major shift in how costs are determined across a broader range of cases. With more claims now falling within fixed costs, the scope and importance of Fixed Costs Determination Hearings have also changed considerably.

What is a Fixed Costs Determination Hearing?

When there is a dispute on the relevant costs and disbursements recoverable, and the parties cannot resolve the issue, then the Court is asked to determine this. However, this is not an assessment of costs in the usual manner, nor a summary nor a detailed assessment of costs.

This has always been the inference from CPR 44.6:-

Procedure for assessing costs

44.6

(1) Where the court orders a party to pay costs to another party (other than fixed costs) it may either –

(a) make a summary assessment of the costs; or

(b) order detailed assessment of the costs by a costs officer,

unless any rule, practice direction or other enactment provides otherwise.

(Practice Direction 44 – General rules about costs sets out the factors which will affect the court’s decision under paragraph (1).)

(2) A party may recover the fixed costs specified in Part 45 in accordance with that Part

The obiter decision of Doyle v M&D Foundations & Building Services Limited [2022] EWCA Civ 927  affirmed the same where Phillips LJ (in para 47) considered the position on whether fixed costs and disbursements, were subject to summary or detailed assessment:-

47. In Adelekun Newey LJ noted at [19] that Part 45 does not itself explain how the amount recoverable in respect of disbursements under rule 45.29I is to be determined (the assumption being that no determination at all is necessary in relation to fixed costs other than disbursements), but recorded that it was common ground between counsel that the provisions in Part 47 relating to detailed assessment would apply. In my judgment the position agreed by counsel in that case was not correct, for the following reasons:

i) As referred to above, the provisions as to detailed assessment in rule 44.6 make it clear that such assessments do not apply to the fixed costs regime set out in Part 45. 

ii) Those provisions were referred to by Master Leonard (sitting in the Senior Courts Costs Office) in striking out a Notice of Commencement of detailed assessment proceedings in Nema v Kirkland [2019] 8 WLUL 301 (see [53]). At [54] Master Leonard held that a party seeking determination of the number of disbursements should do so by an interim application under rule 45.29H, which provided for fixed costs of such application, rather than by the more expensive process of detailed assessment. 

iii) In so holding, Master Leonard relied on the unreported decision of Master Howarth in Mughal v Samuel Higgs & EUI Limited (SCCO unreported, 6 October 2017), also striking out a Notice of Commencement of detailed assessment proceedings. Master Leonard summarised Master Howarth’s reasoning as follows:

“…the whole purpose of the fixed costs regime was to avoid the necessity of either summary or detailed assessment. It was not open to the claimant to draft a bill of costs and use the detailed assessment procedure, so increasing costs in proceedings where fixed costs were meant to apply… the appropriate course, in fixed costs cases, was for an application to be made to the court.”

iv) Mr Mallalieu pointed out (in written submissions following the conclusion of the oral hearing) that the parties in Nema did not draw Master Leonard’s attention to two provisions in Practice Direction 47: (i) paragraph 5.7, which provides that if the only dispute between the parties on detailed assessment concerns disbursements, the bill of costs shall be limited to the title page, background information, a list of disbursements and brief submissions as to those disbursements; and (ii) paragraph 13.5, which provides for such a dispute to be determined on the papers without a hearing. Whilst it is true that those provisions would limit the complexity and cost of disputes as to disbursements on a detailed assessment, those aspects being significant factors in Master Leonard’s decision, they do not undermine the sound foundation of both his and Master Howarth’s conclusion that Part 45 provides an entirely self-contained regime for fixed recoverable costs (including disbursements specified in rule 45.29I), separate and distinct in all respects from assessments under rule 44.6(1), whether summary or detailed. 

v) It therefore appears that specialist judges sitting in the Senior Courts Costs Office do not consider that detailed assessment is a permitted method for determining costs (or disbursements) under the Part 45 regime (although the parties can no doubt use that route by agreement). Mr Mallalieu asserted that that was not the general practice, but produced no authority or example supporting his contention.

This follows a decision of the High Court of Nema v Kirkland [2019] EWHC B15 (Costs), where a Claimant, whose low‑value road traffic accident claim was subject to the fixed recoverable costs regime under Part 45, commenced detailed assessment proceedings following acceptance of a Defendant’s Part 36 offer. After settlement, a dispute arose solely over £564 in disbursements (including counsel’s fees and engineer’s photographs).

The Claimant issued a Notice of Commencement and bill of costs, prompting the defendant to apply to strike them out on the basis that a detailed assessment was impermissible where fixed recoverable costs applied.

Master Leonard held that, once CPR 36.20 applies, the fixed costs regime provides a self‑contained and exclusive procedure for resolving costs disputes, displacing both deemed costs orders under CPR 44.9 and detailed assessment under CPR 47. Any dispute (whether concerning costs or permitted disbursements).must instead be resolved by an application to the court under CPR 36.20(11). Interesting, Master Leonard was of the view that CPR 45.29H applied to the cost of that hearing, and this would later be contradicted by Carr J (as she was then, before becoming Lady Chief Justice) as explained below.

This would mean that whether it was settlement by Part 36 (which exclusively instructed the Court to make the determination of any dispute between the liability for costs under CPR 36.20(11)), at the end of a Fast Track trial, Stage 3 hearing or at an infant approval hearing, the determination that took place was the same.

Costs of pre-1st October 2023 Fixed Costs Determination Hearings

Generally, both parties in fixed determination hearings agreed that costs were at large because the FRC regime concluded once the matter settled. Consequently, unless costs were formally decided at the end of a trial, IAH, or Stage 3 hearing, any subsequent hearing was outside the scope of the FRC regime.

In Parsa v DS Smith PLC & Another [2019] Costs LR 331, Carr J considered (amongst other things) whether the Claimant’s post-settlement application, aiming to avoid the fixed costs regime after Defendants’ late Part 36 offer acceptance, was an “interim application” under CPR 45.29H, making its costs subject to fixed limits. The personal injury claim had settled via the Part 36 offer, with an automatic stay under CPR 36.14, leaving only costs in dispute. 

When their application failed, the Claimant attempted to argue that unresolved cost issues made the application was an “interim application” within the fixed costs regime. Therefore, they were liable only for the Defendant’s costs of £ 250 + VAT. HHJ Tindal rejected that proposition, and the Claimant appealed (and on other issues argued).

Carr J rejected that argument. She held that once the substantive claim for damages had settled, the case was no longer one to which the FRC regime “applied” for the purposes of CPR 45.29H. She followed the Court of Appeal’s decision of Sharp v Leeds City Council [2017] EWCA Civ 33, that if the FRC commenced once the CNF was sent, then it was correct that it ended once the main action settled. For those reasons, the hearing was subject to costs at large, and the Circuit Judge was correct to assess on a summary basis. 

Common issues raised at the Fixed Costs Determination Hearings

I have been involved in many Fixed Costs Determination Hearings and most issues that are challenged are disbursements. In particular, those concerning medical report invoices issued by medical agencies, which will also include their uplift for managing the instructional and acquisition of the medical report.

The most recent, binding authority on the issue in FRC cases was MIB v Santiago [2026] EWHC 513 (KB), which was actually in respect of the breakdown of an interpreter’s fee in a FRC case (and I comment on this in my article I wrote for chambers). However the specific point was recently dealt with JXX v Archibald & Anor; HLA v LXA & EUI Ltd [2026] EWHC 630 (SCCO), which I will deal with in a seperate article.

Other issues I have dealt with ranged from:-

• Determining whether post issue costs apply based on when a Part 36 offer was made and accepted
• Whether the Court had jursidiction to restrict to portal costs or whether it was appropriate of the Claimant to exit the portal
• Whether it was appropriate for two sets of fixed costs and trial advocacy fees.

Fixed Cost Determination Hearings post 1st October 2023

The biggest change to Fixed Cost Determination Hearings is that costs are no longer at large, as an express provision under the new FRC restricts costs and specifically determines how the hearing will be conducted.

CPR 45.63 states that if costs have not been agreed, the Court will determine the fixed costs and disbursements to which the receiving party will be entitled. If this is an application-based request for determination, then a Judge will initially consider the determination on paper. The receiving party has to file and serve a Precedent U, along with any evidence in support of the application.

The paying party will then respond and must file and serve their response within 21 days of the application being served (or 21 days of the acknowledgement of service if proceedings had not been commenced at the point of settlement).

Unless the Court orders otherwise, it will deal with the application on paper and will restrict the costs of this application to those in Table 17 of PD 45 (£500 + VAT). If dealt with on paper, the Court shall record its determination by annotating the Precedent U (in a similar manner to a provisional assessment). It will offer the parties the opportunity to challenge any aspect of the determination by filling in and serving a written request for a hearing. This must be done within 21 days of the notice, identifying the elements the party wants to challenge and providing a time estimate for the hearing. Failing to do so makes the cost decision binding.

A cost order will be made against the requesting party of the hearing if they do not obtain an adjournment in their favour of at least 20% of the sum determined. The costs of the hearing will be treated as an interim injunction under CPR 45.8 (being £250+VAT as per PD 45).

Thus the Fixed Costs Determination Hearing process has been changed.

Concluding remarks

Fixed Costs Determination Hearings weren’t summary or detailed assessments, and the new FRC has made that even clearer with its own ‘provisional assessment’-esque procedure. This also eradicates the Parsa approach to these hearings, with a restriction on those costs.

On the one hand, costs will not spiral out of control when arguing over the principle of fixed costs and disbursements. On the other hand, the restriction of fixed costs recovery may encourage ’have a go’ arguments when it comes to the determination of fixed costs. At the very least, the parties being liable for costs at large for the other party can be a reasonably good deterrent from pursuing cost arguments that may have insufficient prospects of success.

In any event, it is clear that where there is a prescribed cost regime and the parties have processed it, they will be bound by it. In terms of personal injury cases (which I am usually instructed on), the cause of action determines the applicability of this regime and these will no doubt start to appear as matters settle and disputes occur.

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.

Ground 7A of Schedule 2 to the Housing Act 1988 is a highly effective yet often overlooked tool for social landlords, where the appropriate situation arises. Condition 1 of Ground 7A is a mandatory possession after a tenant’s conviction for a “serious offence” in the area, offering landlords a straightforward route to possession. For social housing providers dealing with persistent, high-risk anti-social behaviour, relying on Condition 1 can avoid substantive dispute and lengthy possession proceedings. 

Despite its importance, Ground 7A can be missed at the early stages of a case. Sometimes this happens because housing officers are understandably focusing on immediate safety measures such as injunctions, rather than the precise categorisation of the offence.

It also won’t be within their knowledge and will depend on third parties, such as the police and CPS, to provide that information. In other cases, the focus has not been on the serious offence, but the anti-social behaviour. Without a breach of an injunction under section 1 of the Anti-social Behaviour, Crime and Policing Act 2014, Ground 14 regarding anti-social behaviour is a discretionary ground for possession. 

This post explains why landlords should always consider Ground 7A Condition 1 as soon as a prospect conviction occurs, and what to do if the opportunity to plead it at the outset has been missed. 

Verify the actual offences; you cannot assume Ground 7A Condition 1 does or does not apply

Ground 7A Condition 1 applies only if the tenant has been convicted of a ‘serious offence’ as listed in Schedule 2A of the Housing Act 1985. The schedule sets out a long list of various offences which will meet the criteria for Condition 1.

When relying on this ground, it is essential to request the evidence in support (the charge sheet, confirmation from the CPS, or a PNC printout to verify the prosecution details). Some Landlord Solicitors rely on emails from the police confirming the offence. Whilst not the ‘best evidence’, Courts seem to accept these emails. It is also important to confirm the exact statutory provision cited and ensure that the offence matches the criteria in Schedule 2A, both at the time of the offence and at the hearing.

A possible pitfall is that many anti-social behaviour offences may not be classified as serious offences under Ground 7A condition 1, which can lead to incorrect application of this ground. The alternative is that offences that are classified as serious offences are overlooked, and therefore, Ground 7A is not utilised when it should be.

Confirm the Ground 7A conditions: location, victim and context

Break down condition 1(a)–(b): determine whether the act was committed within the locality, against someone who resides or works there, or against the landlord or housing officer.

It is, of course, insufficient that a ‘serious offence’ was committed. All limbs must be satisfied in order for the court to be compelled to order possession. The required limbs to be met are as follows:-

(a)the tenant, or a person residing in or visiting the dwelling-house, has been convicted of a serious offence, and

(b)the serious offence—

(i)was committed (wholly or partly) in, or in the locality of, the dwelling-house,

(ii)was committed elsewhere against a person with a right (of whatever description) to reside in, or occupy housing accommodation in the locality of, the dwelling-house, or

(iii)was committed elsewhere against the landlord of the dwelling-house, or a person employed (whether or not by the landlord) in connection with the exercise of the landlord’s housing management functions, and directly or indirectly related to or affected those functions.

The second limb then has three potential options; it is not required that all three be met. The first limb is very likely to be identifiable from the outset. Whilst the tenant is easily identifiable, it is possible that it is someone who resides there but is not a tenant.

Where it was committed again can be relatively clear on the face of it, or it can be more ambiguous yet still fall within the scope of the statutory limb (b)(i).

The meaning of locality can be adopted from the authorities used in Ground 14. In Manchester City Council v Lawler and McMillan [1999] 31 HLR 119. The council appealed after a tenant was refused a committal order for breaching an agreement not to harass or cause nuisance in the locality of her home. The judge found she had broken the agreement, but did not commit her because ‘in the locality’ was unclear about the area involved. The Court of Appeal decided the meaning was clear and that her breach occurred within the area near her home. It described the location as being about three roads away, within easy walking distance of the estate, specifically near Haveley Circle and Haveley Road.

The next alternative, second limb is (b)(ii) should also be quite clear. The offence can take place other than in the vicinity, but against a person who lives nearby or has a right to live in housing in that area, including neighbours, other tenants (whether with the same or different landlords), local residents, and people entitled to occupy housing locally, such as social housing tenants.

The final possible second limb, (b)(iii) is when the offence is committed against landlords, including private landlords, housing associations, local authorities, and related personnel such as letting agents, housing officers, contractors, security staff, or anyone acting on behalf of the landlord.

Once it has been established that both limbs are met, the landlord can then take the next step, ensure the Notice to Seek Possession under Ground 7A has been validly served.

Validly serve or ensure the Ground 7A Notice is validly served

Under section 8 and Ground 7A, certain legal requirements must be met. First, the correct prescribed form must be used to ensure compliance with official procedures. The ground for the application must be accurately stated to reflect the specific reasons for the action. 

A minimum notice period of 28 days must be provided to the tenant before proceedings can be issued. Service of documentation must occur within 12 months of the conviction (or the failure/abandonment of an appeal), in accordance with s8(4D).

It is also crucial to recognise the importance of contractual clauses that permit service at the last-known address, even if an exclusion injunction is in place. These clauses can ensure that notices are effectively delivered, respecting the legal requirements and safeguarding procedural validity. This can be a topic for another post.

Once the 28 days post-deemed service have passed, the Landlord can issue possession proceedings.

Ground 7A was not pleaded in the Claimant? It’s not over yet

The issue, as above, is that sometimes it becomes apparent after the proceedings have been issued that the evidence or knowledge of a Ground 7 condition 1 offence has been committed. Sometimes, it has occurred after the proceedings have been issued.

Can you possibly add these cases to the current proceedings? At first glance, s8 would prevent this because the Court cannot entertain proceedings for a ground where hte notice required time has not expired.

Brent London Borough Council v Hajan; Poplar Housing and Regeneration Ltd Community Association v Kerr [2024] EWCA Civ 1260 concerned the Ground 7A equivalent of the Housing Act 1985, where by the Court cannot certain proceedings begun before ‘specified date’ after which proceedings may begin. The Claimant service notice regarding Ground s83ZA and then sought to amend the claim, rather than starting a new claim and the consolidating. The Defendant appealed.

The Court of Appeal dismissed the appeal, holding that purpose of the mandatory ground is to expedite fiction where a conviction already proves the anti-social behaviour. Therefore, where the term ‘proceedings’ was used in the 1985 Act, it would also include amendments:-

52. ”But in oral submissions Mr Grundy argued that the amendments themselves could be regarded as “proceedings” and that they are “begun” at some point in the process of obtaining permission to amend and making the amendment. He proposed various dates for the date when proceedings are “begun,” but his final position was that proceedings are “begun” when the landlord applies for permission to amend……. In my judgment there is considerable force in that point. Moreover, all that the order does is to permit the applicant to amend. The applicant may choose not to take up that permission.”

Whilst Brent applies to the 1985 Act, it application can be applied to the 1988 Act.

Concluding remarks

The approach above may very well be adopted by landlords in cases where current proceedings are being pursued on discretionary grounds, and the Renter’s Rights Act 2025 may introduce an alternative, mandatory ground for possession which is preferable.

The same rules apply; if the appropriate notice is served and the relevant time has passed before proceedings can be issued, then the landlord may be able to apply to amend the proceedings to add the new ground, rather than incurring more court time and resources. Issuing separately and looking to consolidate the claims.

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 talk of the town has been Mazur (or its official title, given the number of interveners, Chartered Institute of Legal Executives (CILEX) & Ors v Mazur & Ors [2026] EWCA Civ 369), which is relevant for the question of litigation carried out by those not authorised to conduct litigation. Another topic was discussed briefly in both the submissions and the Court of Appeal’s judgment.

56. As I have already mentioned, the parties placed significant reliance on paragraphs 1(7) and 1(8) of schedule 3, which provides an exemption in relation to rights of audience, as follows: 

“1 Right of audience 

(1) This paragraph applies to determine whether a person is an exempt person for the purpose of exercising a right of audience before a court in relation to any proceedings (subject to paragraph 7). 

[…] 

(7) The person is exempt if–

(a) the person is an individual whose work includes assisting in the conduct of litigation,

(b) the person is assisting in the conduct of litigation–

(i) under instructions given (either generally or in relation to the proceedings) by an individual to whom sub-paragraph (8) applies, and

(ii) under the supervision of that individual, and

(c) the proceedings are not reserved family proceedings and are being heard in chambers—

(i) in the High Court or county court, or

(ii) in the family court by a judge who is not, or by two or more judges at least one of whom is not, within section 31C(1)(y) of the Matrimonial and Family Proceedings Act 1984 (lay justices).

(8) This sub-paragraph applies to–

(a) any authorised person in relation to an activity which constitutes the conduct of litigation;

(b) any person who by virtue of section 193 is not required to be entitled to carry on such an activity.”

57. This exemption applies to individuals whose work includes assisting in the conduct of litigation. If individuals satisfy two conditions, they have a right of audience for proceedings in the High Court or county court heard “in chambers” or for certain family court proceedings. The expression “in chambers” is an out-of-date reference to hearings held in the High Court or county court which were not held in public and were often procedural in nature. They were in the judge’s room, the judge often being a Master (in the High Court) or District Judge (in the county court or District Registry).
58. The two conditions in paragraph 1(7)(b) were that the individual must be working under instructions given by another individual and under that individual’s supervision (paragraph 1(7)(b)(i) and (ii)). The individual giving instructions and supervision is defined in paragraph 1(8), which includes the particular unauthorised persons mentioned in section 193(2) of the 2007 Act in relation to the conduct of litigation. Notably the instructions may be given “in relation to the proceedings” or “generally”. The latter in this context must refer to instructions of a more general nature not specific to the proceedings. 
59. Paragraph 2 of schedule 3 concerns the conduct of litigation. Paragraph 2(3) comprises an exemption for those having a right to conduct litigation under any “enactment” as follows:

This is a topic that has been considered by the Courts, no higher than a Circuit Judge. It could have been considered by the Court of Appeal, but it was remitted back to the County Court to be considered as they believed it to be too academic. Following Mazur, I wonder if the Court of Appeal would be slow to make such a decision.

There have been a flurry of cases, including but not limited to:-

• Shane v Lincoln [2016] (MOJ Stage 3 Hearing)
• Ellis v Larson [2016](MOJ Stage 3 Hearing)
• National Westminster Bank Plc v Smith [2019] (summary judgment application)
• Halborg v Apple (UK) Limited & Another [2022] (which was originally leapfrogged to the Court of Appeal – my commentary on it is here)
• Vehicle Control Services Ltd v Langley [2026] EWCC 1 (which I have written about here)

Today, Cost Lawyer Richie Young published the reserved Judgment of his case of Smart Parking v Young [2026] where, as the Defendant, he successfully argued that the advocate attending did not have a right of audience and secured his costs upto and after the Claimant filed a notice of discontinuance under the unreasonable conduct trigger of CPR 27.14(2)(g).

Facts of the case

The claim involved an alleged parking charge incurred by Mr Young at Cardiff Gate Retail Park on 27^th September 2020, with Smart Parking claiming Mr Young overstayed and initially issued a £60 charge, which was later increased to £170 when unpaid. Mr Young stated he only became aware of the debt on 7^th June 2025, upon receiving a letter dated 29^th May 2025, nearly five years after the alleged breach. Following correspondence, Smart Parking agreed to reduce the charge to £60, which Mr Young paid on 7^th August 2025, with both parties accepting this as full and final settlement.

Despite settling the debt, Direct Collection Bailiffs Ltd (DCBL) was either unaware of the settlement or chose to ignore it and continued chasing Mr Young. On 24^th September 2025, the Defendant warned the Claimant about the consequences of further action, including the possibility of seeking costs. Smart Parking had already issued court proceedings on 8^th September 2025, before resolving Mr Young’s queries or acknowledging the settlement, and these proceedings were premature, related to nearly five-year-old events, and pursued despite evidence that the debt was settled. Smart Parking later filed a Notice of Discontinuance on 28th November 2025, two months after Mr Young’s warning.

On the 15th December 2025, Mr Young applied to set aside the discontinuance, strike out the claim as an abuse of process, and recover his LIP costs on an indemnity basis.

Hearing

The matter appeared before DDJ McKay and Mr Young challenged the Claimant’s advocate (Mr Razza) right to appear in the matter. Mr Razza did not have a party present, and therefore could not rely on the The Lay Representatives (Rights of Audience) Order 1999. Therefore Mr Razza attempted to rely on the exemption in Sch 3 Legal Services Act 2007.

For the avoidance of doubt, the Claimant was represented by DCBL’s legal department, which instructed Elms Legal Limited. The Judge correctly identified the test within Sch 3 (7):-

The person is exempt if—

(a)the person is an individual whose work includes assisting in the conduct of litigation,

(b)the person is assisting in the conduct of litigation—

(i)under instructions given (either generally or in relation to the proceedings) by an individual to whom sub-paragraph (8) applies, and

(ii)under the supervision of that individual, and

(c)the proceedings are not reserved family proceedings and are being heard in chambers—

(i)in the High Court or county court, or

(ii)in the family court by a judge who is not, or by two or more judges at least one of whom is not, within section 31C(1)(y) of the Matrimonial and Family Proceedings Act 1984 (lay justices)

The first step was the Judge’s acceptance that Mr Razza was assisting in the conduct of the litigation. He was acting under instructions from Mr Shoreham-Lawson, a qualified solicitor and the principal of ELMS.

The next step was to determine whether the assistance that Mr Razza provided was under the instructions and supervision of someone who was authorised to conduct litigation. This is where Smart Parking hit a roadblock.

ELMS produced a practice note which stated that a person has the right of audience if they are an authorised advocate (such as a solicitor, barrister, or Chartered Legal Executive¹) or an exempt person. Edmund Shoreham-Lawson, the Principal of ELMS Legal Ltd, is a qualified solicitor and can act as an advocate. It set out the principle of supervision. However, the Judge was not satisfied that the arrangements of Elms and Mr Shoreham-Lawson were sufficient to establish appropriate supervision. 

The Judge made the following observations:-

In my judgement the arrangements created by ELMS Solicitors and similar operators have the potential to undermine the integrity of the legal system. To allow unqualified persons to routinely represent parties in Court if they cannot properly be said to be supervised and are not accountable to any regulated professional body is an unsafe practice and is not permitted by the Legal Services Act 2007. I doubt that Mr Razza has ever met Mr Shoreham-Lawson or ever had a proper supervision session with him. If I am wrong about that, then it is for Mr Shoreham-Lawson to satisfy the Court that he has a proper system of supervision in place. In paragraph 195 of the judgement of Lord Justice Brooke in Hollins v Russell, he says that the Court of Appeal would not wish to be prescriptive about the form which the supervision should take, provided that an appropriate system has been set up. The practice note from ELMS Legal says that all advocates having been accepted to take instructions are provided with the requisite letters of instruction, training and support and are required to provide comprehensive attendance notes for supervisory purposes.  In my judgement, this paragraph is too light on detail. The Judge is entitled to be re-assured that a proper system of supervision is in place before he permits an unqualified advocate to address him. I have no idea how many unqualified advocates are supervised by Mr Shoreham- Lawson. It could be dozens or even hundreds. I have no idea of how Mr Shoreham- Lawson arranges training and support for the advocates. He should provide sufficient information for the Court to be satisfied that the person appearing is entitled to an exemption. He has not done so in this case.   I am therefore justified in not allowing Mr Razza rights of audience.

The Judge went on to consider the application for unreasonable conduct costs without hearing from Mr Razza. This article is limited to the issue of right of audience. Given the limited time remaining, the Judge reserved his judgment which was recently handed down.

Compared with DJ Pratt’s VCS Limited v Langley [2026]

As with VCS Limited v Langley, this is a county court first-instance decision that is not binding and, at best, would be persuasive. Even DDJ Mckay said, “although a decision at District Judge level is not binding on me, the judgment is a comprehensive analysis of the law and the issue.” As I’ve said previously, when the Court of Appeal decided that Halborg v Apple was ‘too academic’ to be considered despite HHJ Backhouse’s order to leapfrog the matter to the Court of Appeal, it would have led to the start of the collating of first-instance decisions and would become another ‘Battle of the transcripts²’. 

It’s notable that the judge followed Judge Backhouse’s approach to what constitutes assisting in litigation, namely that advocacy falls within this category. I understand this principle well. Chamber advocacy typically involves case management hearings, including interim applications, which would qualify as assisting in the conduct of litigation since court involvement has advanced the matter.

Additionally, this aligns with the purpose of the schedule 3 exemption, which allows authorised persons to instruct unapproved employees to attend hearings on their behalf.

Imagine a solicitor or CILEX Lawyer (with the proper practice rights) in the office planning to handle a case management hearing. Suddenly, an urgent matter appears on their desk. They sigh heavily, then notice their paralegal walking by. They call the paralegal into their office and inform them that they will be going to court to handle the case management hearing. The paralegal is given instructions and provided with the case files to review before the hearing. Although the paralegal may not be directly involved in this specific case, they are assisting in the litigation process since the case management hearing is needed to assess progress.

The question of adequate evidence of supervision can be seen as an unnecessarily harsh criticism, akin to my issue with DJ Pratt when he suggested that there should be evidence of materially substantial assistance in the conduct of litigation.

Differences between the principal law firm and within the agency law firm

If the approach by McKay and Pratt were combined and adopted, it could be argued that those within the law firm directly representing the party (rather than those within the agency law firm instructed by the principal law firm) can establish prima facie that they were properly supervised and assisted in conducting the litigation.

Imagine tomorrow morning a District Judge begins to work through their list. The first hearing is a CMC and the Claimant is represented by counsel and the Defendant is represented by a paralegal within the law firm who are on record acting for the Defendant.

Prima facie, unless there was doubt that the paralegal actually worked at the law firm that is on record, there would be no reason to doubt that the paralegal was both appropriately supervised and assisting in the conduct of litigation. It would seem perverse that the supervisor would need to be present in court; otherwise, it would be counterintuitive to the purpose of the exemption. The supervisor would simply conduct the hearing themselves. 

It would be unreasonable to use Pratt’s method to determine whether the paralegal has been assisting in the conducting of litigation because it would require evidence that this specific paralegal has helped in this case, such as by writing letters or signing documents. If McKay’s approach to assisting in conducting litigation is simply the process of conducting this particular type of advocacy.

Now, consider that the next hearing is a similar hearing where the Defendant is represented by an agent advocate from an agency law firm, following the same principle. It is fair to say that automatic prima facie adoption would not occur. However, based on my previous discussion about Langley, the agency law firm is regarded as the principal law firm, retaining both control and liability. Interestingly, that interpretation aligns with the Court of Appeal’s decision in Mazur about the authorised individual who can delegate the task to a non-authorised individual.

ChatGPT and I had a bit of a falling out as I tried to carefully explain what I wanted, which was a visual illustration to demonstrate the above. After some back and forth, I got somewhere which broadly represents the above:-

In my view, it would seem that McKay was more willing to accept the possibility of agency advocacy (which is a bona fide service that has been around since the 1800s³), but absolutely wanted there to be the appropriate safeguards to ensure protection when it involved unauthorised advocates.

Concluding remarks

I think there is another particular issue regarding Sch 3 that could be quite a challenge. I intend to sit back, get the popcorn and see if that issue arises.

Without a binding authority, we will likely see ongoing inconsistency at the first instance and an increasing number of persuasive but non-binding decisions, culminating in a ‘battle of the transcripts’ on the rights of audience. It is not going to have the same impact or urgency as Mazur and the point regarding litigation, but I suspect that there will be many who will feel uneasy with the increased attention this issue is getting. 

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.

1. The current situation is somewhat unclear. Previously, you couldn’t obtain litigation rights without also having chamber advocacy rights. This raises the question: if you are a CILEX Litigatory rights, can you supervise someone else’s litigation and allow them to use the Schedule 3 exemption? Additionally, a Fellow of CILEX without practice rights can participate in a small claims case without relying on the Schedule 3 exemption because PD27A para 3.1 grants them a right of audience on the small claims track, provided they are employed by a solicitor or someone authorised under the Legal Services Act 2007 to act as a litigator or advocate. This suggests that supervision might be possible if you only have litigation rights. I realise this has shifted from a footnote to a more personal stream of consciousness. Apologies for the digression…consider yourselves fortunate this isn’t in person, and you can’t stop me from talking! ↩︎
2. I can’t claim to have ‘coined a phrase’ or copyright it, but I would like to think that when HHJ Saggerson adopted the phrase from me in his judgment of Aminu-Edu v Esure Insurance Company [2024] Lexis Citation 356, that has some authority to say it’s mine…. I suspect that has little weight. ↩︎
3. Re Pomeroy & Tanner [1897] 1 CH 284, it should also be noted that when law firms renew their PII policies, when asked about the type of work they will be doing, an advocacy agency is an option. It’s not the advocacy agency that is the issue, but the use of unauhtorised advocates unless there is sufficient superivsion ↩︎

This article isn’t entirely about Chartered Institute of Legal Executive (CILEX) & Ors v Mazur & Ors [2026] EWCA Civ 369, it’s more about what people in the legal industry should do following the Court of Appeal decision.

I’ve seen some commentary about how it has gone back to ‘as it was’ and others saying it has not, or at least not in the same way that some have suggested. I have seen CILEX Fellows saying that they are considering whether to abandon their pursut of litigation rights and I think realistically, it would be sensible to speak about the practical realities.

I shouldn’t assume, but if you’re reading this and unaware, before I became a Barrister, I was a CILEX Higher Rights Advocate and Litigator in Civil Proceedings (technically, I still am, thanks to a waiver from the BSB). I’ve been through the process myself, so I speak from experience.

What has the Court of Appeal decision of Mazur actually done?

Prior to Mazur, the main position (at least imposed by Sheldon J’s decision) was that unauthorised individuals could provide assistance but were not permitted to conduct or carry out litigation, even with supervision. Going against what the legal industry had taken to be an acceptable practice for decades. As I said in a recent post on Linkedin, it was very likely that most if not all authorised individuals had been in breach of Legal Services Act 2007 when following Sheldon J’s interpretation.

This meant that unauthorised fee earners, from paralegals to CILEX Fellows (who did not have practice rights) were left in a position where they were limited in how they could carry out work, especially when there was significant ambiguity as to what was deemed to be ‘assisting’ litigation and what was ‘conducting’ or ‘carrying out’ litigation.

Hence the scramble for so many CILEX Fellows to acquire the right to conduct litigation, something that was simply not availble to those who were not a Fellow of CILEX.

The Court of Appeal clarified the issue. The main question is not whether an unauthorised individual performs tasks related to litigation. It is about who, legally, is responsible for those activities. The authorised individual is the person who is conducting the litigation. The unauthorised individual can undertake tasks, even if they amount to conducting litigation, but ultimately they do so on behalf of and under the supervision of the authorised individual. 

I think this is best expressed at paragraph 187:- 

vii) The judge was wrong to distinguish between (a) supporting or assisting an authorised solicitor in conducting litigation, and (b) conducting litigation under the supervision of an authorised solicitor. Both activities are lawful in the circumstances I have explained. It is not unlawful for an unauthorised person to act for and on behalf of an authorised individual so as to conduct litigation under their supervision, provided the authorised individual puts in place appropriate arrangements for the supervision of and delegation to the unauthorised person.

[emphasis added]

In my view, given how many have conducted litigation as fee earners, with the conduct of the matter supervised, I think the Court of Appeal’s decision will most certainly (from a materially regulatory perspective) imply that when an unauthorised individual conducts litigation, they do so without autonomy. After all, if the authorised individual is the person who takes the responsibility and liability if something goes wrong, they have every right to dictate everything that happens.

For many, this wouldn’t be a problem. They would simply be very happy to continue their work on the High Court decision. For many, regulatory red tape is just something they have to accept.

There is still a juxtaposition. A CILEX Fellow can be a partner of a law firm, without the right to conduct litigation, but they do not have the right to run a case as if it is their own, they have to do so on behalf of a regulated individual.

So why is obtaining practice right still important?

I still believe that CILEX Fellows should acquire their practice rights.

Previously, those who did not pursue practice rights before the High Court decision in Mazur chose not to do so, understandably because they had no need. It wasn’t as if they planned to start their own law firm or run a department without anyone above them to oversee.

The position has shifted somewhat following the Court of Appeal’s clarification. While most issues have been resolved, including arguments about costs incurred by unauthorised individuals, a CILEX Fellow will still be cautious, wondering if they are truly compliant with regulations. The SRA clarified that anyone who might have breached the Legal Services Act 2007 would have a valid defence against a s14 allegation. During the hearing, the Court of Appeal emphasised that once their decision was issued, everyone involved needed to carefully review it to ensure they were in compliance.

Therefore, having the right to conduct litigation would remove that uncertainty or stress. It comes with additional security in their employment and future career prospects.

I know many were insulted by the fact that they were expected to undertake an example or prepare a portfolio when they had been doing the job, sometimes even decades. That’s an understandable frustration. However, that is a regulatory complaince that the delegated regulator approved everyone by the same standard. It cannot simply be a rub stamp process, otherwise it would completely undermine the entire purpose of regulation and standing of an authorised person.

Although steps have been taken to make the process more streamlined and easier to complete, it ultimately depends on the concessions granted by the LSB, who control the process for authorisation.

What about non-CILEX Fellows fee earners?

It is not straightforward for those who have been in the industry for some time, doing the job exceptionally well, but have not acquired any formal legal qualifications, such as CILEX Fellows. Whilst the process has been incredibly demanding, stressful and at times demeaning to CILEX Fellows, at the very least they had an Ave that they could utilise to get practice  rights.

Fortunately, the legal industry does have a relatively broad range of regulated lawyers all with various qualification process is and, more importantly specialism in certain areas.

For example, someone who has been working in the costs industry would be better suited to qualify as a cost lawyer rather than a CILEX lawyer or Solicitor. Someone who is working in trade mark disputes might be better suited qualifying through the trademark attorney regime. 

I previously wrote an article titled “It’s ok Legal Cheek, I’ve got this“, which discusses all types of regulated lawyers, their rights available to them and the broad qualification process. This provides greater flexibility in choosing a path that is better suited to the individual and the practice they intend to undertake.

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.

April Fools!!!

In the modern era, supermarkets do more than sell groceries. They now produce their own products under their own labels. Of course, they don’t actually produce these products, but they acquire them, put their logos on them, and sell them as their own.

With great branding power comes great legal responsibility.

In particular, I refer to the Consumer Protection Act 1987, where the supermarket is treated as being the producer under the Act, even if the actual manufacturer is identifiable. This article explains why own-brand supermarkets fall within the statutory definition of ‘producer’, and why liability cannot be avoided by identifying the underlying manufacture

Who is the ‘producer’?

The 1987 Act implements strict liability for defective products. Unlike contractual claims (such as the Consumer Rights Act 2015), the 1987 Act creates non-fault liability against certain categories of defendants collectively referred to as “producers”.

S2(2), which gives rise to damages to an individual who sustains injury as a result of a defective product:-add

This subsection applies to—

(a) the producer of the product;

(b) any person who, by putting his name on the product or using a trade mark or other distinguishing mark in relation to the product, has held himself out to be the producer of the product;

(c) any person who has imported the product into the United Kingdom in order, in the course of any business of his, to supply it to another.

[emphasis added]

It’s clear that when a supermarket markets a product as its own brand, it is implying that they are the producer of that product. It is irrelevant that they did not physically make it. The reasoning is simple. From a consumer’s point of view, the supermarket acts as the producer. The actual manufacturer’s identity is often hidden or considered unimportant to the final user.

Can a supermarket delegate liability if they provide the identity of the actual manufacture?

The answer is no.

The act does not have a mechanism to transfer liability. Firstly, the closest mechanism is s2(3), which is aimed at sellers (distinguishable from producers) who are made responsible for the damage unless they are able to identify the identity of one or more persons to whom s2(2) applies.

This means that a seller (which could be the supermarket) can provide details of a producer, but that in their capacity of a seller. If they are deemed to be the producer of the product as per s2(2)(b), then they could still refer to the underlying manufacturer, but this does not extinguish their own liability under s2(2)(b). This can be seen by virtue of s(2)(5):-

Where two or more persons are liable by virtue of this Part for the same damage, their liability shall be joint and several.

The supermarket cannot rid itself of liability on the basis it can identify the actual manufacturer.

What if the supermarket refuses to deal with the claim?

The supermarket would be in difficulty. They are still liable as they fall within the definition of a producer as per s2(2)(b). Whilst the underlying manufacturer could be brought in, they would be jointly and severally liable.

There are statutory defences and the Claimant must still satisfy the Court that, on balance, the product is not as safe as people are generally entitled to expect, and the defective nature was is in keep with s3 of the 1987 act. Once established, strict liability applies.

Conclusion

The Act intentionally establishes overlapping liability categories. It broadly defines “Producer” to include various actors in the supply chain, such as own-branders, making supermarkets their own producers rather than just fallback defendants. Rooted in consumer protection policy, the CPA 1987 aims to ensure injured consumers have a clear and accessible Defendant to hold liable, without relying on complex supply chains or cross-border manufacturing.

This prevents supermarkets from avoiding liability by simply pointing to manufacturers, which would create unnecessary barriers for consumers, especially when dealing with overseas or hard-to-pursue manufacturers. It is entirely different from supermarkets that are wholly suppliers. They can be held liable, but only until they reveal the manufacturer’s identity. This rule does not apply to supermarkets that sell their own branded items.

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.

When a lawyer seeks ‘wasted costs’, they are not asking for their client’s costs to be paid by the other party; they are seeking to have the costs paid by the other party’s legal representatives.

The term wasted costs is usually, and erroneously, interchanged. It is likely that the Court appreciates what is actually being sought, but it is a pet hate of mine.

What is a wasted costs order?

CPR 46.8 regulates the court’s authority to impose “wasted costs orders” against legal representatives under s51(6) Senior Courts Act 1981. It addresses the personal liability of lawyers, including solicitors and barristers, but also any regulated lawyer. This is a discretion available to the courts that is invoked to compensate parties for costs wasted due to misconduct of legal representatives.

A wasted costs order can disallow costs or permit the recovery of costs from the legal representative instead of the party. This is particularly important in situations where recovering costs from the party is impossible, such as under QOCS, but the conduct of the legal representative caused the costs.

The Ridehalgh v Horsefield test

In Ridehalgh v Horsefield [1994] Ch. 205, CA, the Court of Appeal examined the jurisdiction to award wasted costs under the Courts and Legal Services Act 1990. It emphasised that litigants should not suffer financial prejudice from unjustified conduct by their own or their opponent’s lawyers. Courts must also be cautious when awarding wasted costs to avoid creating a costly new form of satellite litigation.

Before ordering a wasted costs order, a three-stage test should be applied: 

(a) Did the legal representative in question act improperly, unreasonably, or negligently?

(b) If so, did this conduct cause the applicant to incur unnecessary costs? 

(c) If yes, was it appropriate, considering all circumstances, to order the legal representative to compensate the applicant fully or partially?

The test in Ridehalgh was later adopted as the acid test for unreasonable conduct costs awards in the small claims track CPR 27.14(2)(g) in the case of Dammermann v Lanyon Bowdler LLP [2017] EWCA Civ 269.

Was the conduct improper, unreasonable, or negligent?

These terms are broadly interpreted but with important nuances. “Improper” conduct encompasses not only behaviour that deserves professional discipline but also significant deviations from proper standards. “Unreasonable” conduct covers actions that are vexatious or intended to harass rather than support the case, even if driven by excessive enthusiasm. “Negligence” is understood in a general sense, meaning a failure to meet the standards of a reasonably competent professional.

Causation between the conduct and the loss

There must be a causal link between that conduct and the costs incurred. The court must be satisfied that the legal representative’s actions caused unnecessary costs to be incurred or rendered previously incurred costs wasted. Without such causation, no order can be made. I once made an argument where the Judge was with me on the conduct point, but found that the costs incurred would have been incurred in any event.

Is it reasonable in all the circumstances to make the Order?

Even where fault and causation are established, the court must consider whether it is just in all the circumstances to impose liability. This reflects the discretionary nature of the jurisdiction and ensures that wasted costs orders are not imposed automatically.

‘Show cause’ opportunity

CPR 46.8(2) promotes fairness to legal representatives by providing a mechanism that prevents a wasted cost order from being made immediately, often because the representative did not anticipate such an argument. They must be given a reasonable chance to respond, either in writing or at a hearing, before any order is issued. The court can decide the amount of wasted costs itself or direct a costs judge to assess it.

Additionally, the court may require that the representative’s client be informed of the proceedings or any resulting order. In practice, courts usually follow a two-stage process.

The first stage involves assessing whether there is a strong prima facie case justifying further investigation and whether pursuing the matter would be proportionate. If these criteria are met, the second stage involves a thorough review of the legal representative’s conduct after providing them with an opportunity to respond. This is informally referred to as showing ‘just cause’ and once the prima facie has been established, it is for the respondent to such an application to demonstrate why such a costs order should not be made. It is not for the respondent to demonstrate in thre is no prima facie case. CPR 46.8 is intended to be an exceptional costs direction.

Courts are wary of allowing wasted costs applications to turn into complex, satellite litigation. Therefore, applications are often postponed until after the trial and may be denied if they require detailed factual investigation or if the costs of the application are disproportionate.

Conclusion

Seeking your ‘wasted costs’ when you actually mean the costs of and occasioned by an event, or costs thrown away, is unlikely to lead to any complications. Judges will question whether you meant seeking your client’s costs from the other party and I doubt that it will lead ot an unitended consequence.

Just remember that when you instruct counsel to seek, or invite the court to make a wasted costs order, you are asking the Court to make a legal representative personally liable for costs caused by their improper, unreasonable or negligent conduct. It is a high threshold test.

Whilst Ridehalgh was adopted as the acid test in Dammerman, the application of those cases in CPR 27.14(2)(g) is different. In those circumstances, you are still seeking costs from the other party, but you are asking the court to exercise discretion to allow costs not usually allowed in the small claims track.

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 have decided to make a Tetralogy regarding the deductions from a child’s personal injury damages. consisting of:-

• Chapter 1 – ATE premiums
• Chapter 2 – Success fees
• Chapter 3 – Costs shortfall contribution 
• Chapter 4 – Payments out

Success fees are probably the most common deduction from a child’s damages. I am not sure why I didn’t write about it first. Nevertheless, it is an important topic.

What is a success fee?

A success fee is an additional liability that was made available to Solicitors who entered into a conditional fee agreement to account for the additional risk they took for taking on a case, whereby the Solicitors may not get paid for the work they undertake unless their client is successful.

The client instructs a solicitor on a CFA basis, so there are no upfront payments (although the firm may request money for disbursements). If the claim is lost, then no costs are charged by the Solicitors. If successful, the success fee is raised alongside the basic charges.

The percentage of the success fee could not exceed 100%, but the success fee had to be justified, usually by attributing the percentage to the risk. For example, a case which has low risk and high prospects with an early admission is not going to attract the same litigation risk as a highly complex and contested accident with both facts and law in dispute. In order to determine this, a solicitor would carry out a risk assessment at the outset of the claim.

However, who paid that success fee has changed as a result of the Jackson reforms.

Pre 1st April 2013

The success fee was an additional liability that was recoverable from the third party upon a successful case, leading to a right to recover costs. For these reasons, a Notice of Funding had to be filed with proceedings,, otherwise the Claimant would be unable to recover the success fee from the paying party. Once the right to costs came about, the bill of costs was drafted, which would include the success fee.

The success fee was usually a percentage of the base costs. So if a Claimant’s solicitors had incurred £6,000 of costs, and the success fee was 100%, then the success fee would be £6,000. Understandably, there would be circumstance whereby the Claimant’s success fee percentage would be challenged by the paying party. The cherry on top is that any CFA entered into between the Claimant and their instructed counsel was also subject to a success fee.

However, that changed following the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which applied to any CFA entered into on and after 1st April 2013.

Post 1st April 2013

Since LASPO, success fees are not recoverable from the Defendant in personal injury claims where the CFA is entered into after 1^st April 2013. Instead, they are usually deducted from the claimant’s damages. Any deduction is restricted by the LASPO and the Conditional Fee Agreements Order 2013. Essentially, any deduction or contribution from the Claimant’s damages must not exceed 25% and cannot be deducted from anything other than from PSLA and past losses.

Claimants can challenge the costs, and in turn, the success fee, by virtue of s70 Solicitors Act 1974. However, the question comes to success fees when they are children and are subject to CPR 21.10.

Herbert v HH Law Limited [2019] EWCA Civ 527

The first question is whether the litigation friend (who has entered into the CFA in order to pursue the child’s claim) has consented to the success fee. The relevant case is Herbert v HH Law Limited.

Ms Herbert instructed HH Law under a CFA after an RTA. The CFA allowed for a 100% success fee, limited by a 25% cap on damages. The claim settled for £3,400, with the solicitors deducting £829.21 for a success fee, plus an ATE insurance premium from her damages. Ms Herbert challenged these costs under s70 of the Solicitors Act 1974, claiming she wasn’t informed about the success fee and that it was unreasonable.

The Court of Appeal stated that “approval” under CPR 46.9(3) means informed approval, which requires a proper explanation to the client. The solicitors did not demonstrate informed approval for the 100% success fee because it was set as standard without considering litigation risk. This unusual practice should have been explained. As a result, the success fee was reduced to 15%.

Duffield v WM Morrisons Supermarket Limited

HHJ Monty KC, sitting in the County Court at Central London, heard an appeal from DDJ Walton regarding the deduction of the cost of the ATE premium and success fee. This article will focus solely on the ATE premium element.

The DDJ had allowed some of the success fee, but refused the ATE premium in its entirety. The Judgment of the DDJ was short and given verbatim in the Circuit Judge’s judgment. Whilst the DDJ was willing to find that there was risk, despite the criticism of the risk assessment, he found that the appropriate deduction should be 10% based on Simmons v Castle [2012] EWCA Civ 1039, which increased PSLA general damages to account for the additoinal libailities that must now be deducted from the Claimant’s damages.

The Circuit Judge allowed the appeal on the success fee because the success fee was a contractual agreement between the Solicitors and the litigation friend. It was wrong for the Judge to use Simmons v Castle as a starting point because that was in relation to the measurement of damages, not to solicitor-client assessment of costs.

Further, the Circuit Judge referred to the approach in Herbert v HH Law as the correct approach under CPR 46.9, ensuring informed consent from the litigation friend and applying the presumption of reasonableness to costs incurred with the client’s approval, unless evidence suggests otherwise. In this case, the litigation friend understood and approved the CFA, confirming the reasonableness of the success fee.

Very similar to the approach of ATE, CPR 46.9(3) has a presumption that the costs are reasonably incurred. There is a mechanism in place to challenge the costs if there are any concerns.

How are basic charges determined for a CFA?

In most CFAs, the basic charges are determined by the hourly rates and the amount of time spent progressing the matter. Therefore, if a firm spent £3,500 on conducting the matter, then the success fee would be £3,500 at 100%. However, some firms would define basic charges as the costs that can be recovered from the third party where the fixed costs regime would apply.

This would make it easier for a client to understand the likely liability for a success fee on the basis that the fixed cost regime was prescriptive to a certain extent (for example, any costs determined by the value of damages would be speculative, but a case that settles in the MOJ portal would have a prescribed set of fixed fees.

This reduces the size of the success fee, and would not take into account any complexities that would require more time. Whilst it would be considered fairer for Claimants who would require the success fee to be paid out of their damages, it would penalise firms who did significantly more work, but did not get remunerated for that time because of the fixed costs regime.

The percentage of success fee and cap on deductions from the damages are not interchangeable

A Litigation Friend, who incurs a success fee (for example) of 75% does not have that success fee reduced to 25%, but the cap of the pool of the damages that can be deducted from is limited to 25%.

So imagine a Litigation Friend’s solicitor has settled the Claimant’s case for £6,000 for PSLA only. The amount of work undertaken is £8,000 and the success fee is 75%, equating to £2,000. The success fee maybe £2,000, but the cap is £1,500. Therefore, the cap prevents more than £1,500 being deducted from the damages.

I have had many Judge states that a ‘25% success fee is being sought’, when that is not the case and interchange damages cap and success fee when they should not.

The approval process.

CPR 21.12 dictates how deductions from a child’s damages can be made and under what circumstances. Whilst costs that are to be deducted from the damages are usually to be assessed on detailed basis, CPR 21.12(2)(c) says that the detailed assessment can be dispensed with in accordance with CPR 46.6(5):-

(5) Where the costs payable comprise only the success fee claimed by the child’s or protected party’s legal representative under a conditional fee agreement or the balance of any payment under a damages based agreement, the court may direct that—

(a) the assessment procedure referred to in rule 46.10 and paragraph 6 of Practice Direction 46 shall not apply; and

(b) such costs be assessed summarily

This means the Court can summarily assess the costs that are to be used as a basis for determining the success fee.

The Litigation Friend, in accordance with CPR 21.12, must also file a statement setting out, so far as a applicable, the following:-

(a) the nature and amount of the costs or expenses and the reason they were incurred;

(b) a copy of any conditional fee or damages based agreement;

(c) a copy of any risk assessment by reference to which any success fee was determined;

(d) the reasons why the particular funding model was selected;

(e) the advice given to the litigation friend on funding arrangements;

(f) a copy bill or informal breakdown of the solicitor and own client base costs incurred;

(g) details of any costs agreed, recovered or fixed costs recoverable by the child; and

(h) an explanation of the amount agreed or awarded for—

(i) general damages for pain, suffering and loss of amenity; and

(ii) damages for past financial loss, net of any sums recoverable by the Compensation Recovery Unit or the Department for Work and Pensions.

This ensures the basis for the success fee can be reviewed by the Judge to ensure it is compliant. As it is a contractual agreement between the Solicitor and the Litigation Friend, there is a presumption that the costs are reasonably incurred and reasonable in amount.

So how should the Court consider the success fee for the purposes of approving any payment out for the same?

The Court must start by considering whether CPR 21.12(10) has been complied with and whether the appropriate documentation has been provided. If any documents vital to determining the success fee are missing, no success fee deduction should be allowed.

If the Solicitors have defined the basic charge for the success fee calculation as their hourly rates and work in progress, then, without a breakdown of those costs, the Court cannot possibly consider whether the success fee is correct/accurate/reasonable/proportionate.

The starting point would be to consider the success fee percentage and whether there was informed consent. If there is sufficient evidence of informed consent, then the Court should not touch the success fee.

If informed consent is doubtful, then the Court must consider whether the success fee is justified by the risk assessment. If it were a blanket 100% with no consideration of the risk, then the rebuttable presumption that it was reasonable and proportionate falls away. The court can then consider the appropriate success fee.

The same approach applies to the costs incurred. If informed consent is doubtful, are the costs unusual in nature and amount to displace the rebuttable presumption? If so, the Court can carry out a summary assessment of those costs because CPR 46.4(5) can allow the costs to be summarily assessed, rather than subject to detailed assessment.

In low-value personal injury cases, these possible reductions in the success fee percentage and summary assessment of costs may very well have no influence on the deduction. If 25% of the damages is £600 and the success fee is reduced from £3,000 to £1,000, the cap is still £600 and the assessment becomes an academic exercise. However, that may not alwasy be the case.

Why should the success fee be paid out of a child’s personal injury damages?

Success fees should be capable of being deducted from a child’s personal injury damages because solicitors acting under a conditional fee agreement assume a significant financial risk in pursuing claims on a CFA basis (at their own detriment).

If the claim is unsuccessful, the solicitor receives no payment for the work undertaken and absorbs the cost of the litigation risk. The litigation friend, who is responsible for conducting the claim on behalf of the child, knowingly enters into the CFA and thereby accepts the contractual liability for the success fee in the event that the claim succeeds. The rules allow that success fee to be recovered from the child’s damages.

Allowing a reasonable success fee to be deducted from damages therefore reflects the commercial reality that solicitors must be incentivised to take on such cases, particularly where there is uncertainty as to liability or quantum.

Importantly, this does not leave the child unprotected. The Court retains supervisory jurisdiction over settlements involving minors, and there are established mechanisms, such as detailed assessment and the court’s approval process, to scrutinise costs that appear unusual in amount or nature and to ensure that only fair and reasonable deductions are permitted. However, that mechanism is where there is doubt about the informed consent.

Whilst many say that this seems unfair on the Claimant child, remember that they would have no damages at all but for the financial risk undertaken and incurred by both the Solicitors and the Litigation Friend.

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.