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Surrender to the churn – deposits and shared houses.

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

It is, as HHJ Luba QC notes in this appeal judgment, far from an uncommon scenario. A group of people, say four of them for neatness, take a joint tenancy of a house or flat. (Neatness because the maximum number of joint tenants is capped at four by s.34(2) Law of Property Act 1925.) They jointly pay a deposit, and each select their room. Each pays a ‘share’ of the rent to the one of them who pays the full rent over to the landlord. Then, sooner or later, one of the tenants wants to leave. They find a replacement, who duly moves in and pays the departing tenant their ‘share’ of the deposit. There may well be some swapping of rooms involved. This happens a number of times, perhaps many times, until none of the original joint tenants remain in occupation and, as HHJ Luba QC puts it, in a moment of waxing lyrical:

The only record of A, B, C or D ever having lived at the property may be the appearance of their names on increasingly dog-eared post in an ever-growing pile in the communal hallway or in a faded copy of their original tenancy agreement held somewhere in the files of the property owner or their agent.

The landlord will know of this churn of tenants. They get the rent and don’t have to go through the hassle of finding new tenants themselves. And so, ad hoc, on it runs. Until it doesn’t. Such was the case here, where an original joint tenancy of a three bedroom house was in 2004. Over the subsequent decades, many tenants had come and gone, the rent had risen, and the original deposit, taken in 2004 (before the Housing Act 2004 provisions came into force in 2007) was unprotected. Departing tenants received their ‘share’ of the deposit from incoming tenants. And then two departing tenants made a claim for a penalty for breach of deposit protection in respect of their ‘shares’, £800 and £1050.

The other three joint tenants from the relevant period were added as parties, as required for a claim by any one or two joint tenants, but played no part in the case

At first instance trial, the Deputy District Judge accepted the landlord’s argument that

a) there was no surrender and regrant of tenancy with each new occupier, as the landlord was not actively consulted about the matter and did not have the opportunity to negotiate new terms

b) anyway, these were not tenants but mere licensees, apparently on the basis of lack of exclusive occupation, and lack of a definable term or notice period; and

c) the deposits had not been paid to the landlord

The claim was dismissed with costs to the landlord of about £6000.

The tenants appealed, arguing all three of these conclusions were incorrect.

HHJ Luba QC held:

Tenancy/licence. On the Street v Mountford characterisation of a tenancy, i) there was rent, ii) there was no evidence that exclusive occupation was not enjoyed by the tenants. There was no suggestion that the landlord could turn up and require the tenants to let him enter and live there. iii) The rent was monthly, so there was a strong reason to believe that there was a monthly term. While the DDJ was influenced by the apparent lack of notice given by tenants, this was when a replacement had been arranged. One of the claimants had not found a replacement and accepted in her communciation to the landlord that a month’s notice (and rent) was required.

So there was exclusive occupation, for a term, for a rent. These were tenancies.

Surrender and regrant.  The DDJ had relied heavily on the landlord not participating in the arrival of a new tenant in his judgment. However:

As to the extent to which a landlord needs to know – in advance – that joint tenant X is being replaced by joint tenant Y, Mr Jacob relied on Tower Hamlets v Ayinde [1994] 26 HLR 631. There, on markedly different facts, the Court of Appeal found that having been told that an outgoing tenant had departed and had installed a replacement, a landlord was thereafter fixed, by its conduct, with the new incumbent by surrender and re-grant. The short point is that the landlord’s acceptance of the new set up amounted to a completion of the process of surrender and re-grant even in circumstances where it had not known of the switch of occupiers when or before it took place.

Here, there was in place, as the landlord’s own evidence sets out, a prior arrangement that at the departure of one or more individuals the property would be treated as, in effect, re-let to those remaining and the new arrival(s). The arrangement did not require the landlord to participate in any way at the time or to be informed each time (although the Judge found he was). Given that this was a structure of the landlord’s own making he can hardly be heard to complain if the law gives effect to what has been agreed through the medium of surrender and re-grant.

As explained in QFS (Sable v QFS Scaffolding Ltd (2010) L&TR 30), the authorities on surrender are infused by the concept of estoppel i.e. the landlord who has acted consistently with the termination of a tenancy and the acceptance of a new tenancy cannot later resile. In the current context, it would be absurd to think that the landlord could insist that an individual who was a joint tenant before a ‘churn’, and had left after it, was still a tenant even though he was accepting rent he knew (or can be taken to have known) was being tendered on behalf of a new group.

There was a surrender and regrant of tenancy on the occasion of each ‘churn’

Taking of deposit. It was indeed the case that no funds had been paid directly to the landlord for a deposit since the original tenancy in 2004. However, Superstrike Ltd v Rodrigues (2013) 1 WLR 3848 (our note) was relevant, in particular the Court of Appeal’s view that on a transitional from a fixed term to a statutory periodic tenancy, the landlord took the deposit anew by way of set off:

The tenant should be treated as having paid the amount of the deposit to the landlord in respect of the new tenancy, by way of set-off against the landlord’s obligation to account to the tenant for the deposit in respect of the previous tenancy,

Here, there had been some agreed deductions from the deposit over the years, but the landlord still held the money against the tenants’ performance of their obligations.

It seems to me that where the landlord has entered into a construct by which, at his own design, there is a single initial payment of a deposit and thereafter a churning in the identities of tenants, he must be treated as having been ‘paid’, by each new cohort, the amount held in respect of the original cohort and each subsequent cohort. The alternative is the very artificial notion that Mr Boddy is fixed with an indefinite liability to account to his original (and long gone) 2004 tenants for such sum as is left after proper deduction in respect of acts for which they are not responsible and have assumed no responsibility.

So, there as a new tenancy on each ‘churn’ and the deposit was received by the landlord in respect of each new tenancy. The deposit was not protected on these occasions, therefore the penalty arose.

On the exercise of discretion as to the amount of the penalty:

The landlord contended that the penalty should only be on the amount paid by the claimants specifically as their ‘share’ of the deposit.

I do not consider the liability severable in that way. £1,205 is the deposit to be treated as paid and received for the tenancy of the whole flat by the tenants at each of the three churns with which I am concerned. And it is to that sum that the multiplier falls to be applied. If that is more than equity would suggest should be recovered by these two claimants alone, it has always been open to the other co-tenants to join in the claim. They have elected not to do so.

However, on the multiplier (between one and three times the deposit):

It seems to me that, although I have had regard to all the facts of the case and all the submissions of the parties, the following factors are particularly attracting of weight in this exercise:

(1) The deposit was first taken at a time when deposits did not require protection;

(2) The deposit has been retained and is still available and can now be protected;

(3) The landlord has not subsequently protected it because he believed that the informal nature of the transitions for occupancy of the flat did not require him to do so;

(4) In that view he was supported by his legal advisers and by at least one judge;

(5) Those informal arrangements contained a method of ensuring each outgoing tenant received reimbursement of their ‘share’ of the deposit from their arriving replacement; and

(6) The tenor of Mr Boddy’s evidence, and the undertaking of his counsel to the effect that – if the matter is ruled against him – he will promptly take the steps necessary to protect the deposit which he has held and retained over 15 years.

These features, and the other circumstances of this case, in my judgment put this right at the bottom end of landlord ‘culpability’ for breach of obligations.

A penalty of one times the deposit, £1,205, ordered for each of the three relevant ‘churns’ – surrenders and regrants – for a total of £3615.


This is surely correct, certainly on the tenancy and Superstrike receipt of deposit points.

On the surrender and regrant point, this is a very attractive and practical approach, and clearly supportable where the landlord has acquiesced in the occupation of the ‘replacement’ tenant without more. And, while this decision will certainly put a number of landlords at risk of deposit penalty claims, it is also a decision that should, in some respects be welcomed by landlords as well.

For example, consider what the position would have been if the landlord wanted to seek possession. Now, even if the surrender and regrant point was wrong (which I don’t think it is), the landlord’s argument that the occupants were simply licensees was also wrong.

The first few ‘replacement’ occupiers would arguably have been licensees (as lodgers) of the original joint tenants (including the departed ones). Once the last of the original joint tenants had left, the occupiers would be the sub-tenants of the original joint tenants, who would retain the tenancy, but not as an assured shorthold tenancy as not occupying as only or principal home.

This would play out again with each further churn of replacements, so that at any one time, the occupiers might be sub-tenants, or sub-sub-tenants, or licensee lodgers of the sub-tenants or sub-sub tenants, and so on, potentially ad infinitum.

However, the only way the landlord could legitimately gain possession would be to serve notice to quit on the original joint tenants. Who in this case had left the property some 15 years ago or more, could well be abroad and in any event would be very difficult to find…

On the basis of the surrender and regrant, the current occupiers are the direct tenants of the landlord, making things straightforward (at least once all the formalities and breaches of the requirement of post 2007 and 2015 assured shorthold tenancies have been sorted out.



Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


  1. Katie

    I have two comments regarding this case, I will put them in separate posts as they are about different legal aspects.

    Giles, thanks for bringing this important claim to our attention.

    I think this case should be of grave concern to any Landlord that rents to University Students, as you say “churning “of tenants is not uncommon.

    I do not totally agree with you Giles that this outcome is correct in all aspects, particularly Deposit Protection and Tenancy Creation. Obviously the Landlord accepted the new tenants in Surrender and regrant, but I don’t think the churn should create a new tenancy.

    First of all the tenancy which started in 2004 will probably have had an initial term which expired years ago and created an SPT or it was a contractual periodic tenancy. Either way when the claimants in this case became a party to the tenancy it was a single tenancy.

    I do not see how, in law, the act of swapping a tenant in and out of an existing agreement creates a new tenancy for ALL of the claimants currently parties to the agreement, but only that the person joining the agreement becomes a party to the tenancy.

    London Borough of Tower Hamlets v Ayinde is a very different case because the whole tenancy is assigned and most importantly because Council and Housing Association tenancies tend to have a clauses that allow for spouses and family to take over a tenancy.

    The Sturgiss & Anor v Boddy & Ors judgement says

    “Nevertheless, it seems to me that imposing any multiplier more than one times the deposit would be unjust.

    There shall be judgment for the claimants in the sum of a total £3,615 (i.e. £1,205 in respect of each of the three relevant churns which produced a new tenancy to which they were in turn either or both parties).”

    This cannot be right, to my mind there were 2 claimants with a single tenancy of 5 parties or 8 parties if you count the initial couple that left and the latest new incumbent.

    If HHJ Luba QC does indeed feel that imposing any multiplier more than one times the deposit would be unjust then surely the calculations should have been as follows:

    £1205 divided by 5 parties equals £241 per tenant, 3 of the parties have sought not to seek remedy so their allocation is forfeited, or at best the 2 claimants should not get more than £1205 divided between them (£602.50 each or split as shown below).

    Yes in Superstrike

    “the Court of Appeal there held, for the reasons set out at [28]-[38] of the judgment, there can be circumstances in which the deposit taken at the inception of an original tenancy is treated as paid (again) and received (again)”

    BUT only

    “when a new tenancy follows immediately from an earlier one”.

    In such cases the tenancy was created in Law as an SPT or by way of formal Contract Renewal and deposits became returned and repaid virtually by these events.

    I see nowhere in case law that swapping tenants creates a new tenancy for existing tenants, merely new parties to an existing agreement.

    To confirm this let us look at the dates to determine tenancies in this for each of the potential claimants in this case


    If we are saying the exchange of a Tenant creates an entirely new tenancy, does this also apply to when a tenant leaves but is not replaced, or to tenancies where the parties chose not to bring claim?

    Tenancy “O”
    15 October 2018 Jordan Ryan and Rebecca Ramsay, Bella Aude, & Braiden Moffat.

    Tenancy “P”
    17 October 2018 Bella Aude, Braiden Moffat + COURTNEY STURGISS

    Tenancy “Q”
    5th April 2019 Bella Aude, COURTNEY STURGISS + TANYA GUPTA

    Tenancy “R”
    15 February 2020 Bella Aude, COURTNEY STURGISS + Elrica Raja

    Tenancy “S”
    March/May 2020 Bella Aude, Elrica Raja

    Tenancy “T”
    June 2020 Bella Aude, Elrica Raja + new incumbent

    If so, I can see that HHJ Luba QC decided that the three tenancies with a claim would have been Tenancy P, Q & R above with claimant names in capitals, but does that mean COURTNEY STURGISS gets 75% of the claim amount and TANYA GUPTA 25%?

    This despite the fact that COURTNEY STURGISS abandoned the property without replacing herself or even cleaning her room and said “keep the bond to pay for the remainder of my rent and for a cleaner to clean my room”, also because Miss Sturgiss sought the sum of £348 said to represent the non-returned element of her deposit. It was not returned AT HER REQUEST in lieu of notice / replacement of tenant and the cleaning of her room and “that she accepted a rental liability up to 15 May 2020”, so a liability of 2 months’ rent (£702 x 2 = £1404)?

    So does this mean that because Courtney Sturgiss did not meet her obligations to pay rent or replace tenant as well as clean up her room that Richard Boddy has a counterclaim for this amount against Miss Sturgiss?

    Do we at least allow Bella Aude, Braiden Moffat & Elrica Raja have a “virtual” share counted that is calculated but not awarded, why should the claimants benefit from non-claimants not wishing to punish their Landlord? Also what happens when the Landlord has reached a settlement agreement with some of the Tenants where they agree not to be party to a claim?

    The other thing that does not add up for me is the deposit amount; it was deemed that the amount of the deposit was £1205 for 3 rooms.

    “Miss Sturgiss moved in on 17 October 2018. She paid £1,050 to the outgoing occupiers and thereafter £702 per month towards the overall monthly rent. So her deposit was £348 which multiplied by 3 tenants or 3 rooms still comes to £1044 not £1205

    “Miss Gupta paid Mr Moffat the sum of £800 and to Miss Aude her agreed share of the monthly rent at £660”

    I have no idea how they got to £800/£660 and can only assume it was for part of the month, although it seems that Miss Gupta got her £800 back in the Ponzi type arrangement.

    “Miss Gupta advertised her room on the internet (spareroom dot com) at a rental of £689pcm. Miss Elrica Raja responded. In due course, she paid Miss Gupta £800 and by the next rent date she had moved in. She paid her contribution toward the global rent due on 15 February 2020.”

    It concerns me if the reshuffling of rooms was a factor, because student Tenants do this all the time of their own volition and without consultation with the Landlord. They sometimes also allow another person to share the property, are we saying that this too creates a new tenancy. It would be ridiculous.

    This case (if not appealed to a higher Court) should be a wakeup call for Landlords to get their act together and not allow this churning, perhaps Landlords could allow any tenant that wants to leave to sublet and take responsibility for the protection of the deposit they take or they have to persuade a lead tenant to take all the liability and again they have to agree to become live in Landlord with lodgers. It would always be messy but as a result of this case university student lets will have to be far less flexible, all because of the greed factor demonstrated in this case (no harm no foul). I will post the other issue later.

    • Giles Peaker

      Katie, I’m afraid you lost the argument – in law – at the moment you said that the ‘churn’ was indeed a surrender and regrant. That means it is a new tenancy. That is the only meaning of it.

      As for the rest, you are, I am afraid, very confused. The deposit penalty claim can only be – as HHJ Luba QC said, for 1 to 3 times the whole deposit. A joint tenancy is a single tenancy, and there is only one deposit. The ‘share’ of deposit of each joint tenant is between the tenants. It has nothing to do with the landlord. Here, the claimants got one times the deposit for each of three breaches. The other tenants were joined as parties but didn’t participate. It isn’t for the court to allocate ‘shares’ in the penalty.

      And landlords – any competent landlord – should never have allowed ‘churns’ to happen without their agreement and approval. That has always been the case because these situations cause a complete mess for both landlords and tenants. I mean for heaven’s sake, I was writing about it here back in 2010, and the site only started in 2006.

      I’ve no idea what you mean by referring to ‘Ponzi type arrangements’ and so on. You appear to be confused about the ‘deposit share’ payments to the outgoing tenant, and the share of monthly rent payments. In fact you do a lot of supposing and accusing. I can only presume that you might yourself be worried. But this has been on the cards since 2007, 14 years ago…

      While on supposing and accusing, Ms Sturgiss didn’t ‘abandon the property’ – as the judgment makes clear, she gave formal notice and accepted her rent liability continued for the month after she had left. She left to get home to Australia at the start of the pandemic.

      I’ve also no idea what you mean about a ‘lead tenant to take all the responsibility’. That isn’t how it works. Can I warmly recommend that you get decent legal advice on such arrangements?

  2. Clark

    Our firm acted for the claimants in this case and as HHJ Luba rightly pointed out, this is an extremely common scenario which needed clarification.

    In relation to a couple of your points:

    1. The deposit multiplicand: we often get scenarios where say there are two tenants on a joint contract who let’s say each contribute £1,000 each to a joint tenancy deposit of £2,000. If say Tenant 1 were to cause £1,500 worth of damage to the property, would the landlord only deduct £1,000 from the joint tenancy deposit and return the full £1,000 of innocent Tenant 2’s deposit? Absolutely not. The landlord treats both tenants as being jointly and severally liable and likewise with the deposit. It’s interesting then to hear landlords argue the contrary when it comes to the s.214(4) claim if one or more of the joint tenants elects not to be a joint claimant under CPR19.3. As HHJ Luba QC stated: “I do not consider the liability severable in that way.” It cuts both ways.

    2. A lot of landlords simply run their properties badly with very little regard to the fact that residential lettings is a regulated industry. If I wanted to earn a few quid selling dodgy electronics at the market, should I then complain when being on the receiving end of a claim if the dodgy products cause injury? If landlords don’t want to comply with their legal obligations they should sell up and leave the industry. Most landlords do things by the book and it’s unfair to compliant landlords seeing rogues and cowboys getting away with it. How hard is it for landlords when there is a change of tenant, draw up a new contract and register the tenants’ deposits? It’s a 15 minute job when they are potentially earning £25k+ in rent in London over the course of the year. Again, if you’re running a business (i.e. being a landlord) you should do your paperwork (and file your tax returns)

    • Giles Peaker

      Hi Clark

      The thing about joint tenants deposits is that all joint tenants have to be a party to a claim. (Not necessarily as a claimant, but a party). A landlord would be well within their rights to defend a claim on the basis that all joint tenants aren’t parties.

      Oddly, this has not yet come up on RROs.

  3. Clark

    Hi Giles,

    That’s why in this case D2-D5 were joined as parties as Defendants pursuant to CPR19.3(2).

    We often have to deal with this. It is sad for some tenants who simply don’t want to get involved in the claim in any form. We had one woman who was joined as a defendant pursuant to CPR19.3(2) and she phoned our offices saying that since she was in a regulated industry, she had to declare her involvement as a party in litigation even though she didn’t want to be involved and no remedy was sought from her. We asked the judge at the directions hearing to exercise his discretion and remove her as a party to the proceedings but he wasn’t having any of it. She added nothing to disclosure whatsoever. Other judges have readily exercised discretion under r19.3 and removed tenants who didn’t want to be involved in the claim from the proceedings.

    • Giles Peaker

      Well they shouldn’t. It is wrong in law. ‘Unless the court orders otherwise’ in CPR 19 is not just an issue of ‘I don’t want to be’.

  4. Clark

    p.s. and no remedy was sought. Perhaps a suggestion changing the rules so that there can be a 3rd type of party i.e. not a claimant or defendant. i.e. neutral: no remedy sought from that party, doesn’t want to make a claim and is consents to be bound by the judgment

    • Giles Peaker

      Um, what kind of civil claim involves no remedy being sought?

  5. Clark

    Paragraph of HHJ Luba QC’s judgment states:

    “40. In compliance with the procedural rules, Miss Aude, Mr Moffat and Miss Raja were added to the proceedings as parties although they seek no remedy or relief, and none is sought from them.”

    In this case the remedy is a payment of 1-3x the deposit under s.214(4) HA 2004. That states that the Landlord must pay. Miss Aude, Mr Moffat and Miss Raja were joint tenants also and as such not liable for the penalty since only the landlord is.

    Is there a more just, systematic way of dealing with CPR19.3?

    • Giles Peaker

      But the others weren’t claimants, although could have been had they chosen to be. But the claim was for a remedy, obviously.

      I’m afraid your bewilderment about the situation betrays that you are a non-lawyer director of a law firm.

  6. Michael Barnes

    Slightly off topic, but from your statement “the maximum number of joint tenants is capped at four by s.34(2) Law of Property Act 1925”:

    If there are more than 4 people named on a joint tenancy agreement, it is my (unqualified) understanding that only the first 4 named have a legal interest in the property, but they all are party to the contract and hence to the terms of the tenancy,

    In this case can the fifth named tenant serve a valid NTQ in a periodic tenancy, or is that restricted to the first 4 named?

    • Giles Peaker

      Yes all parties to the contract, but the fifth only has an equitable interest in the tenancy, for which the four are trustees (as well as for themselves and each other as joint tenants).

      That raises some interesting problems, for exampple if one of the four served notice – would that be a breach of their duty as trustee to the fifth? Possibly so..

      No, I don’t think the fifth could serve a valid NTQ. They are not a tenant.

  7. Daniel N

    Wouldn’t they be a tenant of an equitable joint tenancy though, which they could presumably end by notice? If I understand ss.34 and 36 of the LPA1925 correctly (I say, not really confident I understand it at all) it envisages that a joint tenancy in law and a joint tenancy in equity exist simultaneously. (And the equitable joint tenancy can be severed leaving a tenancy in common, not that there’s any reason to do that for a short lease.)

    Ugh, every time I have to read the Law of Property Act 1925 it leaves me with a headache. So obviously written for a different time, and not really with short leases in mind.

    • Giles Peaker

      The beneficiary of a trust can’t deal with the legal title of a trust asset. So, no NTQ

      Yes, joint tenants can sever the joint tenancy to be tenants in common. This really wouldn’t help or work in the context, and would only woks for the legal tenants, not any equitable tenant.

  8. Sam

    The bit of this decision I am struggling with is the order made “There shall be judgment for the claimants in the sum of a total £3,615 (i.e. £1,205 in respect of each of the three relevant churns which produced a new tenancy to which they were in turn either or both parties).” It may be that this was made clearer in the actual order made, but how can Miss Gupta be entitled to a penalty payment for a period before she was a tenant and had paid a deposit?

    Surely the constitution of the joint tenancy (referred to as the churn in the judgment) and who was deemed to have paid the deposit gets it. If that is right, Gupta is not entitled to a share of £3,615. She is only entitled to a share of £2,410. So two orders: judgment for the first claimant in the sum of £1,205 and then judgment for the claimants in the sum of £2,410.

    On the facts of this case, the surrender and re-grant makes sense. Landlord knew who the tenants were at all times and always accepted rent from them and told them that they were tenants. He never entered into a single relationship with the person who actually paid. In other cases, where the landlord has no idea what is going on, it may be more difficult.

  9. Sam

    Sorry Gupta was only in one churn; not two, but the point is the same.

    • Giles Peaker

      It was a joint claim, so one sum awarded for all relevant churns. How the claimants divided that up between them was up to them.

  10. Sam

    I am led to understand that it was common ground that Miss Gupta would not receive any payment in respect of a churn that she was not a party.

  11. possessionfrienduk

    Interesting Giles about all tenants having to be a party to a Deposit protection claim ( where is that laid out ? ) and even more interesting as to why that same ‘all parties’ apply to RRO’s ?

    • Giles Peaker

      CPR 19.3(1) – ” Where a claimant claims a remedy to which some other person is jointly entitled with him, all persons jointly entitled to the remedy must be parties unless the court orders otherwise.”

      CPR doesn’t apply to Tribunal proceedings, and Housing and Planning Act 2016 expressly says ‘a tenant’, not ‘the tenants’, so doesn’t have to be a joint claim.

      • Neil Wagner

        But, isn’t the wording of s214 (1) of interest here, which says “the tenant or any relevant person”, so THE tenant OR means, the lead tenant as identified in the deposit protection certificate, can be a claimant on his own? has this argument tested in court? If not, how does one add other joint tenants as party to an ongoing counterclaim? N244 is strictly needed or just consent from other tenants to the lead tenant’s proceedings would suffice?

        • Giles Peaker

          No, joint tenants are ‘the tenant’. There is no concept of ‘lead tenant’.

          Other parties must either be claimants (so joined as claimants to the counter-claim) or added as defendants.


    What was the outcome in terms of the Cost order following the Appeal?

    • Giles Peaker

      Don’t know, but costs usually follow the event, and can’t see way this would be different. That said, the possession claim is ongoing.


    Do you know which firm acted on the Appeal? Would be interested to know how cost were going to be treated given this could be a more important aspect of the decision from a practitioner prospective. Given as you state a possession claim is ongoing, i guess how cost will be determined could be some way off.

    • Giles Peaker

      Well it is pretty straightforward. If you win an appeal, you get the costs of the appeal, and usually the hearing that gave rise to the order under appeal (subject to assessment). This is standard. The remainder of the costs of the case would fall to be determined by the final decision (or any subsequent appeal).

      I suppose there may have been an issue based split on costs, but it doesn’t really look like one of those cases. Practitioners get used to this, surely?

  14. Neil Wagner

    Hi Giles, regarding the req. that all tenants needing to be a party in a s214(4) counterclaim (CPR19.3), doesn’t Gladehurst Properties Ltd v Hashemi could be used where the appeal court held that witness statement from other party to carry on their behalf is sufficient ? This means not all tenants need to be party as long as one has other tenants witness statements? or would this still need an N244?

    • Giles Peaker

      No, CPR requirements are clear on this now. CPR 19.3:


      (1) Where a claimant claims a remedy to which some other person is jointly entitled with him, all persons jointly entitled to the remedy must be parties unless the court orders otherwise.

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

      So, unless can persuade court to order otherwise (and there would need to be a very good reason for this), have to be a party.

      • Neil Wagner

        ok, so then did CPR 19.3 changed after Gladehurst Properties Ltd v Hashemi then? Because, I would have thought the argument on that case is still sound and binding.

        • Giles Peaker

          No, the provision is the same. The Court of Appeal in Hashemi is not authority that ‘a witness statement is ok’. Here is what the court said:

          I think that the effect of Mr Johnson’s evidence was in fact to confirm that he was always a party to the action. He had authorised the commencement of the proceedings in his name and his failure to sign a statement of truth on the claim form or the appellant’s notice does not invalidate that. It was therefore unnecessary for the judge to make a representation order.

          The other tenant(s) have to be parties, unless the court orders otherwise.

  15. Neil Wagner

    thanks Giles, but does this and CPR 19.3 apply for Tenants when they counterclaim, i.e if the Landlord starts proceedings against all of the tenants, but only one counterclaims (note, in Gladehurst Properties Ltd v Hashem, it was other way around) ?

    • Giles Peaker

      Yes. A counterclaim is a claim. But in those circumstances, the other tenants are already parties in proceedings.

      • Neil Wagner

        Hi Giles, thanks, but just out of curiosity in what other cases, CPR 19.3 would have applied for a counter claim pls?

  16. Neil Wagner

    Hi Giles, not sure what question, you answered ‘Yes’ for. My questions was in what other circumstances of a counter claim, the CPR 19.3 will NOT apply. As I would have thought, all joint tenacies, when faced with a claim from the landlord, need not to comply with 19.3 if only one tenants counter claims?

    • Giles Peaker

      That was your first example. Already answered.

      And you asked ‘in what other cases CPR 19.3 would have applied for a counterclaim’. That was the question I answered. Yes, it does apply.

      • Neil Wagner

        Hi Giles, Could you provide me one example, where the CPR 19.3 would have applied for a counterclaim pls? a scenario perhaps the original claim was against only one of the tenants ? just trying to understand the scope of CPR 19.3 in relation to s214 claims.

        • Giles Peaker

          Neil, as I have repeatedly said, CPR 19.3 applies to all counterclaims. I don’t know why you keep persisting with the idea that it only applies in certain situations.

  17. Neil Wagner

    Hi Giles, What I was confused about is this: if as you mentioned on your comment on 28/02/2022 at 2:57 pm, that CPR 19.3 does not apply when even only one of the tenant counterclaim for a claim brought by landlord against all tenants, under what circumstances would CPR 19.3 apply for a counterclaim ? (if you can provide one example it would clear things up) Thanks

    • Giles Peaker

      Neil, no, I absolutely didn’t say that. Of course CPR 19.3 applies. It is just that in that situation, the other tenants are already parties as defendants to the claim. They must also be either counter-claimants or defendants to the counterclaim, but they don’t need to be added as a new party, because they are already parties to the proceedings.

      One more time, CPR 19.3 applies to all counterclaims.

      • Neil Wagner

        Thanks Giles. that clears this up..cheers.



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