Lumsden v Charles (2025) EWCC 7

A county court appeal in a tenancy deposit penalty claim, which is both a catalogue of ‘you don’t want to do it like that’, and has a significant point on the operation of section 48 Landlord and Tenant Act 1987.

Ms Lumsden had been the tenant of Ms Charles, initially as a joint tenant with her parents, and then, following her estrangement from her parents as the sole tenant until December 2020. This was at an address in Catford. (As an aside, I don’t think it can be right that she was the sole tenant, as the deposit claim was apparently based on a renewed joint tenancy entered in 2017 for a five year term. But nothing really turns on this).

In December 2022, before what was agreed to be the limitation date of 7 January 2023, solicitors for Ms Lumsden issued a Part 8 claim form for a deposit penalty claim. No particulars of claim or witness statement was filed with the claim form. The claim form had been marked as ‘for solicitor service’ . The address for the defendant, Ms Charles, was an address in Richmond. Ms L’s parents were named as second and third defendant – quite properly, as joint tenants, they had to be included as parties – but no address was given on the claim form for them.

The solicitors had been sending pre-action correspondence to the Richmond address, a yahoo email address, and to the property that had been tenanted. The tenancy agreement, perhaps rather oddly, gave that as the landlord’s address. There had been no reply from Ms C to any of this.

We must note, because it will become significant, that there had been previous litigation between Ms C and Ms L in 2020. In that litigation, Ms C had given her address for service as a completely different address in Richmond to that now being used by Ms C’s solicitors.

The claim form, together with ‘details of claim’ and a witness statement, was then served on the property and the Richmond address. No acknowledgement of service was filed and Ms C applied for and got default judgment for £6300, 3 times the deposit. A third party debt order was then obtained.

At this point, Ms C apparently became aware of the proceedings, told of the TPDO by her bank. She applied to set aside the judgment on that basis. This was ordered and Ms C filed an acknowledgment of service and applied to strike out the claim on the basis that no evidence (particulars or witness evidence) had been filed with the claim form, so there was no evidence and no reasonable grounds to bring the claim – the court’s permission being required to rely on evidence not filed with the claim form – and that the claim was an abuse of process. Ms L filed a reply and an application for relief from sanctions to be able to rely on the ‘details of claim’ and witness statement.

Still with me? Good, because this is leading somewhere.

At the hearing of the applications, the District Judge noted that there was no indication that the claim had been filed on the second and third defendants (Ms C’s estranged parents) and indeed Ms C’s evidence was that they were in Egypt. The DJ went on to consider the Denton criteria on Ms C’s relief application. The ‘inexperience of the fee earner’ and ‘misunderstanding of the CPR’ put forward were not a good reason for the breach of the rules (inevitably), which breach was serious and significant.

In all the circumstances of the case, service on the defendant had not properly been made, and the claimant was aware of the address used by Ms L in the previous proceedings. There was no address for service for the second and third defendants. The application for relief was very delayed, only being made after Ms L’s application to strike out. There was some prejudice to Ms L if relief was granted. With a view to the overriding objective, it was not accepted that Ms L would avoid a successful claim and Ms C’s recourse to a professional negligence claim would cause ‘additional trouble’ to the court.

Relief from sanction was denied and the claim struck out.

Ms C appealed. Originally on the basis that

“the learned judge erred, in fact and in turn in law, by wrongly determining service and address of claim (sic) was incorrect, when CPR 6.9 allowed for service at last known address, that (sic) which was obtained from the HM Land Registry – which in turn adversely impacted granting relief.

“the learned judge erred in fact and in turn in law, by wrongly accounting about service addresses absence (sic) for 2nd and 3rd defendants, when they are (sic) no longer part of the proceedings and further, that issue was not explored during submissions and only raised during judgment as such (the Appellant) was denied opportunity (sic) to argue – which in turn adversely impacted granting relief.

“the learned judge erred, in fact and in turn in law, by failing to take account of the overriding objective of saving of further resources in light of the Senior Court precedent of Badejo v Cranston (2019) EWHC 3343 (Ch) which merited that relief be granted.”

However, on the issue of service, by the time of the hearing of the appeal, Ms C’s skeleton argument instead argued

There was valid service because the address provided to the Claimant in the Lease pursuant to section 48 of the Landlord and Tenant Act 1987 was (the Property address). By operation of CPR 6.8(b), the claim form may be served at ‘section 48 address’ being an address given by a defendant which they may be served.

The argument about service being on a Land Registry address was abandoned.

The problem with this was that it was a) not an argument run at first instance, and b) not in the grounds of appeal, and no application had been made to amend the grounds of appeal. Counsel for Ms C had to make an oral application at the start of the appeal hearing for relief from sanction and permission to rely on the new ground. (Having to apply for relief from sanction in your appeal of a refusal of relief from sanction is, it hardly needs to be said, not ideal.)

By the skin of its teeth, the application was granted, on the basis that Ms L’s counsel had had time to deal with the point.

However, when it came to the actual point on section 48 service, Ms C failed. Section 48 does require the landlord to provide the tenant with an address in England and Wales for service of notices, and it is up to the landlord to keep that updated. CPR 6.8 does allow for service on the address given under section 48, and this extended to the service of proceedings. But this did not extend to service of proceedings between a former landlord and former tenant.

Section 48 states that the address given applies as the address for service of notices and: “including notices in proceedings”. In other words, it goes beyond just notices in and under the act itself. Similarly, CPR 6.8 states that address can be used “in any claim” and its use is not restricted to claims under the Landlord and Tenant Act 1987 between a tenant and a landlord. The purpose of CPR 6.8 is set out in the heading to the rule namely that service can be affected at an address given by defendant where the defendant is either a business within the UK and has given the address for that purpose or is a landlord who has provided an address under section 48. To say that this provision covers a former landlord is, it seems to me, contrary to the drafting of the rule. The drafting envisages a current relationship between a business and a claimant under CPR6.8(a) as the address for service must have been provided for the purposes of the proceedings. This supports an interpretation that the relationship between a landlord and tenant must also be current. Furthermore, the phrasing of any claim by “a tenant” against “a landlord” supports a current relationship. In this case if the question had been asked: is this a claim between a tenant and a landlord the answer would have been “no”. This is a claim by a former tenant against a former landlord.

In any event, Ms L had provided a subsequent address in the previous proceedings as the address for service.

It followed that the claim was never served and was void. The rest of the grounds of appeal were therefore redundant, but in any event, while the first instance Judge had not been aware that the 2nd and 3rd defednants had been removed from the claim by a previous order, this was not key to the refusal of relief. The relevant breach of the CPR had occurred on issue of the claim form, that there had been procedural steps and orders did not excuse the delay in applying for relief. The decision was clearly within the Judge’s discretion.

Appeal dismissed.

Comment

The headline point has to be the section 48 one. Assuming the Circuit Judge is right (and this is not a binding decision, of course), then the ability to rely on the address given by the landlord under section 48 Landlord and Tenant Act 1987 as an address for service of notices and proceedings only applies during the period of the tenancy. Once the tenancy is over, the usual rules of ‘last known address’ etc. apply. This is important.

As for the rest, well, the Part 8 claim procedural rules are strict and must be followed (and who was letting an ‘inexperienced fee earner’ loose on this without checking?).

Do not rely on ‘inexperience of fee earner’ and ‘misunderstanding of the CPR’ if you are a firm of solicitors. It just can’t be an excuse in the eyes of the court, let alone a good reason for the error.

Parties being identified in proceedings (eg as joint tenants, as here) must have an address for service given.

And a last observation on Ms C’s prospective negligence claim against her original solicitors (who were surely not those acting on the appeal, because you really can’t keep acting to try to rescue a situation that might have been caused by your own cock up, you really can’t), I suspect that may depend in part on what they were told and given about Ms C’s previous litigation against Ms L. But I also suspect we’ll never find out.