Prescribed Information Signed by Companies
Bali v Manaquel Company Limited, County Court at Central London (HHJ Hand QC), 15th April 2016. Mr Bali was the assured shorthold tenant of Manaquel Company Limited. A tenancy deposit was paid by Mr Bali to Manaquel in connection with the tenancy and the tenancy deposit was protected within the required 30 days. A section 21 notice was later served on Mr Bali. In the first instance the District Judge found that Manaquel was compliant with the tenancy deposit legislation and made an order for possession, Mr Bali appealed this decision. The basis of Mr Bali’s appeal was that the prescribed information that had been served was defective for the following reasons:

i) The landlord had not included the Deposit Protection Service leaflet for tenants. The landlord had included a print out of the DPS ‘terms and conditions’ but not the leaflet.

ii) The landlord had not properly provided a certificate as required by s.2(1)(g)(vii) of the The Housing (Tenancy Deposits) (Prescribed Information) Order 2007.

The 2007 order includes a requirement at 2(1)(b) to give the tenant: (b) any information contained in a leaflet supplied by the scheme administrator to the landlord which explains the operation of the provisions contained in sections 212 to 215 of, and Schedule 10 to, the Act On point i) the appeal Judge held that the requirement was to provide ‘any information contained in a leaflet’, not the leaflet itself. As it was common the DPS ‘terms and conditions’ included all the information that was contained in the DPS leaflet and accordingly the requirement was satisfied, and this ground of the appeal failed. As to point ii) the 2007 order includes a requirement at s.2(1)(g)(vii) that the prescribed information must be signed in the form of a certificate: (vii) confirmation (in the form of a certificate signed by the landlord) that— (aa) the information he provides under this sub-paragraph is accurate to the best of his knowledge and belief; and (bb) he has given the tenant the opportunity to sign any document containing the information provided by the landlord under this article by way of confirmation that the information is accurate to the best of his knowledge and belief. – Emphasis added. The issue was that the certificate provided was ‘signed’ by Manaquel’s name being written in manuscript as Manaquel Co. Ltd and signed “PP” with illegible initials. Mr Bali argued that this breached the requirements of s.44 Companies Act 2006 which states: (2) A document is validly executed by a company if it is signed on behalf of the company– (a) by two authorised signatories, or (b) by a director of the company in the presence of a witness who attests the signature The question was whether the prescribed information certificate was a document that required ‘execution’. The appeal judge held that it was, as it was required to certify the accuracy of information contained within the prescribed information. Resulting from the Judges findings, the requirement of s.2(1)(g)(vii) of the 2007 Order had not been met, the prescribed information had not been given in full and the section 21 notice served was defective. In a later case Joseph Muscat v Miss Valerie Ash, Miss Natalie Ash and Mr Andre Maxwell in the Croydon Court (District Judge Rowland) 11 July 2018 the same issue was raised but in relation to a letting agent, Gordon & Co (a trading style of IMM Properties Ltd) who signed the prescribed information. The Court had to decide whether a letting agent which is a company when signing the prescribed information was required to comply with s.44 of the Companies Act 2006. The Defendants relied on Bali v Manaquel Company Limited. Mr Sasha Charles for the Claimant relied on the provision in s.213(6)(a) of the Housing Act 2004 which states the prescribed information must be provided in the prescribed form or a form “substantially to the same effect” as per s.213(6)(a) of the Housing Act 2004. It was argued that although the prescribed information was not signed in accordance with the Companies Act 2006 the prescribed information had still met its legal purpose. In the authority Mountain v Hastings (1993) 25 H.L.R. 427 Ralph Gibson LJ said: “The regulation, however, expressly permits the notice to be effective in the prescribed form if it is ‘substantially to the same effect’, which I take to mean to be showing no difference in substance having regard to the legislative purpose of the provisions as a whole.” Further clarity was provided by Lord Justice Lewison in Ayannuga v Swindells [2012] EWCA Civ 1789 in which he stated: “I agree. The approach that we must take is clearly laid down by this court in Ravenseft Properties Limited v Hall to which Etherton LJ has referred. We must compare the form or information prescribed on the one hand and the information in fact supplied on the other. We must then ask, in the light of the purpose of the notice or the provision of information, whether the substance of the information has been supplied bearing in mind that that is a matter of fact and degree.” Lord Justice Mummery in Ravenseft Properties Ltd v Hall [2001] EWCA Civ 2034 stated: “… as I have already explained, are based on an unduly restrictive approach to the question of the conformity of the notice to the prescribed form. The judge was right to take the broader approach set out by him. The notice, despite its errors and omissions, conveyed to Mr Chubb the substance of the prescribed form and satisfies the statutory objective.” District Judge Rowland stated he found both arguments from the Defendants duty solicitor and Mr Charles for the Claimant persuasive but proceeded to find that the prescribed information was not provided in a form substantially to the same effective as that prescribed and the section 21 notice was accordingly defective. Comments We must note that the Deregulation Act 2015 has varied the requirement for the landlord to sign the prescribed information to include ‘the initial agent’ in the definition of landlord to allow agents to sign the prescribed information. It is therefore important letting agents and also landlords which are companies ensure compliance with s.44 of the Companies Act 2006 when signing the tenancy deposit prescribed information. As for the prescribed information not being signed at all or in a compliant manner, it is highly likely an issue which will find itself in court again. It would indeed be interesting to find out the views of the higher courts as to when a landlord may successfully rely on the provision that the prescribed information may be served in form prescribed or substantially to the same effect. It is obvious that the information is more crucial than a signature to meets its legal purpose. The absence of information from that prescribed would fall short of its legal purpose but the absence of a signature does not diminish the legal purpose of the prescribed information. If this is not the case, then is there simply no circumstance in which landlord may rely on the provision of s.213(6)(a) of the Housing Act 2004?