Case No: B5/2011/1865
Neutral Citation Number: [2012] EWCA Civ 111
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOW COUNTY COURT
(HIS HONOUR JUDGE MITCHELL)
Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday 2 February 2012

Before:

MR JUSTICE BRIGGS

- - - - - - - - - - - - - - - - - - - - -

Between:

	TROISI	
Appellant	
	- and -		
	
VINCE

Respondent	

- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

The Appellant appeared in person.

The Respondent did not appear and was not represented.

   - - - - - - - - - - - - - - - - - - - - - - -

Judgment
MR JUSTICE BRIGGS:

1.	The appellant before the court, Mr Troisi, was the respondent, Mr Vince’s, tenant under an assured shorthold tenancy at 17B Garland Road, Redhill.  That tenancy began in January 2010 and Mr Troisi vacated the premises in July 2010.  In his extremely helpful chronology which he has provided he acknowledges that new tenants were in occupation of the premises by 3 September 2010.

2.	Having failed to persuade Mr Vince to return the whole of his £800 deposit, Mr Troisi claimed on 15 September in the Staines County Court the recovery of the deposit and a payment of three times the deposit as well, pursuant to Section 214 of the Housing Act 2004.  There was a preliminary hearing of Mr Troisi’s claim in the Staines County Court before District Judge Batcup on 2 November 2010 and on or about 17 November the respondent, Mr Vince, did pay the deposit to the Deposit Protection Scheme (I will call it the DPS).  The second and effective hearing of Mr Troisi’s claim took place on 11 February 2011 before District Judge Vary at which Mr Troisi was successful.  District Judge Vary ordered the return of the whole of the deposit; secondly he ordered a three times the deposit payment under Section 214; thirdly he made an order for costs in Mr Troisi’s favour.  

3.	Mr Vince appealed and on 23 June 2011 that appeal was heard by HHJ Reid sitting in the Guildford County Court.  He firstly dismissed Mr Vince’s appeal against the order for the return of the whole of the deposit; secondly he allowed Mr Vince’s appeal against the order for payment of three times the deposit and he directed that there should be no order for costs on the appeal and no order of costs on the claim in the court below. 

4.	Mr Troisi now seeks permission to appeal the second and third parts of HHJ Reid’s decision.  I note incidentally that Mr Troisi says he has incurred costs of about £985 in prosecuting the matter throughout as a litigant in person, a substantial part of that being the county court fee.  On 31 October of last year Rimer LJ refused permission to appeal on paper.  His conclusion was that it was a second appeal which did not in his view satisfy the criteria that there should either be an important point of principle or practice at stake or some other compelling reason for appeal.  Further, he considered that the appeal had no real prospect of success, both because HHJ Reid’s decision in relation to the payment under Section 214 was the inevitable result of two relevant Court of Appeal decisions and secondly because the judge’s decision in relation to costs was well within his discretion as to an appropriate order for costs in the circumstances that had occurred.  

5.	Mr Troisi has renewed his application orally before me.  As I have said, he has provided an exceedingly helpful bundle with grounds of appeal, chronology, accompanying documents and an additional note for the hearing.  In the result he was able to be very brief in his oral observations.  In essence his points may be summarised as follows.  First, he says that the jurisdiction under Section 214 of the Act is engaged if the deposit is not paid by the landlord by the time of the initial hearing.  He submits that the Court of Appeal’s decision in Tiensia v Vision Enterprises Limited [2010] EWCA Civ 1224 should be understood in that way.  Secondly, although this court will no doubt regard itself bound by the decision in Gladehurst Properties Ltd v Hashemi [2011] EWCA Civ 604 to conclude that a claim under Section 214 cannot be made once the tenancy has ended, he submits that in his case, although he left occupation of the premises in July 2010, the tenancy should not be regarded as having ended for as long as there remained an outstanding question as to the recovery of his deposit.  As to costs, Mr Troisi maintains his case, rejected by Rimer JL and indeed by the judge, that it was unjust for him not to get at least his costs of the claim for the recovery of the deposit since he had succeeded in relation to that in full.  

6.	This is, as I have said, a second appeal and I must therefore be satisfied that there is indeed an important point of principle or practice at stake or that there is some other compelling reason for giving permission to appeal.  I am not satisfied that that test has been passed by Mr Troisi in the present case.  His essential difficulty is that he made his application under Section 214 after his tenancy had ended.  In that context his tenancy must have ended in my judgment at the very latest when he found in September 2010 that there were other tenants at the premises.  A tenancy is not extended merely because there are outstanding financial disputes between the landlord and the tenant arising, for example, from a payment of a deposit or for any other reason.  The tenancy ends when possession is consensually given up if that is earlier than it would otherwise end pursuant to the written terms of the tenancy agreement.  It follows, it seems to me, that in relation to the question of whether HHJ Reid was right in setting aside the judgment in the court below for three times the deposit under Section 214, there is no real prospect that Mr Troisi will succeed on that appeal.

7.	As for Mr Troisi’s complaint about the order for costs made by HHJ Reid, I have not been persuaded by anything that he has provided in writing or orally today that Rimer LJ’s conclusion that this was not an appealable point is incorrect.  It seems to me that, firstly,  the question for the judge was one of discretion; secondly, no point of principle or practice or other compelling reason for allowing an appeal against that costs order has been disclosed by anything that Mr Troisi has written or said; and thirdly, this was a case in which prior to the hearing in the Staines County Court Mr Vince had offered, I think, £600 out of the £800 deposit so that the issue between them as to the deposit itself was really a £200 issue, whereas there was a very much larger financial issue as to the three times the deposit payment on which Mr Troisi eventually lost.  In those circumstances it seems to me that there is no real prospect that Mr Troisi would persuade this court to reverse HHJ Reid’s decision on costs and for those reasons I do not give permission to appeal.

Order:  Application refused