Judge strikes out possession claim over original deposit?

I concur with previous comments. Your tenancy started well before the Tenant Fees Act 2019 which introduced the deposit cap and you have not renewed the tenancy since then, so your 6 week deposit is/was compliant. Increasing rent does not equate to tenancy renewal. It appears the judge overlooked/did not pay attention to the fact that tenancy has not been renewed since inception in 2015. You should draw attention to this in your N244 application. And even if the Tenant Fees Act is applied retrospectively (which it isn't) the fact that the rent has increased brings the deposit well in line with the cap.
I also suggest getting a qualified solicitor to represent you. Good luck.

Reply to the comment left by Jaz Jaz at 13/01/2025 - 14:35
Here is a sample of text for your application, again you may want to seek representation and legal advice.

Application to Restore Possession Claim – N244 Form

1. Claimant’s Full Name:
[Your Full Name]

2. Defendant’s Full Name:
[Tenant’s Full Name]

3. What order are you asking the court to make and why?
I respectfully request that the court restore my possession claim to the list pursuant to CPR 55.16(4)(b).

Reasons:

The Section 21 notice served on [date] was valid and compliant with all statutory requirements.
The deposit was taken in January 2015, before the introduction of the Tenant Fees Act 2019, and has been continuously protected in a government-approved deposit protection scheme.
The tenancy became a statutory periodic tenancy on [date, e.g., January 2016], which predates the applicability of the Tenant Fees Act and its deposit cap provisions (effective 1 June 2019 for tenancies that became periodic after this date).
The deposit remains compliant with the law, as confirmed by case law, including Superstrike Ltd v Rodrigues [2013] EWCA Civ 669, which establishes that a statutory periodic tenancy is a continuation of the original tenancy unless a new agreement is signed.
Restoring this claim is necessary to enable resolution of the matter and ensure compliance with due process.

4. Why are you making this application now?
This application is made within the 28-day grace period provided by the court under CPR 55.16(4)(b) to address the issues raised regarding the deposit and ensure the possession claim is heard fairly.

5. How do you want to have this application dealt with?
☒ Without a hearing
☐ At a hearing
☐ By telephone

6. What information will you be relying on in support of your application?
☒ The attached witness statement
☒ The statement of case
☒ Evidence set out in the box below

7. Evidence in Support

Background

The original tenancy agreement was signed on [date, e.g., January 15, 2015], with a fixed term of [e.g., 12 months].
The tenancy became a statutory periodic tenancy on [date, e.g., January 15, 2016] when the fixed term expired, pursuant to Section 5 of the Housing Act 1988.
The deposit of £1,600 was taken at the start of the tenancy in 2015, before the introduction of the Tenant Fees Act 2019.
The deposit has been continuously protected in [name of scheme, e.g., DPS or TDS], and all prescribed information was provided to the tenant.
Relevance of the Tenant Fees Act 2019
The Tenant Fees Act 2019, which introduced a cap of 5 weeks’ rent for tenancy deposits, applies only to:
New tenancies signed after 1 June 2019; or
Tenancies that became periodic after that date.
Since the tenancy in this case became periodic in 2016, the deposit cap does not apply retroactively. This position is supported by the decision in Switaj v McClenaghan [2024] EWCA Civ 1457, which clarified that the Tenant Fees Act does not apply retroactively to payments made before its commencement.

Deposit Compliance

The deposit was protected and remains compliant with the rules that applied at the time it was taken. No new tenancy agreement was signed after June 1, 2019, and the statutory periodic tenancy is treated as a continuation of the original agreement under Superstrike Ltd v Rodrigues [2013] EWCA Civ 669.
Request to Restore the Claim
Given that the Section 21 notice was valid and compliant with statutory requirements, I respectfully request that the claim be restored. The possession claim was interrupted on the basis of concerns about deposit compliance that are not applicable in this case.

Attachments to the Application:

Copy of the tenancy agreement (dated [January 2015]).
Proof of deposit protection from [name of scheme].
Section 21 notice served on [date].
Any correspondence with the tenant regarding compliance and prescribed information.

Relevant case law excerpts:

Superstrike Ltd v Rodrigues [2013] EWCA Civ 669.
Switaj v McClenaghan [2024] EWCA Civ 1457.

Reply to the comment left by Neil Heffey at 14/01/2025 - 08:49
Neil, You are True gentleman. I truly appreciate your assistance it is like breath of fresh air. I am assuming that Application fees is £119? Can I also mention that before service of Section 21 tenant was also served with Section 13 Notice although rent increase was applied couple of months after Service of Section 21 notice but Section 13 was issued before Section 21 and if we look at current rent then even deposit amount is compliant in all circumstances.

You mention Witness statement, do I have to write that in Witness statement or it can be written on application? Many thanks

Reply to the comment left by Jaz Jaz at 14/01/2025 - 09:50
Below is a sample witness statement for you to use. You will need to complete dates and information as required. Check that you actually issued proceedings within 6 months from the date of service of the section 21. As stated previously, you would be wise to consult a solicitor as adverse costs can be in the thousands if you are unsuccessful.

IN THE [NAME OF COURT]
Claim Number: [Insert Claim Number]
Between:

[Your Full Name] (Claimant)
And
[Tenant’s Full Name] (Defendant)

WITNESS STATEMENT OF [YOUR FULL NAME]
I, [Your Full Name], of [Your Address], state as follows:

1. Introduction

I am the Claimant in this matter and make this statement in support of my application to restore the possession claim pursuant to CPR 55.16(4)(b).
The matters in this statement are within my personal knowledge unless stated otherwise, and I believe them to be true.

2. Background to the Tenancy

On [date, e.g., January 15, 2015], I entered into a fixed-term assured shorthold tenancy agreement with the Defendant for the property at [property address] (the “Property”).

The agreed rent at the start of the tenancy was £1,075 per calendar month. A deposit of £1,600 was collected at the commencement of the tenancy.

The tenancy became a statutory periodic tenancy on [date, e.g., January 15, 2016], pursuant to Section 5 of the Housing Act 1988, when the original fixed term expired.

The rent was subsequently increased to £1,200 in April 2019, with the agreement of the Defendant. A further rent increase to £1,400 took effect in [date, e.g., January 2022].

3. Deposit Protection

The deposit has been continuously protected since it was collected in 2015. It is currently held in [name of deposit protection scheme, e.g., DPS/TDS], and all prescribed information has been provided to the Defendant.

At the time the deposit was collected, there was no statutory cap on the amount of deposit a landlord could take, and the amount of £1,600 was lawful.

The tenancy became periodic in 2016, before the introduction of the Tenant Fees Act 2019, which capped deposits at 5 weeks’ rent for new tenancies or tenancies that became periodic after 1 June 2019.

As the tenancy became periodic before 1 June 2019, the deposit cap does not apply retroactively, as clarified in Switaj v McClenaghan [2024] EWCA Civ 1457.

4. Section 21 Notice and Court Proceedings

On [date], I served a valid Section 21 notice on the Defendant, seeking possession of the Property.
The notice complied with all statutory requirements, including the provision of prescribed information for the deposit, the gas safety certificate, the EPC, and the How to Rent guide.

A possession claim was issued on [date], but the claim was interrupted based on concerns about the deposit’s compliance with the Tenant Fees Act 2019.

The deposit was lawful and compliant at all material times, as it was taken and protected before the Act’s implementation and is unaffected by the 5-week cap, given that the tenancy became periodic in 2016.

5. Relevant Case Law

The following cases support the position that the deposit is lawful and does not render the Section 21 notice invalid:

Superstrike Ltd v Rodrigues [2013] EWCA Civ 669: A statutory periodic tenancy is treated as a continuation of the original fixed-term tenancy unless a new agreement is signed.

Switaj v McClenaghan [2024] EWCA Civ 1457: The Court of Appeal held that the Tenant Fees Act 2019 does not apply retroactively to deposits collected before its commencement, or to tenancies that became periodic before 1 June 2019.

6. Request for the Court

In light of the above, I respectfully request that the court restore the possession claim and allow the matter to proceed.

I believe that the Section 21 notice served on [date] is valid and compliant with all statutory requirements, and there is no legal basis to invalidate the notice on the grounds of deposit compliance.

Statement of Truth

I believe that the facts stated in this witness statement are true.

Signed: ___________________________
[Your Full Name]

Date: ___________________________

Reply to the comment left by Neil Heffey at 14/01/2025 - 10:14
Thanks Neil. So statement of case and Witness statement both need to be done? Also Tenancy agreement and deposit protection certs etc Judge already have them with accelerated possession claim. Do I need to attach them again?

Also fees is £119?

Reply to the comment left by Jaz Jaz at 14/01/2025 - 10:21
Here is a sample of your statement of case, I would make the payment of £119 as a hearing for the matter to be restored should ideally be done without a hearing. I would reference to the relevant exhibit where applicable

IN THE [NAME OF COURT]

Claim No: [Insert Claim Number]

Between:

[Your Full Name] (Claimant)
And
[Tenant’s Full Name] (Defendant)

STATEMENT OF CASE

1. Introduction

1.1 The Claimant is the legal owner of the property at [Property Address] (hereafter referred to as "the Property").

1.2 The Defendant is the tenant of the Property under an assured shorthold tenancy agreement.

1.3 This statement is submitted in support of the Claimant’s application to restore the possession claim pursuant to CPR 55.16(4)(b), following the adjournment of proceedings due to concerns raised about the compliance of the Claimant’s Section 21 notice with statutory requirements.

1.4 The Claimant asserts that the Section 21 notice is valid, the deposit is lawfully held, and the concerns raised regarding compliance are unfounded for the reasons set out below.

2. Background to the Tenancy
2.1 On [insert date, e.g., January 15, 2015], the Claimant and Defendant entered into a fixed-term assured shorthold tenancy agreement for the Property for a term of 12 months at a monthly rent of £1,075.

2.2 At the commencement of the tenancy, the Claimant collected a deposit of £1,600, which was lawfully taken at that time as there was no statutory cap on deposits.

2.3 The tenancy became a statutory periodic tenancy on [insert date, e.g., January 15, 2016], pursuant to Section 5 of the Housing Act 1988, when the fixed term expired.

2.4 The rent was subsequently increased to £1,200 in April 2019 with the Defendant's agreement, and then to £1,400 in [insert date, e.g., January 2022].

3. Deposit Compliance

3.1 The deposit has been continuously protected in [name of deposit protection scheme, e.g., DPS or TDS] since it was taken in 2015.

3.2 The prescribed information required under The Housing (Tenancy Deposits) (Prescribed Information) Order 2007 was provided to the Defendant at the start of the tenancy.

3.3 The Tenant Fees Act 2019, which introduced a cap of 5 weeks’ rent for deposits, does not apply to tenancies that became periodic before 1 June 2019.

3.4 As the tenancy became periodic in 2016, the deposit amount of £1,600 remains lawful. This position is supported by case law, including:

Switaj v McClenaghan [2024] EWCA Civ 1457, which confirmed that the Tenant Fees Act does not apply retrospectively to deposits collected before its commencement.

Superstrike Ltd v Rodrigues [2013] EWCA Civ 669, which clarified that a statutory periodic tenancy is a continuation of the original tenancy.

4. Section 21 Notice

4.1 On [insert date], the Claimant served a Section 21 notice on the Defendant, seeking possession of the Property.

4.2 The notice complied with all statutory requirements, including:

Service of the prescribed information regarding the deposit.

Provision of the How to Rent guide, gas safety certificate, and Energy Performance Certificate (EPC).

4.3 The Section 21 notice provided the Defendant with the required period of notice under the Housing Act 1988.

5. Procedural History

5.1 A possession claim was issued on [insert date].

5.2 The claim was adjourned on [insert date] due to concerns raised about the deposit’s compliance with the Tenant Fees Act 2019.

5.3 The Claimant asserts that the concerns were unfounded, as the deposit is lawful, the Section 21 notice is valid, and the claim should proceed.

6. Relief Sought

6.1 The Claimant respectfully seeks the following relief:

An order restoring the possession claim to the court’s list pursuant to CPR 55.16(4)(b).

A determination that the Section 21 notice served on [insert date] is valid and compliant with statutory requirements.

An order for possession of the Property in favour of the Claimant.

7. Statement of Truth

I believe that the facts stated in this statement of case are true.

Signed: ___________________________
[Your Full Name]

Date: ___________________________

Reply to the comment left by Neil Heffey at 13/01/2025 - 10:54
As others have pointed out the tenancy was not subject to the deposit cap.
Your subsequent advice makes matters worse for the OP!

Reply to the comment left by JUD KIRK at 14/01/2025 - 17:47Why that is the case?? As this matter needs to be defended and Neil has helped out to give guidance on defence. Courts do not simply accept that tenancy was not subject to deposit cap they like to see fully pleaded defence.

Reply to the comment left by Neil Heffey at 14/01/2025 - 11:12
Many thanks Neil.

Reply to the comment left by Neil Heffey at 14/01/2025 - 08:49
Superb