Limits on Striking Out an Appeal Notice Pre‑Permission and “Substantial Effect” Compliance for Tenancy Deposit Prescribed Information

1. Introduction

In Hamer v Levy [2026] EWCA Civ 662, the Court of Appeal (Baker LJ, Lewis LJ) considered a tenant’s attempt to resist an assured shorthold tenancy possession claim brought under section 21 Housing Act 1988 (noting it is now repealed by the Renters Rights Act 2026, but still relevant to legacy cases). The key dispute was whether defects in tenancy-deposit “prescribed information” prevented service of a valid section 21 notice, and whether a later solicitor’s letter could “cure” earlier non-compliance.

The appeal also raised an important procedural point: a circuit judge had struck out the tenant’s first appeal under CPR 52.28 (the judgment discusses the modern equivalent power in CPR 52.18), rather than refusing permission to appeal. The Court of Appeal held that approach was procedurally inappropriate, but ultimately immaterial because the possession outcome was correct.

The natural-person parties are referred to in this commentary as the tenant/appellant and the landlord/respondent.

2. Summary of the Judgment

  • The Court of Appeal extended time for the tenant’s appeal notice (delay partly explained by the unusual strike-out procedure).
  • The Court of Appeal held the circuit judge’s strike-out of an appeal notice pre-permission was “not the appropriate way to proceed” (paras 43–48), because the correct route is to decide permission and, if unmeritorious, refuse permission (and potentially certify totally without merit).
  • On the substantive deposit-compliance issue, the Court held that despite multiple errors in the documents, the information provided was “substantially to the same effect” as the prescribed requirements, and any earlier failure was capable of being remedied before service of the section 21 notice (paras 65–74).
  • The Court rejected the argument that section 48 Landlord and Tenant Act 1987 (address for service) can invalidate a section 21 notice; its consequences relate to rent liability, not the landlord’s ability to serve section 21 (para 64).
  • The Court granted permission (paras 4, 75) but dismissed the appeal (paras 4, 76).

3. Analysis

3.1 Precedents Cited

(A) Striking out an appeal notice: CPR 52.18 and “compelling reason”

  • Turner v Haworth Associates [2001] EWCA Civ 370
    Used to show the strike-out jurisdiction safeguards proceedings from abuse and can permit summary disposal (para 45). However, the Court of Appeal emphasised the modern permission-to-appeal regime largely removes the need to strike out pre-permission (paras 46–48).
  • Moses-Taiga v Oghenerume [2004] EWCA Civ 1399
    Cited as an example of post-permission (or post-commencement) strike-out being used where an appellant fails to comply with court orders (para 47).
  • Kanabar v Kanabar [2026] EWCA Civ 582
    Cited for the proposition that strike-out can be justified where there is a “compelling reason”, such as the absence of a legal personality able to pursue the appeal (para 47).

(B) Interpreting statutory notices and tolerating errors: the Mannai line

  • Mannai v Eagle [1997] AC 749
    The foundational principle: interpret notices as a reasonable recipient would understand them in context (para 58; applied via later authorities).
  • Pease v Carter & Anor [2020] EWCA Civ 175
    Arnold LJ’s structured summary (para 58) was treated as the governing approach: reasonable-recipient interpretation; then checking statutory purpose; and, where a prescribed form is involved, accepting “substantially to the same effect” compliance if statutory purpose is achieved (para 58).

(C) Tenancy deposit prescribed information: substantial compliance in context

  • Lowe v Governors of Sutton's Hospital in Charterhouse [2025] EWCA Civ 857
    Central to the outcome. The Court adopted Asplin LJ’s approach (paras 60–63) that the Mannai/Pease interpretive method applies to prescribed information, and that the statutory purpose (deposit safeguarding and dispute facilitation) can be achieved despite technical defects, including an unsigned certificate where the overall communication effectively certifies the information (para 65 in Lowe, quoted at para 63 here).
  • Ayannuga v Swindells [2012] EWCA Civ 1789
    Used (via Lowe) as a contrast: cases where the tenant is forced to conduct their own research to find key missing information are more likely to be non-compliant (para 62).

(D) First-instance authority mentioned

  • Siddeeq v Alaian 2024
    Raised by the tenant to suggest prescribed information provided before deposit payment is problematic; the circuit judge distinguished it on the facts (para 27). The Court of Appeal treated the key question as whether the later steps achieved “substantially the same effect” and cured non-compliance before section 21 (paras 66–74).

(E) Contextual procedural history

  • Hamer v Levy [2025] EWHC 3101 (KB)
    The High Court decision (Pepperall J) addressed the “destination of appeal” point: the strike-out was treated as a case management decision in hearing the appeal, meaning further challenge lay only to the Court of Appeal under the appellate routing rules (paras 30–31). This mattered because it explained the procedural detour and delay that the Court of Appeal later excused (para 34).

3.2 Legal Reasoning

(A) Second appeals and permission: why the Court still heard the merits

The Court emphasised the second-appeal filter in CPR 52.7(2) (para 33), but nonetheless heard full submissions because Snowden LJ had listed the permission hearing with the substantive appeal to follow (paras 2–3). This procedural choice allowed the Court to identify defects in the lower courts’ approach without remitting the case, because it could decide that any procedural irregularity made no difference to the inevitable substantive outcome (paras 49, 74).

(B) The Court’s guidance on strike-out pre-permission

The Court considered that, as a matter of proper appellate practice, where permission to appeal is required and has not been granted, an appellate judge who considers the proposed appeal hopeless should generally dispose of it through the permission regime (refusal of permission; and, if appropriate, certification as totally without merit), not strike-out (paras 47–48).

The Court acknowledged CPR 52.18 (discussed alongside earlier numbering) permits strike-out only for a “compelling reason” (para 44), but reasoned that the existence of an effective permission filter makes it hard to identify a “compelling reason” to strike out solely because the appeal lacks merit (para 48). A further practical concern was identified: a strike-out can generate a further permission route to the Court of Appeal, whereas refusal of permission by a circuit judge cannot (para 48).

(C) Tenancy deposit compliance: “substantially to the same effect” and cure under section 215(2)

The Court accepted multiple inaccuracies across the tenancy agreement, the email “Prescribed Information”, and the later solicitor’s letter (para 65), including: a one-digit phone error; an incorrect landlord address in the email document; a clause cross-reference typo; and the absence of a signed certificate (para 65).

The Court’s core holding was that the statutory test is not whether the documentation is flawless, but whether the information ultimately given is “substantially to the same effect” as required by the 2007 Order (para 66), assessed by reference to statutory purpose and the reasonable recipient context as explained in Pease and applied in Lowe (paras 58–63).

Crucially, the Court treated section 215(2) Housing Act 2004 as allowing a landlord to cure non-compliance by taking steps to comply with section 213(6)(a) before serving section 21 (para 67). Here, the landlord’s solicitors’ letter of 12 April 2024, sent before the section 21 notice, was treated as an effective curing step (paras 67–69, 73).

The tenant argued the tenancy agreement could not be used as the compliance vehicle because it was dated the day before the deposit was paid (para 52). The Court rejected this as determinative: the “reference back” to the agreement in 2024 could still satisfy section 215(2) (para 68), and the remaining defects were immaterial when interpreted through the reasonable-recipient lens and statutory purpose (paras 69–73).

(D) Section 48 Landlord and Tenant Act 1987 does not bar section 21

The Court held that a landlord’s failure to provide an address for service in England and Wales under section 48 affects rent and other sums becoming “not due” until compliance, but does not invalidate a section 21 notice (para 64). This confines section 48 to its statutory function and prevents it being used as a generalised defence to possession.

(E) Procedural unfairness arguments: no material injustice

The Court expressed misgivings about the possession hearing being listed away from the Housing Possession Court Duty Scheme day, the short time estimate, and the informal “conversation” approach adopted (paras 40–42). However, it concluded that even with fuller assistance and more time, the possession order would still have been made given the substantive legal position (para 74).

3.3 Impact

(A) Appellate case management: discouraging strike-out as a substitute for permission decisions

The judgment is a clear warning that CPR 52.18 strike-out should not be used simply to accelerate disposal of an unmeritorious permission-required appeal. The Court’s reasoning points to a disciplined separation between: (i) the permission filter (merits assessment), and (ii) strike-out (abuse/non-compliance/compelling reason scenarios). This is likely to be cited where appellate courts are invited to strike out before permission on the ground of “no prospect”.

(B) Deposit prescribed information: continued endorsement of contextual/substantial compliance

For legacy Housing Act 1988 section 21 litigation, the decision reinforces Lowe v Governors of Sutton's Hospital in Charterhouse: small factual errors and some formal defects (including signature/certification problems) may not defeat a landlord’s position if, read as a whole and in context, the tenant is given the essential information to protect the deposit and resolve disputes (paras 66–73).

(C) The “cure” pathway before section 21

The Court’s application of section 215(2) confirms that landlords (or their solicitors) can remedy earlier defects by supplying compliant (or substantially equivalent) information before serving section 21 (paras 67–69, 73). The case may encourage a practice of pre-notice “compliance audit” letters in older tenancies where paperwork is imperfect.

(D) Section 48 defences constrained

The rejection of the section 48 argument (para 64) discourages attempts to transform an address-for-service breach into an all-purpose bar to possession notices. It is a reminder that statutory consequences are generally limited to those Parliament provided.

4. Complex Concepts Simplified

“Prescribed information”
Specific information a landlord must give a tenant about the tenancy deposit scheme and the deposit, set out in the 2007 Order, to ensure the tenant knows where the deposit is protected and how disputes are resolved.
“Substantially to the same effect”
A tolerance concept: the document(s) need not be perfect, but must convey the required substance so the statutory purpose is met. Courts assess this by asking how a reasonable tenant would understand the information in context, and whether the tenant is practically equipped to use the deposit scheme and dispute mechanisms.
The Mannai principle
Notices are interpreted as a reasonable recipient would read them, not with pedantic literalism. Obvious mistakes may be disregarded if the intended meaning is clear.
Strike-out vs refusal of permission
Refusal of permission ends a permission-required appeal at the gateway stage. Strike-out is a stronger power reserved for “compelling” situations (e.g., abuse of process, inability to pursue, or serious non-compliance), and should not be used merely because the appeal lacks merit where permission is the correct filter.
Second appeal test (CPR 52.7(2))
A stricter threshold: beyond having merit, the appeal must raise an important point of principle/practice or there must be some other compelling reason to hear it.

5. Conclusion

Hamer v Levy [2026] EWCA Civ 662 delivers two practical messages. First, appellate courts should ordinarily use the permission regime—rather than strike-out—to dispose of unmeritorious permission-required appeals. Second, in legacy section 21 cases, tenancy-deposit prescribed information is judged through statutory purpose and “substantial effect”: technical defects (including some factual inaccuracies and signature problems) will not necessarily invalidate section 21 where, read in context, the tenant is effectively given the required information and any earlier deficiency is cured before notice is served.