[2025] EWHC 2477 (Ch)

Fecha: 02-Oct-2025

The undisputed facts

The undisputed facts

17.

The periods in respect of which the defendants paid their rent when they were not required to do so are agreed as follows:

Mrs Dawn Mitchell: between 15 December 2023 and 14 March 2024.

There is a dispute about whether Mrs Mitchell was also not required to pay rent between 14 March and 4 April 2024 by reason of a failure to give her an ECR in respect of the common parts of her building. We are not asked to decide that at this stage and it makes no difference to the points of principle considered in this judgment. This issue does not arise in relation to other defendants because there were no relevant common parts to their properties.

Mrs Mitchell was required to (and did) pay rent monthly in advance. She paid her rent for the period 1 to 31 December 2023 on 1 December 2023. Therefore, she paid it when she was under no mistake, because her right to withhold rent had not yet arisen; the ECR was not due until 15 December 2023. She subsequently paid rent on 1 January 2024 (for the period 1 to 31 January), and again on 1 February 2024 (for the period 1 to 29 February) and again on 1 March 2024 (for the period 1 to 31 March 2024). She was given her ECR on or about 14 March 2024.

An ECR in respect of Mrs Mitchell’s flat was signed off on 2 September 2019. An ECR in respect of the common parts of her building had been obtained on 26 July 2019. The date by which the ECR should have been given to her was 15 December 2023. It was, therefore, available to be given to her on that date, although it was not, in fact, given to her at that time; it was merely available.

Mrs Mitchell first became aware that her landlord was required to give her an ECR on 19 March 2024. The landlord had realised this before she did and an ECR in respect of her flat had already been posted to her on or about 12 March 2024. She received it on or about 14 March 2024, as we have said. The ECR in respect of the common parts was given to her by 4 April 2024.

ii)

Ms Helen Jones: between 15 December 2023 and 13 March 2024.

Ms Jones was required to pay rent weekly and in advance, every Monday. However, in the relevant period between 15 December 2023 and 13 March 2024 she paid monthly, we assume in advance, at the rate of £412 per month, which she paid on 15 December 2023 (the day she was first entitled to be given the ECR) and again on 15 January 2024, 15 February, and 15 March 2024 (by which time the ECR had already been given to her, on or about 13 March).

An inspection was carried out on or about 18 March 2021, which resulted in an ECR in respect of Ms Jones’ property. The date by which it should have been given to her was 15 December 2023. It was, therefore, available to be given to her on that date, although it was not given to her.

Ms Jones first became aware that her landlord was required to give her an ECR on 11 March 2024. It was posted to her on or about 11 March 2024 (that is, on the same day that she was aware of her right to it) and she received it in the post on or about 13 March 2024.

iii)

Mr Wadley: between 15 December 2023 and 25 March 2024.

Mr Wadley was required to (and did) pay rent weekly and in advance, every Monday. However, in the relevant period between 15 December 2023 and 24 March 2024 he paid monthly, we assume in advance, at the rate of £538.92, which he paid on 2 January, 1 February, 1 March and 2 April 2024. He had presumably, therefore, paid rent in advance on or about 1 December 2023 as well, although we have not been given details of payments before 15 December.

Mr Wadley’s landlord obtained an ECR in respect of his property on or about 25 May 2023. The date by which it should have been given to him was 15 December 2023. It could have been given to him immediately on request, therefore, although it was not in fact given to him.

Mr Wadley first became aware that his landlord was required to give him an ECR on 26 March 2024. It was posted to him in the week ending 22 March and he received it by 25 March 2024, before he had even asked for it.

18.

Since becoming aware of their rights, neither Mrs Mitchell nor Ms Jones have withheld any rent on account of the past breach by their landlords. They continued to pay their rent in full, both before and after the First Judgment, and have continued to do so to date.

19.

Mr Wadley did not withhold rent either, until February 2025, when, for that month only, he withheld rent in the sum of £586.65, which remains in arrears. He did this “in full agreement with the Claimant and purely in order that the Defendant can establish a debt for the purposes of his claim” (Agreed Fact 15(e)). His landlords wanted him to do it, because they wanted to create a debt from him to them “for the purpose of ventilating the arguments in this claim” (Claimants’ skeleton argument para 6), namely the argument about whether he might be entitled to withhold rent after the period of breach by way of set-off against a counterclaim for repayment of rent that was paid when it was not required to be paid. But after February 2025, he resumed payment of his rent in full. That is notwithstanding the fact that the total value of his counterclaim is £1,789.72 (Agreed Fact 22.a.), which is more than the rent he has withheld.