Multi-AST deposit penalty claim — advanced rent defence?

I am a private landlord defending a Housing Act 2004 tenancy deposit penalty claim in the County Court (Bromley). I am acting as a litigant in person. The claim is now potentially worth up to £14,400 across four ASTs using Superstrike v Rodrigues and Szorad v Kohli arguments. I have a strong defence, but I need to know if anyone has faced and won a similar situation.

The Facts are:

I let a flat in East London from November 2019 to February 2025 under five successive ASTs. In October 2019, I agreed with the tenant that instead of taking a deposit, I would take advance rent, as the tenant had shown low bank balances during referencing and could not afford to pay a deposit on top of the first month’s rent. My October 2019 email to the tenant specifically states: “The deposit will go towards your advance rental payment.”

In October 2021, at the start of the second AST, I proposed a deposit scheme in an email. The tenant replied the same day and described the arrangement differently — payments split in two halves alongside rent instalments in November and December, returned at the end if notice was served. The AST was signed four days later, headed the payment as “Advance” with no deposit clause. The payment was made five days before the contract was signed.

In December 2019 — two years before the alleged deposit — I sent the tenant a WhatsApp message saying: “I have not taken a deposit and you have shown clear funds in your account” and “I done you a favour in not taking the deposit.” The tenant replied, confirming this.

In March 2025, when the tenant vacated, he asked me to use the alleged deposit to pay the final month’s rent shortfall. The AST has a specific clause stating the deposit cannot be used to pay rent.

The final AST (November 2023 to November 2024) expressly records £2,400 as two months’ advance rent with no deposit clause whatsoever.

The tenant refers to the alleged deposit as £1,250 in his own emails — the claim is for £1,200.

The Claim:

The claim was issued under CPR Part 8 but has now been transferred to Part 7. The Claimants’ solicitors (no-win-no-fee, 25% of award) are running a Superstrike argument saying the penalty applies to each of four ASTs — potentially up to £14,400. They rely on Superstrike v Rodrigues [2013] and Szorad v Kohli [2023].

My Primary Defence — Johnson v Old [2013] EWCA Civ 415

Under the Court of Appeal decision in Johnson v Old [2013], the function of the payment determines its character — not the label. I rely on:

• My December 2019 WhatsApp admitting no deposit was taken — two years before the alleged deposit
  The tenant’s own October 2021 email describing advance rent payments split alongside rent instalments
  Payment made before the contract was signed — cannot be a deposit before the tenancy exists
  All ASTs headed the payment as Advance with no deposit clause
  The tenant asked to use the money to pay rent in March 2025 — prohibited by the AST if it was a deposit
  The final 2023 AST records £2,400 as two months advance rent explicitly

My Specific Questions:

Has anyone successfully argued that Superstrike cannot attach where the deposit characterisation itself is disputed — i.e. where the primary defence is that the payment was advance rent not a deposit? The Superstrike argument presupposes a deposit existed. If I win on advance rent, Superstrike collapses entirely — has any court confirmed this logic?

Has anyone faced a Szorad v Kohli multi-AST argument and defeated it using an advanced rent defence? Szorad appears to assume the deposit exists — has any court distinguished it where the deposit characterisation is disputed?

With the facts as described — particularly the December 2019 WhatsApp admission and the payment before contract — how strong is the advance rent argument under Johnson v Old? Does anyone have experience of similar facts succeeding at trial?

On track allocation — the Claimants say the claim exceeds £10,000 so Fast Track applies. My counterclaim is £6,222.30. If I win on the advance rent, the claim is worth zero. Is it appropriate for the court to allocate to Fast Track on a theoretical maximum value when the entire claim depends on a disputed characterisation that could reduce it to zero?

Has anyone used Okadigbo v Chan successfully to limit the penalty to 1x — and if so what facts were most persuasive?

Any experience, case references or practical advice gratefully received. I have a Case Management Conference likely coming up and need to understand whether anyone has successfully navigated this specific combination of arguments.

Many thanks

Simon