Dec Newsflash.. NAYPIC WANTS TO MEET WITH PRIME MINISTER.. PANORAMA HELPS GET ANSWERS FROM RSA... WE WON A COURT VICTORY THIS WEEK...
The police from Hammersmith want to talk to us about the
case of Carol Cazier who was killed whilst Mary Moss (AKA Jo Gavin
& Jo Flores) was caseworker.
We said no. We will talk to the Government.
Message to the Prime Minister sent on Thursday 6th Dec 2012
Sergeant Townly of the Met Police wishes to speak with me regarding
historic issues of child abuse currently in the news concerning Carol
Cazier and some M.P.s. I told them that I as the ex-worker in the case
would prefer to meet with the PM or a senior Cabinet Minister to discuss
these matters as I was an advocate for children not a case worker
alone. These were sensitive matters subject
to confidentiality and would be best deal with at more senior levels
than simply being questioned by police who at the time were involved.
I hope you appreciate that NAYPIC would need some resources to deal with these matters again.
020 7837 6680
I am available today.
are finding TV coverage of the people being exposed.. a bit
suspicious.. it is throwing people off the scent.. by arresting or
questioning possibly innocent people first, this leaves much scope for
the real abusers in this type of crime to say.. they too are innocent
and this is a witch hunt!
The FACT is child abuse was a money
making industry for many years!!!! There were some big names and other
making a lot of money, millions. Since the explosion of the internet
there is no more money to be made in this type of crime... so the old
organizers are out of the business.. some are still alive and others
The child abuse industry is dead and that is the
message that is important to put out there and if it means showing up
the real organizers a bit like war that is over and the war crimes are
exposed then that sends a positive message out to society that society
wants this finished and will try the crimes so the victims can rise up
and finally heal!
The programme Panorama have been in touch
with us, the guy Alistair Jackson who is responsible for the other side
programme in exposing Jimmy Savile.
Alistair has been helping us too
in exposing the Insurance Companies who have only funded one side of
the legal battle of our shops even though we are both policy holders.
many thanks to Alistair he sent this on Thursday to Royal & Sun
Alliance (excess liability insurers to our UKU policy) Press Office.
Let's hope RSA and UKU finally feel shame for stopping the excellent work of NNYP for 5 years in court and
we get the 2.2 Million pounds claim owed for loss of opportunity!
WANT THIS SETTLED BEFORE CHRISTMAS!!!!! We have always said in the case
that our work is important and now in 2012 it is finally showing but we
have the solutions and not just the agony of abuse... The timing is of
all this is Divine JUSTICE the universe working!
was in the High Court last Tuesday when the above case was heard. I am
researching the issues emerging out of the case and would be grateful if
you are able to provide guidance as to RSA's position regarding it.
In summary I would like to know
Why have Royal Sun Alliance funded the landlord's legal costs despite
the tenant ( Ms Flores) also being a signatory to the policy?
· Why was the tenants costs arising from the flooding not met by her insurers in this case?
· Now that Ms Flores has been given leave to appeal does RSA still intend to fund her
landlord's counter claim?
· To what extent is the charitable
work of legal opponents to RSA funded legal actions taken into account
when deciding whether to settle claims or not?
· To what extent
are RSA concerned that its support for this legal action is hindering
the work of a charity involved in child protection?
Regards and thanks
To The Assistance of Jan Luba QC of Garden Court Chambers We won on all
grounds of appeal on Tues 4th Dec 12 (except 8,9,10 so we somehow lost
This was a an amazing turn around in legal terms.. since in Sept 2010 we lost everything and got charged £400,000 costs..
The Appeal is soon.
We will need more representation so fingers crossed that the wonderful assistance of the Pro Bono Unit who enlisted the
services of Jan Luba QC after we had not
had any legal representation for 5 years HELPS US AGAIN as they both helped to turn this injustice around for us...
Honor Judge Lord Justice Ward said, " Ms Jo Flores (Jo Gavin) may be
many things but she is not a landlords and tenants lawyer' to which to
Although this is true we had the balls to keep
fighting and we won on all grounds so one for the the 'David' in a David
and Goliath battle of 5 years stopping us doing our most important and
artistic work to create that ever important and especially now
INDEPENDENT Youth Economy!
AMENDED GROUNDS OF APPEAL
These Grounds stand in complete substitution for the Grounds
filed and served with the Appellant's Notice.
1. The judge misdirected himself in law as to the extent of a landlord's liability
for damage caused to demised premises by a defect in another part of same
building which is retained under the ownership and control of the landlord. He
ought to have directed himself that the landlord was liable to the tenant for all
loss caused by the defect and not simply for such loss as is suffered after the
landlord has had knowledge of the defect and a reasonable opportunity to
remedy the defect.
2. The judge misdirected himself in law as to the landlord's liability for disrepair
under the leases held by the tenants in this case. He ought to have held that the
tenants' obligations to repair, in respect of the demised premises, were
matched by a correlative implied obligation on the landlord to keep in repair,
at all times: (1) the parts of the building retained in its ownership and control,
defects in which may affect the demised premises; and/or (2) such parts of the
building as might, if defective, lead to the occurrence of damage covered by
an insured risk.
3. The judge erred in holding that, notwithstanding the facts as found by him,
conditions in the demised premises did not give rise to the operation of the
‘cesser of rent' provisions in the leases in this case.
4. As a consequence of all or any of the errors of law in Grounds 1-3 above, the
judge seriously under-assessed the damages recoverable by the tenants for
breach of the landlord's obligations and over-assessed their liability to pay
5. Further, even if the judge had correctly directed himself as to liability, he was
wrong to assess damages at only £100 given the findings of fact he had made
as to the harm caused to the demised premises and the purposes for which
those premises were bring used.
6. The judge was wrong to hold that the leases had been lawfully forfeit by reentry
in October 2008. Had he not made all or any of the errors identified
Grounds 1-5 above, he would have found that the tenants did not, at the date
or re-entry, owe the landlord any rent.
7. The judge was wrong, in those circumstances, to hold that the tenants were
liable to the landlord for mesne profits. He ought to have held that, subject to
abatement in respect of the period during which they were unlawfully evicted,
the tenants were only subject to an obligation to pay the actual rent reserved
by the leases.
Relief from Forfeiture
8. The judge was wrong to hold that he had no jurisdiction to consider whether
relief from forfeiture should be granted. Although no formal application for
relief had been pleaded, the judge had previously given a judgment in the
same proceedings treating his court as seized of such an application and it was
unfair of him to resile from that and to deny jurisdiction.
9. The judge was wrong not to grant relief from
forfeiture of either or both
leases. On the unusual facts of the case before him, the judge ought to have
granted such relief, even if the tenants could not immediately pay the accrued
rent in compliance with the usual terms.
10. Having extended the tenants' time to appeal from his orders, the judge was
wrong not to have stayed his order for possession until the appeal court could
be seized of such an appeal. He ought to have directed himself that a refusal of
a stay would lead to the landlord immediately recovering possession (as it did)
and would thereby disable the tenants from trading and thus from effectively
financing and pursuing an appeal (as it did).
11. Even if the judge did not err in any other respect, he was wrong to use the
exceptional power to order the tenants to pay the entire costs of the
proceedings assessed on an indemnity basis when, inter alia, (1) the tenants'
claim had succeeded in part and (2) the tenants has been self-represented
during the bulk of the proceedings and had only conducted themselves in a
manner common to many reasonable self-represented litigants.
12. The judge was wrong to order the tenants to pay the reserved costs of all the
interlocutory applications, most particularly where (1) the tenants had
succeeded in their application to be restored to possession pending trial and (2)
the landlord had later failed in an application to secure possession of one of
the demised premises prior to trial.
Jan Luba QC
16 November 2012
Appeal No: B5/2010/2396
IN THE COURT OF APPEAL
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
For hearing on 4 December 2012
Claim No: CHY09015
B E T W E E N:
JO GAVIN (now JO FLORES)
ADVOCATES' STATEMENT ON BEHALF
OF THE FIRST APPELLANT
Pursuant to CPR PD52C para 16
Prepared by Jan Luba QC
19 November 2012
All page references are to the (replacement) Appeal Bundle
filed on 16 November 2012
1. This appeal arises from litigation between landlord and tenant in respect of
leases of two small commercial properties situate in adjoining premises in
Cromer Street, London WC1. The Appellants are the tenants (and are referred
to as such in this Statement). The Respondent is the landlord (and is referred
to as such in this Statement).
2. Both leases are of the ground floor and basement areas of multi-storey
buildings. The lease of No.104 was taken in the sole name of Ms Jo Flores
(the first Appellant, formerly known as Ms Jo Gavin) for a term of 6 years
from June 2000 to June 2006.1 When that lease expired, the first Appellant
continued in occupation and held over. The premises were used as an art
gallery (trading name “Scarlet Maguire”).
3. The lease of Nos. 106-108 was taken in the joint names of Ms Flores and Ms
Cracy, the second Appellant, for the term from 17 March 20052 to 7 April
2014. 3 The term has yet to expire. The premises were used as a
multifunctional space available to hire, for displays, etc (trading name
4. Both leases were subject to the provisions of Part II of the Landlord & Tenant
5. Put very shortly, problems arose with the condition of the two leased
properties in terms of disrepair and flooding, arising from defects in parts of
the building which had not been demised but which remained in the
ownership and control.
6. These problems adversely affected the tenants' businesses and in consequence
their cash flow. Claims made by them on the buildings insurance policies
(held by the landlord but paid for by the tenants pursuant to the terms of the
leases4) did not result in swift or sufficient recompense. The tenants believed
that their inability to trade from the premises (as they had become unfit for
trade) relieved them of liability for some or all of the rent, given the terms of
the leases relating to cesser of rent when the whole or part was rendered unfit.5
7. On 29 October 2008 the landlord purported to forfeit the leases, by re-entry by
their bailiffs, for late payment of rent.6
1 That lease is at p79
2 There had been an earlier lease from 2004-2005.
3 That lease is at p113
4 Clauses 5(3)(a) and 7(2) of the leases
5 Clause 6(3) of the leases
6 The Notices
of re-entry are at pp145-146
The history of the litigation (in short summary only)
8. On 4 November 2008 the tenants obtained a without-notice injunction7 in the
High Court (Wilkie J) restoring them to occupation.
9. On the return day of the injunction, 14 November 2008, the Judge
(Christopher Clarke J) gave a short judgment, indicating that the points
relating to the provisions of the lease as to cesser of rent were arguable and
that on the balance of convenience the tenants should remain in occupation.8
Cross-undertakings were given which left the tenants in possession pending
the issue and trial of legal proceedings, to be commenced by the tenants.9
10. As required by their undertakings, in December 2008 the tenants began a
claim for damages in the High Court arising out of the condition of the
premises and for the losses they claimed they had suffered.10 They also made a
damages for unlawful eviction in relation to the re-entry.11 The claim
was transferred to the Central London County Court.12
11. By its Defence, the landlord disputed any liability for the adverse conditions in
the premises and claimed that the leases had both been forfeit by re-entry. By
a counterclaim, it sought damages for wrongful occupation since termination
of the leases.13 There was a Reply and Defence to Counterclaim.14
12. The landlord applied to be released from its undertaking to leave the tenants in
occupation of No.104.15 It did so because the lease had expired, it had given
notice pursuant to section 25 of the 1954 Act16 and it contended there had
been no application for a new lease.17 That application was adjourned (with
liberty to restore) and HHJ Cowell fixed a case management conference
(CMC) in the main proceedings.18 The application was restored and heard at
7 See pp147-150
8 The Transcript of Judgment is at pp26-33
9 The Order and Undertakings are at pp151-153
10 Claim Form at p154
11 Particulars of Claim at p156
12 Transfer Order at p170
13 Defence & Counterclaim at pp171-192
14 Reply to Defence and Defence to Counterclaim at pp193-204
15 Application Notice pp205-207
16 Notice at p464
17 The correspondence relating to that issue is (in part) at pp471-476
18 Order at pp208-210
the CMC but did not succeed. The judge gave a short judgment addressing it19
and also gave directions for trial.20 He gave reasons for refusing the landlord's
application for permission to appeal.21
13. At a pre-trial review in February 2010, the tenants gave notice of their
intention to apply to amend the Particulars of Claim and an application notice
was filed to that effect.22 At a subsequent hearing, the application was only
allowed23 to the extent of
permitting three short paragraphs to be added24 but
the Schedules25 which had been annexed to the draft Amended Particulars
were later utilised in the proceedings. A trial was fixed for July 2010 with a
time estimate of 10 days.
14. In June 2010 the landlord issued a claim for possession of No.10426 on the
basis that, even if the lease had not been forfeit, the term had expired without
service of a claim for a new lease.27 The landlord applied for the possession
claim to be considered at the trial of the tenants' claim.28
15. The claim and counterclaim were tried together over two weeks in July 2010.
Both parties had put in Skeleton Arguments for trial.29 The tenants were selfrepresenting.
The landlord was represented by Leading Counsel. Numerous
witnesses were called and examined and the documents adduced for trial
extended over many volumes of lever arch files. There was only sufficient
for the evidence to be heard. Both sides put written closing submissions
to the judge in August (landlord) 30 and September 2010 (tenants) 31
16. The judge gave judgment (in a series of separate judgments and rulings) in
17. First, on 9 September 2009 he delivered a judgment on liability, relating to the
19 The Transcript of Judgment is at pp34-38
20 Order at pp216-218
21 Reasons at pp219-220
22 Application Notice at pp223-224
23 Order at pp225-227
24 Reproduced at pp228-229
25 Schedules at pp230-243
26 Claim form for possession at pp246-247
27 Particulars of Claim at pp248-253
28 Application Notice at pp254-256
29 Tenants' Skeleton Argument at p257, Landlord's Skeleton Argument at p266
30 Defendant's Submissions at p301
31 Claimants' Submissions at p348
condition of the premises.32 Under that judgment, the tenants had succeeded
only one small aspect of their claims. They invited the judge to defer
submissions and judgment on quantum, possession and costs (scheduled to be
considered on 20-23 September 2010) until the outcome of an appeal on
liability. Both parties made written submissions33 on that invitation which, in
the event, the judge declined.
18. At the resumed hearing on 20 September 2010 the judge gave a judgment on
quantum on the respective money claims i.e. the tenants' claim for damages
(£100 awarded) and the landlord's claim for mesne profits (over £37,000
19. The judge had, however, realised by 20 September 2010 that in preparing his
judgment on liability he had not read or considered the tenants' extensive
post-trial written submissions.35 He made a statement in open court to that
effect on 20 September 2010 and adjourned to read the submissions and
prepare a supplementary judgment. That
supplementary judgment, addressing
the earlier written submissions, was then delivered on 22 September 2010.36
20. Finally, on 22 September 2010 the judge gave a composite judgment as to
forfeiture (which he found established), relief from forfeiture (which he
refused), possession (which he granted), an extension of time to appeal (which
he granted), a stay (which he refused) and costs (which he awarded against the
tenants on an indemnity basis in respect of the whole proceedings).37
21. The judge's Order, concluding the litigation, reflected the several judgments
given and provided for the tenants to pay substantial interest on the award of
mesne profits and for an interim payment on account of costs in the sum of
£225,000 against a Schedule of Costs of over £330,000.38 The judge refused
permission to appeal.39
22. The outcome was calamitous for the tenants. In the absence of any stay, the
forthwith possession order was executed immediately (at dawn the following
morning) and they were put out of the premises. Their total liability for
32 Transcript of Judgment at pp39-63
33 Landlord's submissions at p440, Tenant's Submissions at p441
34 Transcript of that Judgment at pp64-68
35 His explanation as to how that arose is at pp7-8
36 Transcript of that Judgment at pp70-74
37 Transcript of Judgment at pp75-78
38 Order at pp2-4
39 Reasons at pp5-6
damages and costs runs into tens of thousands of pounds, if not hundreds of
thousands of pounds. The tenants have lost their business premises and face
23. The tenants lodged their Appellant's Notice on 13 October 2010. 40 They
sought the setting aside of the Judge's order and a stay of execution.
24. Thereafter the progress of the appeal became bogged-down for more than 12
happened because of communication difficulties between Ms
Flores and the Civil Appeals Office and because of problems in securing
transcripts of the judgments and of the trial proceedings in the County Court
(which this Court had ordered to be provided at public expense).
25. Acting on such material as was available by February 2012, which primarily
consisted of the landlord's solicitors notes of the judgment, Lord Justice Jacob
refused permission to appeal on the papers.41
26. The First Appellant exercised her right to renew the permission application
and it came before Lord Justice Ward on 10 May 2012. He was addressed by
Ms Flores. The papers were, by then, in a wholly unsatisfactory state.
27. Lord Justice Ward ordered that the hearing of the renewed application for
permission and a stay be adjourned on notice and that the papers be brought
into order. His Order directed the Appellant to
the Bar Pro Bono Unit (‘the
28. Correspondence conducted between the Unit's volunteer adviser and the Civil
Appeals Office during September 2012 and October 2012 unblocked the logjam
and produced the transcripts which had been long awaited. The last of
them was provided in October 2012.
29. The Unit subsequently authorised its volunteer to assemble a fresh Appeal
Bundle, prepare this Advocate's Statement, and appear for the First Appellant
at the resumed hearing of the renewed application for permission and a stay.
40 N161 at p9
41 Order at p21
42 Order at p22
30. No doubt in the hope that the involvement of the Respondent in the appeal
might trigger the production of manageable documentation and the assistance
of a legal representative, Lord Justice Ward had directed that the resumed
hearing be on notice to the Respondent. However, the Respondent has
to this Court that, while intending no disrespect, it does not intend to
be present or represented at the resumed hearing.43 Nevertheless it has been
provided with a copy of this Statement, a copy of the proposed Amended
Grounds (see below) and a copy of the index to the new Appeal Bundle.
31. Although the Second Appellant has been content to leave the conduct of the
appeal to the First Appellant, she has also been provided with a copy of this
Statement and a copy of the proposed Amended Grounds (see below).
The Grounds of Appeal
32. There are presently three Grounds of Appeal, settled by the tenants as selfrepresented
33. The first is that (in summary) there had been a breach of natural justice and/or
Article 6, in that: the county court had failed to ensure an ‘equality of arms';
the case management leading to the trial was unfair; and the trial itself was
Particular emphasis was placed on the judge's oversight of the tenants'
written submissions (see above at ). This ground was addressed in robust
terms by Lord Justice Jacob in paragraph 4 of his Order and is not pursued
34. The second ground is directed to the correctness (or otherwise) of the judge's
approach to the landlord's legal liability in respect of the damage to the
premises. It is respectfully suggested that permission be given for it to be
recast in the alternative language of Grounds 1 – 3 of the Amended Grounds
of Appeal (see below).
35. The third ground asserts that the judge misrepresented and misunderstood the
events which had taken place since the grant of the injunction (and the
undertakings) restoring the tenants to the premises and thereafter up to the
date of judgment. This ground was addressed by Lord Justice Jacob in
paragraph 5 of his Order and is not
43 Letter at p23
44 Grounds at pp17-20
Application to rely on the Amended Grounds of Appeal
36. The First Appellant (acting for herself and the Second Appellant) seeks the
permission of this Court to amend the Grounds of Appeal. She has not made a
formal application but will file an Application Notice and seek exemption
from payment of the fee if this Court considers that requiring a formal
application is necessary and proportionate.
37. The application is made very late and represents a very significant re-casting
of the basis and scope of the appeal. Nevertheless, this Court is invited to
allow the amendment because: (1) it enables the Court and the parties to focus
on the real issues in the appeal; (2) the Appellants have only recently been
provided with the transcripts of the judgments which explain the Order under
appeal and enable them to address the judge's
reasoning; and (3) they have
only recently been able to secure the further services of the Unit.
The Amended Grounds of Appeal
38. The Amended Grounds of Appeal 45 are here dealt with briefly, given the
already unusual length of this Advocate's Statement. It is respectfully
suggested that (if permission to appeal is given) there might be a direction for
preparation and service of a full Skeleton Argument by both parties, well
ahead of the appeal hearing.
39. The Amended Grounds are dealt with under the following headings.
40. The tenants cannot, and do not, seek to go behind the judge's relevant findings
of fact as to the extent of the damage done to their premises or as to the cause
of that damage. The judge found that, at a minimum, the tenants “had suffered
from at least four instances of ingress of water, including on two occasions
foul water and sewage, between April
2004 and June 2005”46 and that “I
cannot believe that many basements have quite the degree of damp problems
that this one has”.47
45 Amended Grounds of Appeal at p24
46 Transcript of Judgment p40 para 
47 Transcript of Judgment p67 para 
41. Grounds 1, 2 and 3 address the judge's self-directions on law in relation to the
liability of the landlord for the damage that was caused to the tenants'
42. The judge was not helped as to the relevant law by the facts that (1) the
tenants were unrepresented, (1) the Particulars of Claim, albeit settled by
counsel, made it “extraordinarily difficult to ascertain from those particulars
what the causes of action were”48 and the judge was “concerned about the
failure to allocate particular sets of facts to allegations of negligence or other
breaches of duty which has bedevilled this case and made it difficult to try”49
and (3) the judge had himself earlier refused the tenants' application for
permission to amend the Particulars of Claim to bring them into good order.
43. Against that background, the judge had to determine and apply the relevant
law for himself. He correctly found that the leases imposed no express
repairing obligations on the landlord in respect of the demised premises but
did require the tenants to keep them clean, in repair and decorated.50
44. But he also found as fact that, in relation to each of the most significant
incidents of damage to the demised premises, the source was a defect in the
parts of the buildings retained in the ownership and control of the landlord (i.e.
the soil stack pipes which leaked51 and the pavement lights which leaked52).
45. Ground 1 of the Amended Grounds of Appeal is that:
The judge misdirected himself in law as to the extent of a landlord's
damage caused to demised premises by a defect in another
part of same building which is retained under the ownership and
control of the landlord. He ought to have directed himself that the
landlord was liable to the tenant for all loss caused by the defect and
not simply for such loss as is suffered after the landlord has had
knowledge of the defect and a reasonable opportunity to remedy the
46. The judge's error was to hold that the landlord's only duty was to repair the
48 Transcript of Judgment p40 para 
49 Transcript of Judgment pp47-48 para 
50 Lease, clause 5((6) at p93 and p126
51 Transcript of Judgment p43 para 
52 Transcript of Judgment pp42-43 para  and 
defect in the retained premises “as soon as reasonably practicable after he
knows it is causing damage to [the demised premises]”.53 With respect that
cannot be the law. If it were, a landlord
could let premises encapsulated within
a building, of which he otherwise retained ownership and control, and let
those parts fall to ruin. Even if the defects in the other parts frequently caused
damage to the demised premises, his only duty would be to attend to the
specific item of repair and prevent it causing further damage. If it re-occurred,
or another defect caused damage in the demised premises, the landlord would
again not be liable in damages provided the defect was rectified reasonably
quickly after his having notice of it.
47. It is not impossible to imagine cases (and this case may be a paradigm) in
which a series of defects, each in turn repaired reasonably promptly by the
landlord, successively causes such damage to the demised premises that they
are rendered worthless but in respect of which loss of use or value the landlord
(by prompt after-the-event repairs in each case) escapes
48. The judge ought to have used the ‘duty' he identified in Duke of Westminster v
Guild  QB 688 as a basis for holding that the liability of such a landlord
arises as soon as the defect in the part retained by him causes damage to the
49. The judge seems to have imported requirements that, before any liability can
arise, there must be: (1) knowledge or notice of a need for repair on the part
of the landlord; and (2) a reasonable opportunity for repairs to be carried out.
That puts the tenant of ‘enveloped' premises in a seriously vulnerable
50. The correct approach would be to hold that the landlord is usually absolutely
liable if a defect in the non-demised premises causes damage to the premises
demised. That would put the landlord subject to the Guild duty in no different
position from any other landlord who owes a duty to keep defects in
parts from damaging the demise. As Carnwath LJ (as he then was) said in
Earle v Charalambous  EWCA Civ 1090:54
“In applying a standard lessor's repairing covenant, the law draws a
distinction between disrepair in the demised premises themselves, and
disrepair in other parts of the building within the lessor's control. In
53 Transcript of Judgment p47 para 
54 At 
the latter case the "general rule" applies: that is, the covenant requires
the lessor to keep the premises in repair at all times, and he is in
breach immediately a defect occurs (British Telecommunications plc
v Sun Life plc  Ch 69).”
51. Ground 2 of the Amended Grounds of Appeal is that:
The judge misdirected himself in law as to the landlord's liability for
disrepair under the leases held by the tenants in this case. He ought to
have held that the tenants' obligations to repair, in respect
demised premises, were matched by a correlative implied obligation
on the landlord to keep in repair, at all times: (1) the parts of the
building retained in its ownership and control, defects in which may
affect the demised premises; and/or (2) such parts of the building as
might, if defective, lead to the occurrence of damage covered by an
52. The judge was taken to the leading authority on correlative implied
obligations, Barratt v Lounova (1982) Ltd  1 QB 348, and referred to it
in his judgment.55 The instant case was an a fortiori case for the application of
a correlative and absolute obligation on the landlord to keep in repair the
controlled and retained parts of the building containing the demised premises.
That is because: (1) the retained parts enveloped the demised premises or (in
the case of the pipework) passed through them; and (2) in addition to being
obliged by the leases to repair the demised premises the tenants were required
to meet the cost of insuring the premises against such damage as might arise if
defects in the retained premises caused damage in the demised premises.
53. Although the judge was plainly alerted to these propositions, he failed to apply
them, without any cogent explanation as to why he did not do so.56
54. He appears to have held that the tenants were in some way put in difficulty by
the principle of caveat lessee. But that principle could not avail the landlord
when the relevant defect was in the retained, rather than in the demised, parts
of the building.57
55. Ground 3 of the Amended Grounds of Appeal is that:
55 Transcript of Judgment p45 para 
56 Transcript of Judgment pp44-45 para 
57 Transcript of Judgment pp58-59 para  –
The judge erred in holding that, notwithstanding the
facts as found by
him, conditions in the demised premises did not give rise to the
operation of the ‘cesser of rent' provisions in the leases in this case.
56. The central thrust of the tenants' case had been that the recurrence of episodes
of damage to the premises had caused them to become in whole or part unfit
for use (the relevant uses being as galleries and exhibition spaces) and that the
cesser of rent clauses in the leases58 had accordingly been triggered.
57. It will be recalled that Christopher Clarke J had found this point well arguable.
The trial judge himself found that, inter alia, that there had been at least four
leaks into the demised premises in a 14 month period, some of foul water and
sewage. At one point the “smell was really bad in 106-108”59 and the judge
found that the recurrence of repeated ingress of water must have been “quite
enough to daunt the bravest of
58. Yet, on those findings, he held that the cesser of rent provisions were never
triggered. The relevant passage of his judgment does not provide reasons but
appears to proceed on the basis that the provisions only apply when the
premises are “wholly unfit”. That statement is made even though the clauses
refer to “…any part…” of the demised premises.61 On the facts he found, the
judge was therefore wrong to hold that the cesser of rent clauses had never
59. Grounds 4 and 5 are concerned with the quantum awarded on the tenants'
claims for damages.
60. Ground 4 of the Amended Grounds of Appeal is that:
As a consequence of all or any of the errors of law in Grounds 1-3
above, the judge seriously under-assessed the damages recoverable by
the tenants for breach of the landlord's obligations and over-assessed
58 Clause 6(3) at p107 and
59 Transcript of Judgment p55 para 
60 Transcript of Judgment p40 para 
61 Transcript of Judgment p44 para 
their liability to pay rent.
61. The Ground is obviously only in play if the judge did err on liability. But if he
did, quantum must necessarily be significantly affected and would be
62. Ground 5 of the Amended Grounds of Appeal is that:
Further, even if the judge had correctly directed himself as to liability,
he was wrong to assess damages at only £100 given the findings of fact
he had made as to the harm caused to the demised premises and the
purposes for which those premises were being used.
63. The assessment of damages at £100 is extraordinary on the judge's own
findings of fact (not least that at one point the “smell was really bad in 106-
108”62 and the recurrence of repeated ingress of water must have been “quite
enough to daunt the bravest of spirits”63). In his judgment on quantum,64 the
judge approached the assessment at a simple matter of looking at the lost
income for bookings during the exact three week period when he found that
the premises could not be used for display/hire. Such approach takes no
sensible account of the impact on the tenants' ability to attract customers, to
display their art or hire the exhibition area, of the fact that the premises
recurrently had a foul or damp smell and/or were damp as a result of ingress of
water, foul water or sewage.
64. Further, on the judge's own findings, the tenants had had to make repeated
claims on the insurance policy.65 In relation to each claim there had been a
£100 excess. That excess was a loss which they suffered by reason of the
landlord's default and for which they were awarded no damages.
Forfeiture & Possession
65. For the
tenants, the retention of the leases was a critical issue at trial. They had
paid the rent due throughout the difficulties experienced right up to 2009.
Although significant rent arrears had accrued by the date of trial, it had been
their intention to set-off part of the damages awarded on their claims in
62 Transcript of Judgment p55 para 
63 Transcript of Judgment p40 para 
64 Transcript of Judgment p65 para  – 
65 A sample policy is at p442.
satisfaction of that and any past rent liability.
66. Ground 6 of the Amended Grounds of Appeal is that:
The judge was wrong to hold that the leases had been lawfully forfeit
by re-entry in October 2008. Had he not made all or any of the errors
identified in Grounds 1-5 above, he would have found that the tenants
did not, at the date or re-entry, owe the landlord any rent.
67. In essence, the tenants' case was that even if the
rent due in October 2008 had
strictly been paid some days late, the level of the rent arrears on the basis of
which the landlord took possession were modest and would have been easily
met by a set-off of the unliquidated damages which had by then accrued in the
68. The judge dealt with the issue of forfeiture very shortly.66 He did not identify
the sum owing at re-entry. He acknowledged that the arrears might have been
extinguished by the set-off of the damages he awarded. However, due to his
own rulings on liability and quantum (addressed in Grounds 1 to 5 above) the
figure available to set-off was wrongly fixed too low.
69. Ground 7 of the Amended Grounds of Appeal is that:
The judge was wrong, in those circumstances, to hold that the tenants
were liable to the landlord for mesne profits. He ought to have held
that, subject to abatement in respect of the period during which
were unlawfully evicted, the tenants were only subject to an obligation
to pay the actual rent reserved by the leases.
70. It must follow that, if the damages had been correctly assessed at a sum
greater than the notional arrear of rent, a set-off would have extinguished
those rent arrears. In that eventuality the leases would not have been forfeit
and the re-entry would have been (as the tenants contended it had been) an
unlawful trespass and eviction. That would have had the consequence that (1)
the tenants were entitled to recompense for the fact of their exclusion and the
loss flowing from it and (2) were not liable for mesne profits but only for rent
from the date of reinstatement.
66 Transcript of Judgment p76 para 
Relief from Forfeiture
71. The judge directed himself that he had no jurisdiction to grant relief from
forfeiture but also that, assuming he had
jurisdiction, it would not be right that
it be exercised.67 He was wrong on both accounts.
72. Ground 8 of the Amended Grounds of appeal is that:
The judge was wrong to hold that he had no jurisdiction to consider
whether relief from forfeiture should be granted. Although no formal
application for relief had been pleaded, the judge had previously given
a judgment in the same proceedings treating his court as seized of such
an application and it was unfair of him to resile from that and to deny
73. The question of relief from forfeiture had arisen during the Case Management
Conference in these proceedings in August 2009. In his judgment arising from
that CMC, the judge said that although no formal application had been made
he “ought to treat as pending” an application for relief from forfeiture.68 He
indicated that he would consider at the conclusion of that hearing whether he
needed to give directions about it. In the event, notwithstanding that 25
directions were given in the Order from that hearing, none required a formal
application for relief. It was therefore wrong for the judge to reverse his stance
after the trial and to hold that in the absence of a formal application he had no
74. Ground 9 of the Amended Grounds of Appeal is that:
The judge was wrong not to grant relief from forfeiture of either or
both leases. On the unusual facts of the case before him, the judge
ought to have granted such relief, even if the tenants could not
immediately pay the accrued rent in compliance with the usual terms.
75. The judge plainly had a wide discretion but treated himself as required to
apply an approach that it was for the tenants to show that they could, and
would, immediately pay the rent up-to-date in order to obtain relief.
76. There is no
such fetter on the discretion. As was said in Shiloh Spinner v
67 Transcript of Judgment p76 paras -
68 Transcript of Judgment p35 para 
Harding  AC 691 at 723G -724A
"It remains true today that equity expects men to carry out their bargains and will
not let them buy their way out by uncovenanted payment. But it is consistent with
these principles that we should reaffirm the right of courts of equity in appropriate
and limited cases to relieve against forfeiture for breach of covenant or condition
where the primary object of the bargain is to secure a stated result which can
effectively be attained when the matter comes before the court, and where the
forfeiture provision is added by way of security for the production of that result. The
word "appropriate" involves consideration of the conduct of the applicant for relief,
in particular whether his default was wilful, of the gravity of
the breaches, and of the
disparity between the value of the property of which forfeiture is claimed as
compared with the damage caused by the breach."
77. Earl Loreburn in Hyman v Rose  AC 623 had said (page 631):
"I desire in the first instance to point out that the discretion given by the section is
very wide. The court is to consider all the circumstances and the conduct of the
parties. Now it seems to me that when the Act is so express to provide a wide
discretion, meaning, no doubt, to prevent one man from forfeiting what in fair
dealing belongs to someone else, by taking advantage of a breach from which he is
not commensurately and irreparably damaged, it is not advisable to lay down any
rigid rules for guiding that discretion. I do not doubt that the rules enunciated by the
Master of the Rolls in the present case are useful maxims in general, and that in
general they reflect the point of
view from which judges would regard an application
for relief. But I think it ought to be distinctly understood that there may be cases in
which any or all of them may be disregarded. If it were otherwise the free discretion
given by the statute would be fettered by limitations which have nowhere been
enacted. It is one thing to decide what is the true meaning of the language contained
in an Act of Parliament. It is quite a different thing to place conditions upon a free
discretion entrusted by statute to the Court where the conditions are not based upon
statutory enactment at all. It is not safe, I think, to say that the Court must and will
always insist upon certain things when the Act does not require them, and the facts of
some unforeseen case may make the Court wish it had kept a free hand."
78. Had he not misdirected himself, that it was an absolute requirement for relief
that the tenants must
immediately be able to bring the rent up to date, the
judge would and should have found this a fit case for the exercise of discretion
(1) this was not a wilful default case;
(2) despite all the difficulties that the judge found with the
state of the premises, the tenants had paid the rent
throughout the ‘problem periods' up to 2009;
(3) the October 2008 rent had (on the tenants' account)
been tendered by cheque before re-entry;
(4) that rent had in any event been paid in full by money
transfer the day after re-entry;
(5) despite the modest award on damages, the tenants had
succeeded on their claims; and
(6) they had an extant application for permission to appeal
in respect of the judge's judgment.
79. Ground 10 of the Amended Grounds of Appeal is that:
“Having extended the tenants' time to appeal from his orders, the
judge was wrong not to have
stayed his order for possession until the
appeal court could be seized of such an appeal. He ought to have
directed himself that a refusal of a stay would lead to the landlord
immediately recovering possession (as it did) and would thereby
disable the tenants from trading and thus effectively financing and
pursuing an appeal (as it did).
80. This Ground speaks for itself. The judge appears to have directed himself that
a stay should only be granted if the tenants could satisfy the terms of the very
order in respect of which they were seeking a stay pending appeal.69 That
approach is entirely circular. The refusal of a stay has, as the tenants suggested
that it would, prevented them from continuing to trade and thus deprived them
of the ability to pay future rent while at the same time disabling them from
having a base from which, or resources with which, to expediently progress
Transcript of Judgment p77 para 
81. The remaining Amended Grounds of Appeal deal with costs. They are,
unusually, not contingent on success with the other Grounds of Appeal. They
82. Ground 11 of the Amended Grounds of Appeal is that:
Even if the judge did not err in any other aspect of this case, he was
wrong to use the exceptional power to order the tenants to pay the
costs of the proceedings assessed on an indemnity basis when, inter
alia, (1) the tenants' claim had succeeded in part and (2) the tenants
has been self-represented during the bulk of the proceedings and had
only conducted themselves in a manner common to many reasonable
83. At this stage no great elaboration of this Ground is developed. It is well
recognised that the making of an indemnity costs order is exceptional. The
judge found this an
“extraordinarily difficult case”70 because it had not been
well pleaded at a time when the tenants had had professional legal
representation (not their fault) and had thereafter been conducted in a fashion
that is sadly not uncommon when litigants try to handle complex litigation
themselves. The judge might have been on firmer ground in applying an
indemnity basis to the period after various offers had been made by the
landlord. But without giving sufficient reasons for doing so, he applied the
indemnity basis to the entirety of the proceedings.
84. Ground 12 of the Amended Grounds of Appeal is that:
The judge was wrong to order the tenants to pay the reserved costs of
all the interlocutory applications, most particularly where (1) the
tenants had succeeded in their application to be restored to possession
pending trial and (2) the landlord had later failed in an application to
possession of one of the demised premises prior to trial.
85. It is respectfully suggested that this Ground also speaks for itself. The judge
required the tenants to pay all the reserved costs of all the interlocutory
hearings, even those at which it might be said they had ‘succeeded', without
70 Transcript of Judgment p76 para 
giving any explanation for doing so.71
86. The Appellant's Notice seeks a stay of execution of the Order under appeal.
Notwithstanding that more than two years have passed since the making of
that Order, a stay is still pressed as explained in the following paragraphs.
87. The tenants' primary concern is to be restored to possession of the premises at
the outcome of the Appeal (if permission be granted for an Appeal).
88. In respect of Nos.106-108, the most recent lease was granted in 2005 for a
term expiring in April 2014. 72 That term has
more than a year left to run and
this appeal should have been fallen for determination well before it does.
89. In respect of the lease of No. 104, that lease was granted in 2000 and the term
expired in June 2006.73 Although it does not appear that Ms Flores (the sole
tenant under that lease) gave any notice under Part II of the Landlord &
Tenant Act 1954 seeking a new or extended lease, the judge had previously
held that there was a triable issue as to whether the landlord would be
estopped from taking a point on the failure to give such notice until this
litigation was finally concluded.74 Indeed, the landlord had not been unwilling
to have Ms Flores as tenant and had offered a fresh five year lease, at the same
rent, as one of the terms of a proposed settlement of the litigation.75
90. In those circumstances, the tenants will invite this Court at the conclusion of
the appeal to make an order
with the effect that the tenants be restored to
possession. As neither property has been let on a fresh long lease, this is far
from impractical. If permission to appeal be given, the tenants will seek
undertakings from the landlord not to let on long leases pending the hearing of
71 Transcript of Judgment p78 para 
72 The lease is at p113
73 The lease is at p79
74 Transcript of Judgment at p38 para 
75 Transcript of Judgment at p78 para 
91. For all or any of the above reasons, this Court is invited to Order that:
a. The Appellants have permission to amend the Grounds of Appeal by
substitution with the Amended Grounds of Appeal;
b. Permission to appeal is granted on those Amended Grounds;
c. There be a stay on terms of the execution of the Order under appeal
pending the hearing of the appeal; and
d. The costs of the application for
permission be costs in the Appeal.
92. The Pro Bono Unit cannot, with respect, commit at this stage to being able to
represent the Appellants in the substantive appeal.
93. If the Court feels that the Amended Grounds of Appeal can only be properly
canvassed with legal representation it may wish to consider the appointment of
Jan Luba QC
Instructed by the Bar Pro Bono Unit
19 November 2012
Appeal No: B5/2010/2396
IN THE COURT OF APPEAL
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
For hearing on 4 December 2012
Claim No: CHY09015
B E T W E E N:
JO GAVIN (now JO FLORES)
ON BEHALF OF THE FIRST APPELLANT
Prepared by Jan Luba QC
19 November 2012
Bar Pro Bono Unit
DX 188 London Chancery lane
Judge's order of the 4th Dec 2012 read's; On reading the Appellant's
Notice filed on the 13th October 2010 filed by the Applicants on appeal
from the order of His Honour Judge Cowell dated 22nd September 2010. AND
ON HEARING Mr Jan Luba QC of counsel on behalf of the Applicant IT IS
ORDERED that 1) permission to appeal be granted, save for grounds 8,9
2) permission to amend the grounds of appeal into the form of
the amended grounds 3) a stay be granted 4) the matter be heard before
three Lord Justices one of whom may be a High Court Judge and one should
have property/chancery experience 5) the time estimate be a day and a
half 6) costs in the appeal The court sat from 12.10 to 13.15