Long Case Version
In challenging the Judgment of the Court of Appeal 24th May 2013 and submitting the pending case to the Supreme Courts in June 2013 for permission to appeal here is my argument.
There were no arrears and therefore no set-off needs to be established as there were no arrears in rent whatsoever.
Evidence; Receipt of payment of rent Oct 2008 to Jan 2009
Point 19 of court of appeal judgment
The only arrears that had built up were liability insurance monies owed to us, causing a rift in relations between landlord and tenant. The eminent Mr Jan Luba QC was the first to mention the term ‘set off’
Evidence; Email between Mr Jan Luba and Ms Jo Flores (nee Gavin) stating to correct the advocates statement as there was no ‘set off’ which was an important legal term. It meant we were saying we would not pay the rent as the amount owed to us from the landlord was ‘set off’ against the rent. We never played that game. We always paid the rent. So the ‘break in’ was a trespass. End of. No set off! Therefore, ‘set-off’ needs to be struck out, as administratively incorrect and as never pleaded, before pro-bono help and is incorrect in facts anyway as proved in receipt of rent payments up to date.
Lord Justice Ward ordered us the claimants to have pro-bono assistance.
Evidence; Permission to Appeal Judgment Order.
Yet our 4 pages document read to by Ms Flores to LJ Ward at the previous May 2012 permission to appeal hearing was so concise, quoting Vural Ltd v Security Archives, Barrett v Lounova, Hargroves Aronson & Co v Hartopp also addressing each error of fact in the original trial with irrefutable evidence and showing evidence of the collaboration between the landlord and the insurers adequately convinced LJ Ward to say that another oral hearing would have to take place but this time with ordered pro-bono assistance to formulate the grounds of appeal. So although all facts were correct LJ Ward wanted a QC to put it in legal language.
Lord Justice Ward’s final point at the end of that hearing in May 2012 was and I quote;
“all damage that took place at the claimants premises came from sources outside of the demised premises, not in the claimants control and legally speaking there has got to be something in that”
It was a very fair and legal point and did later prove to be very accurate.
So to return to the point of “set off” in that then 4 years history of the case in the courts, not a soul had used the word ‘set off’ – in fact the nick name for this case printed on garments merchandise is logoed as ‘Trespassed’
Evidence; Red Trespassed Hoodie.
The forfeiture was then illegal so no need to apply for relief from forfeiture, as a landlord who has trespassed you is not going to give you relief, is he? And further the after the claimants broke back in having showed proof of payment the landlord again trespassed on the 4th Nov, so this is not a landlord who is not playing fairly as he had no grounds whatsoever for the second break in as he knows there is no rent owing and what possible reason could he then have for breaking the locks and wanting us out. The second trespass 4th Nov 2008 led to us taking two injuctions, granted by Judge Wilkie on the same day, for protection of property. The losses are running from April 2004 the point of damage to the premises with insurance monies withheld, further to the point of trespass, then to wrongful eviction in Sept 2010 trial judgment and consequently to this very day.
Evidence; The letter that Oliver Barnett says he cannot recall in his witness evidence, to CHA on 24th Oct 2008 warning not to illegally forfeit – 5 days before the trespass.
The law, which has to be maintained, is Vural v Security Archives. This case is about harassment, insurance payments were delayed by the landlord, to put the tenant out of business, so that the landlord could evict the tenant. As held. I wrote that law for the skeleton argument I & II and said it at the oral hearing so I wouldn’t change it to ‘set-off’ and I don’t.
Point 20 of Court of Appeal Judgment
The ‘Grounds’ are clear – they are not simply about an implied obligation for a ‘repairing covenant’ they are about an implied covenant to keep the ‘repairing instrument’, the insurance in place– it’s the and/or point in the grounds that won permission to appeal that are so very clear so they read in effect like this if precise;
‘To keep in repair at all times: Such parts of the building as might if defective, lead to occurrence of damage covered by an insured risk”
Evidence; Email evidence between solicitors Bircham Dyson Bell and I regarding the transcripts of the Court of Appeal.
Ms Flores 23rd July 2013
I wonder if you could tell me whether you recall me advocating two things. 1. That absolute liability was catered for as I was insured for repairs at all times and 2. That I asked for an implied obligation to 5(22) that the landlord could not (like myself) breach the insurance?
Ms McIntyre 29th July 2013
In response to your questions, I can confirm that you argued the two points you mention below. The transcript of the hearing will reflect this.
However, I should point out that these two points did not necessarily fall within the scope of the grounds for which permission to appeal was granted on 4 December 2012, particularly your point about an implied covenant based on clause 5(22) of the lease.
Thanks you for your response and for kindly confirming that these were my two points argued.
Just to add that the clause 5(22) related to a repairing obligation under a different construction.
Therefore it falls within the grounds that were accepted for implied obligations to repair.
Just to add that the clause 5(22) related to a repairing obligation under a different construction.
Therefore it falls within the grounds that were accepted for implied obligations to repair.
Just to add further that the landlord had a proprietary obligation to lay out insurance for repairing at all times and my insurance cover means that they can still (or should have done at the time) enforce this obligation with the insurance.
As long as I did not break the terms they still have a claim on my behalf.
That makes the ground clear and how it is written by the eminent QC Mr Jan Luba (below), amounts to the same ‘scope’ from within the grounds that were given permission to appeal hearing on the 4th Dec 2012 for me to argue 5(22) as the necessary implied ‘repairing instrument’ covenant;
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 such parts of the building as might, if defective, lead to the occurrence of damage covered by an insured risk.”
Further it must be stated to make more logic of the situation that we don’t repair either, our repairs are covered too by the same ‘all risks’ insurance policy as the ‘repairing instrument’. So it makes the point so clear there is no matched repairing obligation, only a matched obligation to make insurance claims for repairs, as that is the system and the remedy.
The (above) ground’s, were accepted by Lord Justice Ward and I am sure his honour understood them as they were written and pleaded.
If the clause 7(2) of the lease is insurance and insurance is the instrument of repair then the implied insurance obligation is clause 5(22), to be the repairing instrument in place, amounting to a repairing covenant, under a different construction – but the same thing in reality.
Point 21 Court of Appeal Judgment
Going back to the Lord Justice Ward giving us the Claimants legal assistance, this brings in Article 6 of the Human Rights Act, if that assistance missed out a major primary fact and at the time of the legally assisted oral hearing, no advice had been given to the claimants, one could say the claimant could only be forced to trust that all grounds from their previous skeleton I & II were catered for.
Since Ms Flores is not the type to simply trust the advisors she stood and covered that base or loophole as she saw it at the time by asking Lord Justice Ward to accept that there may well be grounds not covered in the advice (when she got it) and that she would be at liberty to add any that had been missed out.
In the original trial HHJ Cowell said that the claimants had not complained of the want of the structure to be repaired.
Evidence N244 submitted to the Court of Appeal before the hearing on the 2nd May 2013 attaching all documents with irrefutable evidence proving the claimants had repeatedly asked for structure to be repaired.
So Ms Flores asked that this be added into the grounds of appeal and she produced all the evidence so that even a fool could see she was absolutely correct in evidence and to appeal it, as one of the grounds. Transcripts cannot be necessitated when evidence produced stares one in the face. The Court of Appeal simply dismissed a large part of the claim amounting to 10’s if not 100’s of thousands of pounds by not accepting this as a ground that Mr Jan Luba QC had inadvertently left out. This does not take into proper consideration Ms Flores suspected lack of trust and unfairly dismisses, off hand, with no good reason, a ‘primary fact’ with irrefutable evidence.
The structure was illegal. It breached building regulations. In the famed Southwark V Mills case, the local authority were reprimanded (although they won the case) and lessons were meant to have been learned for a public landlord from this case so that as of the year 2000, no building regulation in a development or new build (as was in our case with 17m public funds given over in 1999 for rebuild) was allowed to be breached.
In this case only 1 year later the CHA public landlord have famously and flagrantly have breached the law and are going to great lengths to cover this spending in legal costs more than the claim itself was originally.
This ground, then cannot be simply thrown to the side just because the Court of Appeal feels like it with no justification. This ground must morally, socially and legally be put back into the claim. If not this is not a fair trial.
So that deals with the structure and breach of building regulations, the largest part of the claim so now since we are dealing with the issues let’s just quickly deal with point 18 of the Court of Appeal judgment while it is still nearby at the head of the judgment.
Point 18 of the Court of Appeal Judgment
I think it is important to address, “set off” first, then clearing the matters of the grounds of appeal, then the misdemeanors of what constitutes a fair trial and how large parts of a claim cannot be simply removed in a very manipulative manner and then forgotten about which lead us adequately into that important building regulations issue the structure of the building and it’s illegality, so as I said just to deal with point 18 whilst it’s still nearby, that is also a building problem which forms part of our claim.
It is an issue of leaks (covered by insurance) coming into the property via an inadequate bitumen sealant on the street pavement that requires bi-annual maintenance to prevent water ingresses occurring every two years.
Now HHJ Cowell, the Judge at the original trial, held that the pavement did belong (as proved by us) to the defendant landlord, as they insisted throughout it did not. We the claimants can’t then in law be expected to ‘relieve the landlord’ of his legal ‘duty’ to get it fixed as HHJ Cowell suggested we might.
Firstly we did not have the means to do so and even if we did and had mitigated the losses ourselves, we were actually forbidden to do so, as it was a public pavement as well as the landlord in this case expressly forbade us to contact their contractors Kingsbury Construction (when we called them, as seen in evidence). But most importantly our contractual obligations were not to cover repairs outside of the demised premises.
The 7 months delay in fixing the first pavement leak cannot be justified as there was nothing to trace before remedy. Now if in this Judgment of the Court of Appeal, you are referring to another 3 years leak into the high voltage electricity cupboard then further as in the law of Woodfall;
‘Bad Contractors’ is in no way a legal defence for the 3 year leak.
So to conclude that deals with;
- the structure which was illegal
- the pavement which leaked every two years
- and now the pipes leaking into the electrical room for 3 years.
So I’ll move on now to the next point and that is point 23 of the Court of Appeal Judgment.
Point 23 of the Court of Appeal Judgment
This point deals with ‘notice’ to the landlord of disrepair and in turn adds to the fact that this was ignored in judgment by the Court of Appeal breaking Article 6 of the Human Rights Act, the right to a fair trial. Like the issue of the structure being manipulatively set aside the ‘notice’ to the landlord part of this case has simply been ignored by the Court of Appeal.
One cannot simply make judgment accepting up to 3 years delay in repairs. In the law of Hargrove, a ground accepted by the permission to appeal hearing, damages were awarded after 2 days ‘NOTICE’ but in our case, even the insurers said, that after NOTICE the landlord committed ‘an act of omission’ by failing to repair on time.
So if we take Hargrove as a benchmark on ‘notice’ and in that case liability was established when the claimants having given just 2 days ‘notice’ before any damage was caused won the case, then in our case, if we apply the same principle to 16 cases of disrepair over 4 years, (many at the same time in different place, so subsumed as in can’t be claimed for twice in the same period even though they were different incidences but nevertheless), then after ‘notice’ repairs should be completed relatively quickly in law.
However and we have evidenced this throughout so it is not in dispute either and we still contend that repairs took, 4 months, 7 months, 24 months, 3 years, 3.2 years, another 3.2 years + others and some never got fixed at all, so that the benchmark and president in law for Hargroves Aronson v Hartopp is by far exceeded.
Why then has this been ignored in Judgment by the court of appeal.
Notice is a major part of the law!!!
And upon giving ‘notice’ a landlord then is legally required by ‘duty’ in common law.
But as I said and I keep saying, it matters not in ‘duty’, ‘common law’ or even ‘notice’ as I was insured, so landlords and tenants has no place in this case.
Ironically the UKU building insurance has no cover for any ‘landlords and tenants’ dispute as they simply deal with our contract of insurance with the landlord and ourselves through the landlord, so they don’t pay legal costs for a trespass case, yet they are paying CHA’s legal costs alongside the additional RSA public liability insurers, mixing it up to defend the insurance claim (as a commercial decision ‘yes’ apparently they are allowed make according to the financial ombudsman, that is if FOS is anything to go by but there it is). At this stage they should check the legal merit and the win, which has to be more than 50%, then they should pay us and recover with all their might from the landlord who is well able to defend himself as this case is a legally unfounded case and they can only hope to win by tactics either to wear us out and keep us in court as long as possible, hoping we may slip up or die or starve or whatever game plan they have with all their mighty resources between them all. The landlord seems to have played that card maybe the insurers have too. Well everything has a funny way of being exposed in this case!
But it is in their interest to keep us on our knees, to help the landlord strip us of our shops, our money or of any way we can further a ligitimate insurance claim. Us disappearing would save them a claim. So there must be some way a court can observe that and address it, at least by commenting on it.
Or every leaseholder in the country should worry that a standard policy of joint landlords and tenants insurance means nothing, as the bigger party will be unfairly armed and that is a commercially viable option available to insurers, especially to a large account holder such as a public landlord with widespread connections as is just most recently legally recognised as having such widespread connections by Europe.
Or every leaseholder in the country should worry that a standard policy of joint landlords and tenants insurance means nothing, as the bigger party will be unfairly armed and that is a commercially viable option available to insurers, especially to a large account holder such as a public landlord with widespread connections as is just most recently legally recognised as having such widespread connections by Europe.
The insurers dropped this landlord so as not to pay them to pay us yet is legally defending them still now at the Supreme Court stage.
The insurers said the landlord failed to repair on time after NOTICE.
They know the law but here is some more of the law for those to be convinced still…
In Cockburn v Smith (where Hart v Rogers which is no longer an authority was a supplemental case that the landlord who retained a roof was under an absolute duty to repair, stressing the word ‘absolute’ duty), it was held that the landlord was under an obligation to take reasonable care once he had ‘notice’ BUT in that case the landlord had some expressed obligations to repair the common parts.
In our case the landlord had no express obligations to repair (EXCEPT To: Keep the demised, my shops, and the common parts above the shops and enveloping them, called “the development” insured against all risks) and that was never argued in the Court of Appeal so it cannot now be said in Judgment that it was said. I never said they have a ‘duty’ to repair-never-not once-because I know they don’t!
NOTICE, however was argued (as in common law notice) and the ‘duty’ to take ‘reasonable care’ but the most important thing which is about notice really (as it certainly played a large part in the insurers decision that the landlord had created an act of omission BY failing to repair on time after notice) but the most important thing, I contended at the Court of Appeal, which brings us straight back to the law of Hargrove is that in Clause 5(22) of the leases there was an implied obligation for the landlord not to break the terms of the insurance – so that – in the landlords expressed obligation, monies could be laid out, once damage was done from the premises, retained by the landlord and outside of my premises and control.
All parties were simply insured against the occurrences that took place. The insurers have said the landlords wrong in notice and so MUST the courts.
I don’t care if the insurers pay and then recover the costs from the landlord, they are huge businesses and by the time, if this case is anything to go by, in terms of them sorting it out among themselves and in terms of the cost of doing that happens then I’ll be long gone – it is simply NOT MY PROBLEM!!! In terms of them stacking up £500,000 worth of legal costs against me, when my claim could have been settled for much less – are they simply nuts the pair of them – or as suspected this case is certainly bigger than me and if that is the case… well it is of public interest as, in future, my law will effect every leaseholder in this country- and they should be worried.
And if you find it is the case, then I better get loads of damages because I’ve just saved loads of tenants and leaseholders throughout the country and nearly half killed myself doing it, doing 1000’s of hours of work, nearly losing my eyesight, not being able to have children, losing my businesses, living on nothing, losing my relationship, nearly financially ruined for life facing half a million pounds costs and never being able to recover who I was as an independent professional and the time lost!!
No- the damages are substantial! And there has to be something said for a professional lawyer who under an oath to the law did not drop this case out of ethics – when she knew – I AM RIGHT!!!
Point 24 Court of Appeal judgment
So onto point 24 of the judgment of the Court of Appeal – Again here to
deal with notice based law – Sedleigh Denfield v O’Callaghan again this was a case where a blocked drain caused trespass in foul sewage to the claimant. It was held that the defendant failed to make the drain safe and adopted the nuisance over a three year period, so despite notice, damage was eventually caused and held as such.
In our case it is important to look at the notice periods given, did the landlord continue a nuisance by not only failing to repair but by also failing to make insurance claims in a timely manner?
An ‘act of omission’ doesn’t exist if they informed the insurers and made claims –
I mean does the Court agree that the landlord had a ‘duty’ as in Sedleigh Denfield v O’Callaghan, upon notice to make insurance claims, to repair? Insurance being a repairing instrument and obligation the same thing under a different construction?
Point 25. Court of Appeal Judgment.
In the Court of Appeal they said in Judgment that it was not argued by me that it was a Rylands v Fletcher case and it did not form part of the grounds of appeal. Yet ground 1 of the amended grounds of appeal is that: the Judge ought to have directed himself that the landlord was liable to the tenant for all loss (and forgive me for being thick here but all loss is Rylands v Fletcher) caused by the defendant and not simply for loss as suffered after the landlord has had knowledge of it etc and further in paragraph 46 of our skeleton argument for the Court of Appeal it says; -
“The judges error was to hold that the landlords only duty was to repair the defect in the retained premises ‘as soon as reasonably practicable after he knows it is causing damage to the demised premises’ (and I quote the words of the eminent Mr Jan Luba QC): “with respect that cannot be law”. It is not impossible to imagine cases and this case may be a paradigm, in which a series of defect, each in turn repaired reasonably promptly by the landlord, successively causes such damage to the demised premises that they are rendered worthless and the landlord escapes liability…”
And before I continue – I have made copious references to Rylands v Fletcher as a ground (because as we all know the only two out of twelve grounds that failed to get permission to appeal were the forfeiture and the stay at the premises) in my case and I remind those of us that were there at the Oral hearing for permission to appeal Lord Justice Ward was quite tickled that Mr Jan Luba QC (who gave some pro-bono help at that hearing) was going to try to reinstate the law of Rylands v Fletcher as an authority-
So I will explain- Rylands v Fletcher having learned it like the back of my hand; the Rylands v Fletcher case is about ‘absolute’ liability-
Rylands mine was flooded by Fletcher, when Fletcher was building a reservoir and for reasons best known to his builders they failed to block up some old mine shafts, before filling his reservoir with water. Of course the water then weaved it’s way to the working mine of Fletcher rendering his business flooded and worthless hence the law:-
‘When someone keeps an artificial construction on his land and it causes mischief on another’s property, he must keep that thing that may escape and cause damage, at his own peril”.
This was the birth of ‘absolute’ liability and in some respects if not the actual very case – it’s precious re-instatement would cost insurers like it used to until just recently, as was fair and right. Liability in insurance terms anyway is from the point of damage or why else have insurance?
So back to me without any doubt that I mentioned the Rylands v Fletcher case (because I was covered by in my view by ‘absolute’ liability because I was insured for liability contractually with my landlord)
So I continue- in the grounds accepted in the permission to appeal hearing in paragraph 48 of our skeleton argument it said:
“The Judge ought to have used the ‘duty’ he identified in Duke of Westminster v Guild 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 demised premise:- this is summarised in the law of Woodfall, “where a lessor (landlord) retains in his possession and control something ancilliary to the premises demised, such as a roof or staircase, the maintenance of which in proper repair is necessary for the protection of the demised premises or safe enjoyment of them by the tenant, the lessor is under an obligation to take ‘reasonable care’ that the premises retained in his occupation are not in such a condition as to cause damage to th tenant or to the premises demised”
Kind of a long-winded version of Rylands v Fletcher – you know NOT to cause damage – reasonable care etc
In Hargrove, Aronson & Co v Hartopp a gutter gets blocked up, landlord fails to clear out after a few day’s – held to be in breach of ‘duty of care’. Cockburn v Smith – very similar held liable – guttering of roof landlord retained control of roof. Lord Justice Scrutton in the case considered that the landlords duty was based on that modified doctrine of Rylands v Fletcher (again actually mentioned in the grounds and skeleton again)
Becomes a source of danger
To the tenant
Then Lord Justices Bankes & Sargant, preferred not to say whether the relevant ‘duty’ arose out of ‘contract’ or whether it was a ‘duty’ imposed by ‘law’ upon an occupier of premises to take ‘reasonable care’ that the condition of his premises does not cause damage-
“BUT they expressed NO DOUBT that the relevant ‘duty’ existed”
and I think it is important to point out that yet at the Court of Appeal three Judges quashed not only what Bankes & Sargant LLJ’s had said but overturned a judgment by HHJ Cowell the original trial judge that the landlord had a ‘duty’ to repair on time as one outweighed the other so the court of appeal now seems to think.
So where Bankes & Sargant LLJ’s were specific that the relevant ‘duty’ existed, preferring not to say whether that was in common law or in contract, the court of appeal has now preferred contract saying none of the landlords and tenant act matters as the contract overshadows all duties in common law-
So contract here in this case has won the day and new law has been made
So this case isn’t worth arguing in landlords and tenants anymore, those laws are worthless and my case is thereby concluded with this evidence
Insurance Evidence: The landlord made me un-insured and broke his obligation in contract to insure
All Documents proving the dispute with the insurers between the landlord and themselves already shown at the court of appeal, the oral hearing and the original trial.
But since I don’t think one can set aside common law since Bankes & Sargant highly regarded Judges and used all the time in court cases expressed that they had no doubt the relevant duty existed- I shall continue on my absolute liability Rylands v Fletcher point- In paragraph 49 of our skeleton argument for the court of appeal and the grounds of appeal accepted at the permission to appeal hearing, it states;
“That 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 point of the landlord; and
(2) a reasonable opportunity for repairs to be carried out.
That puts the tenants of an ‘enveloped’ premises in a seriously vulnerable position. The correct approach would be that the landlord is (and again here we have it Rylands v Fletcher echo’s) absolutely liable, if a defect in the non-demised premises caused damage to the premises demised.
As Lord Justice Carnwath said in the Earle v Charalambous case;
“In applying a standard (landlords) lessors repairing covenant, the law draws a distinction between disrepair in the demised premises themselves and disrepair in other parts of the building within the lessors control”.
Paragraph 54 of the claimants skeleton argument for the Court of Appeal.
Lord Justice Carnwath continued:
“In the latter case the ‘general rule’ applies: that is, the ‘covenant’, requires the (landlord) lessor, to ‘keep the premises, in repair at all times’ and he is in breach immediately a defect occurs. (British Telecommunication v Sun Life Plc).
Although it can be said the landlord has no expressed covenant in the leases to repair, they do have an expressed in the leases to insure- against ‘all risks’ that could cause damage to the demise, which can be said to be the same thing under a different construction-
Earle v Charalambous and BT v Sun Life being the famous authorities and cases won that deciphered the meaning in construction, “to keep in repair at all times” within a contract, actually means “at all times” – the minute you damage- you pay!
“General Rule” is established (in common law and in contract) and so liability insurers, who get a claim of damage that came from outside the premises demised, would accept absolute liability immediately as that is what the cover is for. Damage covered “at all times”.
If this case is said not to be anything to do with common law as there was a ‘contract’ of insurance, then luckily we were covered for “all risks”, “all damage”, “at all times”-
Further: In the lease contract the landlord retained rights to enter our premises and repair and the original Judge said that the law of nuisance was “sufficiently pleaded in terms of fact”.
So all these points I’ve made do suggest that at the Court of Apppeal, ‘Rylands v Fletcher’ formed part of the grounds and I will not give way to cheap tactics, technicalities or errors that suggest that I did not suggest Rylands v Fletcher ie ‘absolute liability’ from the point of damage. To say it wasn’t in the grounds is breaching Article 6 of the Human Rights Act, the right to a fair trial, when it was!
And further for the Judges in the Court of Appeal on May 24th 13’ to suggest no stricter liability in common law (-when NONE was pleaded anyway-) for an implied obligation to repair, then what already was contracted in the lease and has remedy – oh dear is beyond belief-
because they don’t say yes insurance was in place but then the landlord scuppered the remedy-
they don’t say ummm but the landlord breached the “expressed” need to insure in the lease contract, they don’t mention, the medicine was gone- the remedy- didn’t exist-
but prefer to say the law should “not be stricter than the” non-existent “remedy”.. it beggars belief and IS NOT FAIR, RIGHT OR LAWFUL!
The judgment then gets rather long-winded off on a tangent about implied obligations and the explains suddenly why a ground that was excepted to be used at the Permission to Appeal hearing NOW cannot be used and that was the law of Barrett v Lounova..
Because you see in that case, it say’s that if I fix the inside and no one is contracted in the lease to repair the outside well the ‘implied obligation’ common sense ‘obligation’ would be as judged in that case that the landlord who has control of the outside exterior must by ‘implied obligation’ fix it or else my fixing the inside just becomes a futile exercise when his outside is continuously causing me damage-
But we used Barrett v Lounova not for want of the landlord to repair the outside himself, we used Barrett v Lounova for the PRINCIPLE and the precedent of the need for an ‘implied obligation’ and this case adequately helps draw a parallel in our own case-
If we repair the inside and the landlord doesn’t get his act together to make insurance claims for the outside to be repaired, a contractual expressed obligation as in the insurance which are the ‘special facts’ of our case-
Like the same as a repairing obligation, Barrett v Lounova, assists to make a fair judgment.
It’s the same, same, but different.. Everyone in legal advice since the beginning say’s it’s a Barrett v Lounova case and it is-
Barrett Lounova is the same except one is a chopstick and the other is a fork, same, same but different.
In the Court of Appeal the Judges suggested we asked for a fork but we asked for chopstick it’s the same instrument, it does the same job.
The Judges can’t say oh we can’t have Barrett v Lounova because ‘insurance was in place as the remedy’ when the chopstick was broken.
Barrett v Lounova is the principle in law, it cannot be an identical case, ‘no case can be identical’, they all have ‘special facts’ so for the Judges to actually say we asked for something we didn’t and didn’t want, is a lie, blatant, it just did not happen!!! Again Article 6 Human Rights Act, Right to a fair trial. It’s just twisting facts and pleadings, to suit dismissal of the case and making some far-fetched analysis that there is a lack of comparable law in the Barrett case, where clearly there is.
No- implied obligation to repair was NOT requested-
An implied obligation to keep insurance in place clause 5(22) of the lease was requested to be implied-
In simple language for the landlord not to break the insurance as we under 5(22) cannot
-SAME, SAME BUT DIFFERENT-
-TWO REASONABLE MEN WOULD IMPLY WITHOUT HESITATION-
The Court of Appeal in Judgment says that at the original trial the laws that were relied upon by HHJ Cowell at the original trial were Gordon v Selico LTD – BUT – this was a case of fraud committed by a third party-
Nothing to do with the landlord and tenant, it was a 3rd party builder, they should have sued the builder directly-
Duke of Westminster v Guild was cited –BUT- in that case the nuisance came from the claimants own premises and actually caused a trespass in foul waste to the landlords land.
Bankes & Sargant LLJ’s in the case of Cockburn v Smith was cited and explains a want of ‘reasonable care’ after notice, where he is given notice and fails to repair.
The Court of Appeal Judgment say’s HHJ Cowell at the original hearing cited further authorities such as Carstairs v Taylor – BUT – this was a case where an animal caused the said leak and this was deemed in Judgment to be an ‘Act of God’ not the fault of the landlord.
HHJ Cowell had mentioned Hargroves v Hartopp but that was actually a case where it was judged that it was too late for the landlord to say that the defendant should have insured against damage and the landlord was liable.
The Court of Appeal continued but now from their own point of view in Judgment quoting Lord Justice Scrutton and his concerns over whether the issues arise in tort or in contract (tort being individual cases of damage) and the Court of Appeal in Judgment wonders about the legal implication left open?
But they conclude that Lord Justice Scrutton in a previous case, thinks the legal implication is tort and a ‘duty’ to take ‘reasonable care’ not to cause nuisance.
As for the legal implication left open as to ‘tort’ or ‘contract’ the Court of Appeal mentions another case that merits a possible answer to that legal implication, Gordon v Selico and say’s that L. Goulding expressed the view of whether ther was a gap in the instrument (ie the lease) and said it was more natural to fill the gap by implication ie ‘AN IMPLIED OBLIGATION’ than by the laws of tort (as I said individual cases of damage)-
So here they quote another law which is actually a very well known leading authority Liverpool v Irwin – In that case where an ‘implied covenant’ was preferred over matters of individual tort. This case is now used in effect to make the system now workable for good rather than spending huge amounts of time and money on individual tort cases. So using, a ‘implied obligation’ in the absence of a complete contract is a more effective longstanding decision in law. The facts that made this case, a precedent, were in torts in cisterns overflowing and vandalism on a large dwellings estate. It was a case, due to it being a public landlord of large dwellings where the housing act 1961, Section 32 came into play and although there were no expressed obligations on the landlord to repair, the Court decided in their absence and to make sense of the contract/instrument to keep the ‘common parts in repair and easements in working order’ to complete the contract by implying obligation on the landlord as the contract necessitated it!
Point 26. Court of Appeal Judgment.
Here we jump from domestic water supply or lavatories (not mentioning they would have to be an easement ie for our use too) saying and I quote, “it is well established that tenants cannot sue under Rylands v Fletcher for damage caused by defective guttering or leaks in water pipes in the
Evidence: Pictures of nine foot of shit coming down the walls.
absence of proving negligence” and I quote again, “the same PRINCIPLE MUST apply to SOIL PIPES in this case” –
How’s that then as each is quite hugely different, one carries domestic water and the other domestic waste ie toilet sewage! SO HERE WE ARE QUICK TO USE PRINCIPLE IN LAW!! –although the comparison from a fork to a chopstick is quite clear, I cannot compare water with excrement easily or at all.
And that concludes my Rylands v Fletcher point clearly in the grounds in response to the Court of Appeal Judgment point 25 and a bit of 26 and 29 in Carstairs v Taylor also Lord Buckman preferred not to say the ‘duty’ arose out of ‘common law’ or ‘contract’ too-
Point 32.Court of Appeal Judgment.
So I move to point 32 in the Court of Appeal Judgment made on the 24th May 2013 currently in application for permission to appeal at the Supreme Court.
On this point the court of Appeal decided that due to, Gordon Teixeira v Selico LTD, which we the claimants apparently and according to the Court of Appeal anyway, follow this line of authority, therefore we cannot plead, they say, an ‘implied repairing obligation’- In Gordon v Selico which I might just add in here was only produced on the first day of the trial as an authority- so we had a night to learn it – it say’s;
“that the implied obligation to repair should be absolute in nature in the sense that the landlord became liable for the consequences of disrepair as soon as it occurred, regardless of whether he had or should have had notice of the defect”
BUT as I quickly point out, the case pleaded is for a repairing obligation and also the special facts in this case are it was a fraud case committed by a third party, namely the landlords builders.
In our case the third party is the insurers but in our lease contract it caters for the landlords third parties and they are named as it’s servants and agents. The insurers, unlike the builders in this case are at loggerheads with the landlord but the landlords only duty in contract is to us to insurers the premises at an insurer of good repute. The landlords 3rd party is nothing to do with us, we don’t choose who they are. If this was a game of poker and the landlord owed us money it would not matter how he got that money or his fight with a 3rd party though he was a fool to lose money in a poker game so would not pay then it cannot be, that the landlord does not fulfil his “expressed” debt.
The contract is fair. I might add that it is his ONLY expressed contractual obligation to insure us in theses leases. And we paid him to do so. He cannot get off the hook by teaming up with his 3rd party to beat us up. We have done nothing wrong and are owed a debt that is rising by the day.
We have no contract with his 3rd party except limited contact through the landlord in producing essential evidence to show the losses.
I cannot see that Gordon v Selico is an authority we would need, as the third party is not our concern,
We contend and have throughout that the landlord was ‘absolutely liable’ because insurances were in place for Property Owners Liability P.O.L. for short and we showed the policy in the Court of Appeal and its not ever been disputed never mind mentioned by the other sides solicitors and lawyers, that the policy covered us all for damage, including business interruption because of any insured risks OUTSIDE of the demise affecting the demised premises.
The only implied covenant requested was them not to vitiate the insurance like we can’t in 5(22).
I cannot believe the case pleaded has been turned into something not pleaded or even said.
But if we are to follow Gordon v Selico common law aspect of the case which so much time was focused on and apply it in PRINCIPLE to what we did ask for 5(22) the landlord not to void the repairing instrument of insurance then in Gordon v Selico it say’s “ The courts of appeal decided in those cases that any liability derived from the position of the landlord as an adjoining occupier is based on negligence and notice!
Well one, the insurers won’t pay because of the landlords negligence and two, it flows that they won’t pay as the landlord took too long to repair after notice- so that according to Gordon v Selico it is an authority in our favour for an ‘implied covenant’ for the instrument of insurance, that serves to repair to be kept in place, as expressed in the contract.
At the Court of Appeal the lawyer for the landlord said an implied obligation for the insurance not to be voided may have been deliberately left out by the architect of the leases however that is not a good argument and has no place legally in the case and further is only a secondary point to the ‘expressed’ obligation to insure in the lease and no insurance was in place because the landlord voided it.
So to conclude the landlord in breaking the terms of the insurance has left us paying the rent, bills and business rates whilst being unable to trade. The landlord in fact made no application for ‘cessor of rent’ a cover in the insurance policy whether in part or in full when we were wholly unable to trade and he still continued to demand rent.
This unduly enriched the landlord whilst they and we were covered elsewhere in contract by insurances.
All the Judges to date have accepted that the landlord breached the insurance except the Court of Appeal who have just failed completely to state it at all.
Therefore an implied covenant is still required as is right to keep the contract from being ‘absurd’ without it. ‘ABSURD’ is a legal term, for an ‘UNWORKABLE’ lease contract, it is then not worth the paper it is written on.
“If it is absurd in our case, it will become a stupid case that every leaseholder in the country should worry about. Landlords effectively doing nothing to repair with insurance, not making claims and getting way with it”
Or landlords going around their leaseholders houses/flats/shops/businesses and saying;
“well I had a look and that was (very legal term here) ‘reasonable’ of me and that then gave me as much time as I needed to get the job done after I called into you” - “I have complied with my part of the law after (another legal term) ‘notice’ therefore, since I looked the next day or soon after - you have to give me however long I want to repair. Oh and I might just do a DIY job myself and not bother the insurance company, saving myself a claim.”
So does anyone in this Supreme Court or in the country want to be a victim of that mentality, I don’t think so – You MUST convict this landlord of negligence after notice and making claims so late (and then only when the ceiling flooded and had to be replaced so they could not avoid making a claim but before they did we had to pay £3,000 to replace it ourselves) so as to void the policy and finally for triggering the legal defence in the policy to avoid the claim for 5 years.
Further when material damage was caused by the landlords demised premises and we paid for the damage ourselves for example £3,000 ceiling, we were reimbursed ‘directly’ only because the landlord did not repair themselves, as they should have mitigating losses according to the contract.
Point 33. Court of Appeal Judgment.
The Court of Appeal in Judgment stated ‘by contrast’ an authority, the one and only ‘authority’ O’Brien v Robinson, which is the exception to the general rule. The ‘special facts’ of this one ‘exceptional’ case to the ‘general’ rule, has often been criticized. Lord Justice Norse explains that there can be exceptions to the rule like when an occurrence of damage is wholly outside of the landlord’s control.
And we see this in the case of O’Brien v Robinson, where the ‘special facts’, in this ONE case made an ‘exceptional rule’, to the ‘general rule’, ‘that before a breach of duty can arise notice must be given’.
BUT since that ruling has often been criticized as being the exception rather than the general rule, it is odd that it makes this appearance in the COURT OF APPEAL PLUS IT BEARS ABSOLUTELY NO RELATION TO THE SPECIAL FACTS IN OUR CASE. In O’Brien v Robinson a hairline crack on the ceiling of a tenants bedroom was not visible to the tenant but they did give the famous notice as they complained that the ceiling ‘might’ fall down with all the dancing that was going on upstairs for years. They then won the case as that was regarded as notice. The landlord had had a ‘reasonable’ opportunity to investigate.
It was an odd case as notice was based still on the crack being invisible even to the landlord.
This was never our case, our case is very straight forward and all damage was visible. Notice was given, yet repairs were not carried out within a reasonable time or in terms of the structure, at all until after we were illegally evicted. The evidence of all of the repairs are in the joint surveyors reports
Mike Parrett damp surveyors report as the joint witness surveyor.
The structure did not comply with building regulations.
Therefore the general rule must apply to our case, as it is not an exception to the rule and the occurrences of damage were not invisible.
The general rule must be in construction with regard to insured risks. This is then absolute liability as covered by insurance from the day of damage, especially since the damage came from outside our premises. Notice cannot be therefore given to defects outside of our premises. We would have to have x-ray vision or be psychic to give notice of an event in the neighbours flat.
In our case we simply tell our landlord damage has occurred, he makes an insurance claim to compensate us for any damage and any consequential losses. This is normal and is ‘absolute liability’ when the insurance is in place covering all risks including flooding and leaks.
Point 34 & 35 in the Court of Appeal Judgment.
The Court of Appeal debated in Judgment if, as in the case of British Telecom v Sun Life, which was the case about construction of words and what to ‘keep in repair’ “AT ALL TIMES” meant and “at all times” meant exactly that, “liability from the day of damage”, “absolute liability” or simply ‘in repair, at all times”, - but the Appeal Court in our case, concluded that- as stated before and wrongly I might add that the original Judge had decided in our case that he would import requirements to give ‘notice’ and allow them a ‘reasonable’ opportunity to fix the damage. The Court of Appeal pretty much dismisses BT v Sun Life PLC, to ‘keep in repair, at all times’ as this could give rise to the need to have the landlord repair immediately, which may in turn allow the Court of Appeal to imply a repairing covenant and again sorry something we didn't ask for- anyway so the whole exercise is very invalid but the conclusion by the Court of Appeal is that “no stricter liability can be given before notice and a reasonable opportunity to repair” backing the first Judge who wrongly in law imported these requirements.
But if we are to ignore all that and apply BT v Sun Life plc to what we did ask for which is to honour the landlords expressed (in contract and leases) obligations to keep insurances in place, then we would be covered for damage ‘at all times’ and not only is that an expressed covenant in the leases as a landlords ‘expressed duty’ but if we were to get what we asked for which the law allows that would be the implied covenant to not breach clause 5(22) which would be not to vitiate the insurance cover, as we can’t so it must be implied that they can’t either. And using BT v Sun Life plc that compensation is due at the point of damage, as the landlord is to keep insurance covering “all risks”, “at all times” and that is “expressed” in our lease contract, with an insurance policy inextricably forming part of the lease contract, attached to the leases.
Point 36. Court of Appeal Judgment.
The Court of Appeal draws our attention to Liverpool v Irwin and quotes Lord Wilberforce saying about the necessity to have an implied clause as opposed to what an occupier, can do for themselves.
In that case the contract needed an ‘implied obligation’ as the contract was incomplete as to who was responsible for the common parts, lifts, stairs, chutes being in good working order etc and the contract was incomplete. I think this case shows a necessity for an implied clause in our case and should work in our favour.
Point 37. Court of Appeal Judgment.
Further the Court of Appeal quotes Lord Edmund-Davies who pondered on the question of whether it is an absolute duty to repair, the common part or whether it is qualified by special facts as to amount to a breach in the landlords obligations.
Lord Edmund-Davies looked at Hart v Rogers (no longer an authority) where the landlord did not repair the roof that had leaked into the claimant’s premises and since that was outside of the claimant’s control, it was seen as an absolute liability case.
Lord Justice Scrutton in the Hart v Rogers case looked at another case of Miller v Hancock when deciding the outcome. It was held in that case, where a claimant’s visitor fell down the stairs because they were worn and defective, that there was a ‘duty’ to keep the stairs and common parts in repair.
However later cases Dunster v Hollis, Cockburn v Smith, decided that there was only a ‘duty’ to take ‘reasonable care’.
In our case there was no ‘easements’ meaning common use or common parts as we are commercial leaseholders and nothing to do with resident ‘tenants’, so these laws which are actually statues, under something called Section 11 and are carefully drawn up in statue for similar cases of dwellings of multiple occupation, but as commercial leaseholders and nothing to do with residents, Section 11 does not apply to our case at all.
We just happened to have leased from a landlord underneath a multiple occupation development, where section 11 special facts and enjoyments are applicable to the residents in their tenancy agreements.
But it has to be said that most shops in every high street are generally underneath (enveloped) a residential occupation.
The large public landlord should be warned that laws and privilege’s that apply to residents are certainly not the same with commercial leaseholders, who can ill afford to casually wait for a reasonable time in ‘duty’ for a landlord to repair as they somewhat completely differently are losing actual cash by the day and the consequences are that without cash flow the commercial leaseholder can be put out of business and owe creditors, in bills, business rates and any other duties they may have to their clients. The consequences of a lack of repair ‘at all times’ are clearly distinct from that of a resident who may face ill health or discomfort.
This is the laws of Chancery (a Court of equity) and the maxims of equity (Equity will not suffer a wrong without a remedy).
A landlord when dealing with a commercial tenant must insure and claim compensation for all the losses ‘at all times’ – (one just has visions of a concert hall or national newspaper going out o business for a day. The losses could be catastrophic by the day) and that is business for you! Insurance has to stay in place! The massive public landlord with connections in the judiciary cannot get off scot-free just because they have power and influence or we should all be worried!!
Email evidence obtained and given to the Supreme Court in this pending application that the highest judges in the land were involved in this small business case showing a want to bury the case and also a completely illegal family conflict of interest.
That is a nightmare scenario!!!!!!!
I had people to let down and compensate too.
This is of National public importance.
Point 38. The Court of Appeal Judgment.
The Court of Appeal say’s it is said, but doesn’t say or explain we said it and further we were referring to clause 5(22) of our lease contracts, that the case of Barrett v Lounova was cited and this was suggested as a law, (approved as a ground of appeal at the permission to appeal hearing) to suggest we could get an implied covenant to 5(22).
However in using this case as a precedent it does not indicate by any stretch of the imagination that another case and their special facts would be exactly the same. This law is used as a PRINCIPLE, the same outcome, ie to get an implied obligation to clause 5(22) as without one (apart from the expressed obligation to stay insured) the lease is unworkable.
This similarity to our case in the case of Barrett v Lounova is striking.
Barrett v Lounova is the case where a tenant had some repairing obligations, to repair inside of their premises, known as the interior. The landlord in the lease had ‘no repairing obligations’ so that when damage which was caused by the outside of the premises, known as the exterior and then damages the interior, it was said that without repairing obligations to the exterior, repairing the interior could become a futile exercise. The courts decided that repair of the exterior had to fall on someone and since in contract the interior was catered for by the tenants, it went without saying that the exterior was the landlords implied obligation to repair so as not to cause damage to the interior from repairs outside of the demised premises and control.
So the same PRINCIPLE applies in that if the landlord has no repairing obligations as in our case, they at the very least must have an implied obligation to keep the instrument of insurance in place to fix damage caused by the exterior for which we as leaseholders in contract have no obligation to fix.
This is similar to an implied repairing covenant as in Barrett v Lounova because in it’s absence of an implied obligation to 5(22) a disrepair condition of the premises makes the commercial premise unworkable in contract without insurance being in place for disrepair and all risks associated in disrepair.
The Court of Appeal then somewhat ironically say’s;
“There is no suggestion that the implied obligation to repair was absolute in nature and the court was not faced with a lease that imposed on the landlord the insurance obligations contained in clause 7(2). In this case it cannot be said that the tenant is left without remedy in the case of disrepair to the structure. That constitutes an insurable risk and the landlord is REQUIRED under the terms of the leases of 104 & 106 to apply the insurance monies in making good the damage and disrepair”
So in that sentence we see the irony. 'The tenant' or in our case leaseholders 'is not left without remedy' cannot be more far from the situation in this case and the obligations to insure in 7(2) are the ONLY expressed landlords obligations in the entire lease. It is a vital sentence.
And it goes back to “the ‘reasonable man would have if they had seen a gap in the contract before they’d signed it” argument that being “they both being reasonable men would have agreed without hesitation to its insertion” (into the contract).
If the remedy expressed in the contract has been vitiated, voided, broken, by the landlord, then the remedy is broken.
We are left with one thing only in this contract to address and that is clause 5(22) and it necessitated an implied obligation to the clause to keep the remedy in place.
But further since it is expressed in the clause 7(2) as a landlords obligation to insure then the court can prefer not to say if it should be an implied obligation to 5(22) or it is a breach of the ‘expressed obligation’ by the landlord to keep the premises insured and that stands on it own in contract law as an outright victory in the case of a breach of contract.
Either way the relevant ‘duty’ exists, to insure, against damage and disrepair ‘at all times’ and is absolute in nature by virtue of the instrument of building and liability insurance.
Point 39. Court of Appeal Judgment.
The Court of Appeal referred to the case involving insured repairs and that was the case of Adami v Lincoln Grange Management BUT again this was a case where an implied REPAIRING obligation was pleaded which I have made clear is not what we have pleaded. The Court of Appeal looks at the case of Gordon v Selico again and quotes Lord Justice Slade as referring to Mr Sunnucks saying, “if the defendants are in breach of any of those expressed provisions relating to repair and maintenance, the proper remedy, (in his submissions is) by refernce to the agreed system and NOT by reference to suggested implied covenants to which the parties never agreed”
Lord Justice Slade then said;
“Where a tenancy agreement relating to a flat, forming part of a larger building in multiple occupation, manifestly does not embody the complete agreement between the parties, the court may well be willing to supplement the written document by implying terms placing obligations on one party or the other. Such a case was Liverpool v Irwin, where the ‘condition of the tenancy’ where tenants were required to sign related only to the obligations on the part of the tenants, not of lessors council”.
However Lord Wilberforce then said, “such obligations should be read into the contract, as the nature of the contract itself implicitly requires no more, no less: a test in other words of necessity.
And Lord Cross of Chelsea, which I cited at the Court of Appeal said:
“That the Court must be able to say that it’s insertion of the term is necessary to give- as he put it- ‘business efficacy’ to the contract and that, if it’s absence had been pointed out at the time both parties – assuming them to be reasonable men – would have agreed without hesitation to it’s insertion”
The Adami v Lincoln Grange Management and Gordon v Selico case both have special facts as each case is different but the sentiment of the Lords remain the same.
In Gordon v Selico a third party covered up dry rot before the leaseholder took the lease on. There could be no implied term for fraud of the third party covered in contract between the parties.
In Adami v Lincoln Grange Management a tenant had gone along with an insurance scheme and no implied term could apply to give him extra monies for subsidence, when the insurance policy covered for it and he had decided to undertake the work himself.
In each case the suggested implied covenant to repair does not require one or merit one, as the insurance provides remedy.
In our case however it is that the instrument of insurance has been broken.
This leaves us un-insured.
It is therefore possible for the Court to imply a covenant to clause 5(22) to not allow the landlord to destroy the remedy.
This protects our position and completes the contract for all the same reasons as the Lords applied in the House of Lords.
In Adami v Lincoln Grange Management case Jutice Vinelott said;
“More generally I can see no grounds for importing any obligations on the part of the lessor to carry out works of repair to the block from causes which are not covered by an insurance policy effected pursuant to the terms of the lease, in particular damage which might result from deterioration of the structure during the term of the lease.”
In Duke of Westminster v Guild, Lord Justice Slade approved a passage by Woodfall, landlords and Tenant’s Act 28th Edition (1978) Vol I para 1/465 page 618 in these terms:
“In general, there is no implied covenant by the lessor of an unfurnished house or flat or of land, that it is or shall be reasonably fit for habitation, occupation or cultivation or for any purpose for which it is let. No covenant is implied that the lessor will do any repairs whatsoever”
BUT… in our case it is an absolute requirement to keep the demised premises and the development in repair and fit for human habitation, with fire certificates in place, with building regulations complied with and at an insurance office of good repute. This forms an integral part of the lease contract and is most importantly with reference to the laws just quoted, it is ‘expressed’ in the lease contract making either a ‘duty’ in law or ‘an implied obligation’ NOT NECESSARY AT ALL!! However where the gap in the contract needs an implied covenant, as common sense and just to spell it out, is that the landlord cannot void the insurance, as we cannot in clause 5(22) then it should be necessary to put in the implied obligation.
5(22) TO PAY COST OF REBUILDING IF INSURANCE AVOIDEDIn the event of the Demises Premises or the building in which they are situate or any neighboring premises or any of them or any part thereof being destroyed or damaged by any of the Insured Risks and the insurance money under any policy of insurance effected thereon by the Landlord being by reason of any act neglect default or omission of the Tenant wholly or partially irrecoverable forthwith in every such case to pay to the Landlord on demand the cost of rebuilding and reinstating the building or buildings so destroyed or damaged such rebuilding works to be carried out by and in accordance with the requirements of the Landlord and the Tenant being allowed towards the expenses of so doing (upon such rebuilding and reinstatement being completed) the amount (if any) actually received by or on behalf of the Landlord (other than in respect of loss of rent) under any such insurance as aforesaid in respect of such destruction or damage
Point 42. Court of Appeal Judgment.
The Court of Appeal takes the same view about implied 'repairing' covenants although I am at pains to say we did not plead this nor can I find where they take this from that we did but nevertheless the Court of Appeal takes the view that the contract would be improved with a repairing covenant and we agree!
The case of Belize v Belize is then cited as a modern day case about articles of association being written up so badly as to allow people with little or no consequence to a company in charge of it by virtue of others retiring or leaving. In this contract the Court found it was legally ‘ABSURD’. The architect of the contract had not thought of certain situations arising that then occurred causing the case Belize v Belize. The contract required an implied term and thankfully one was implied by the Court’s. This made the contract workable.
In our case the Court of Appeal says here;
“Although there was no express repairing covenant imposed on the landlord, the repair of the structure of the building is catered for through the provision of the clause 7(2). In the face of these provisions there is no reason based on necessity or business efficacy to alter the balance of the scheme by imposing an implied covenant to repair on the landlord, let alone one under which his liability to repair is made absolute”
Yet the Court of Appeal does not deal with the implied covenant request to clause 5(22) “to keep the development and the demise insured at all times”.
It is our case and has been agreed by the trial Judge as primary fact that the insurers said that the landlord committed ‘an act of omission’, which had the direct effect of us being stopped from claiming on the P.O.L. Property Owners Liability cover and that the landlord failed to claim on the ‘cessor of rent’ for times when the premises, as the claimants have contended throughout, were either partially or wholly unfit as set out in the schedule of loss, preferring to instead save on claims and extort money in rent from us when we could not trade due to disrepair.
We continued to pay the rent and stated it was a good-will gesture until such times as the landlord could get the money back from the insurers and mainly we paid the rent so as not to break the landlords and tenants act and find ourselves in serious trouble but we believed that the rent we paid amounting to £39,000 not owed was being held in trust until the ongoing insurance claim was resolved and we were reimbursed.
At the time we did not think we were paying rent not to be reimbursed by the insurance cover and this was a hugely stressful time financially.
The landlord knew they had committed an ‘act of omission’ so that the insurance money would never be paid, until they either resolved their differences with the insurance company or sued them to pay us as was their proprietary duty contractually to apply monies as effectively although we had joint cover, we should in the policy be seen as insuring separately as part of the same policy cover. Hence the reason they kept making rent demands but all the time leaving us in the position of ‘indifference’ and never telling us about the dispute with the insurers for years, just letting us wait and further making out they were actually chasing the claim.
Then when they absolutely knew they could not reimburse us they go and break in with them owing us £39,000 in rent for a 4 days late rent payment, again not our fault because they lost the cheques due to reception having lots of cheques going missing at the time we were told.
They ignored letters warning them not to take action to forfeit after sending threats in rent demands from new management and in witness testimony the new management said they cannot recall getting the faxed and posted legal letters.
Further when we proved just a day later we had paid the rent on time they without any just cause broke in again!! This was an act of violence and Ms Flores flead immediately to the high court within hours and obtained two injunctions for the protection of her property. The injunctions prevented the landlord from breaking in or they would be imprisoned. Ms Flores showed rent payment to get these injunctions. It said that the terms of the leases and quiet enjoyment was granted until trial. Yet this landlord did not observe the terms and still left the premises legally unusable for the two years that lead to trial. They at no point addressed the disrepair as they were contractually bound to do so in the leases and in the terms of the injunctions, to give quiet enjoyment and comply with terms of the leases. Were they stupid or just cocksure in their connections?
Point 43. Court of Appeal Judgment.
We very much agree that the existence of what the parties intended should be a;
“Comprehensive scheme for the repairs of both the demise and the retained parts of the building is sufficient to exclude from their legal relationship, any liability, at common law in tort which the landlord might otherwise be subject to in relation to the retained premises”
Point 44. Court of Appeal Judgment.
In the circumstances it is unnecessary to consider the landlords alternative argument of Caveat Lesse (‘buyer beware’ or a lessor can ‘let a tumbled down house’) law in terms of the leaks into the pavement, as the Court of Appeal said and we agree. But more principally as ‘our argument’ to that Caveat Lessee argument it can have no application in the case anyway, where defects were in the retained parts and covered by the insured risks.
The Court of Appeal said since there was no ‘duty’ in common law, the original (that the judge could hardly avoid) finding of negligence at the trail for 3 weeks excrement down the walls overflowing into the premises, cannot be now held.
This astonishingly small award of just £100 for the original finding of negligence is therefore quashed and the landlord succeeds on taking the £100 and finding of negligence back.
The Court of Appeal added that the trial judge had found that no bookings had taken place in the same 3 weeks.
We contend that that is an imbalanced view, as was written in our skeleton argument and that the original assessment of £100 for the three weeks of negligence finding of damage was extraordinary on the Judges own findings of fact not least that at one point he said the “smell was really bad in 106-108” and the recurrence of repeated ingresses of water, he said, must have been “quite enough to daunt the bravest of spirits.”
In his own judgment on quantum/money, the judge approached the assessment as 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 or hire. Such approach takes no sensible account of the impact on the shops ability to attract customers, to display their art or hire the exhibition area, or of the fact that the premises recurrently had a foul or damp smell and/or were damp as a result of ingresses of water, foul water or sewage.
Further, on the Judges own findings, the tenants had had to make repeated claims on the insurance policy. In relation to each claim there had been a, £100 excess. That excess was a loss, which they suffered by reason of the landlords default in his own premises and it is not lawful to make us pay £100 which we did, every time the landlord damaged us.
The excess we should never have been forced to pay. This was put to the Court of Appeal but unlike the landlord who got their 100 quid back, our multiple times £100 that we paid in the excesses was simply ignored by Court of Appeal, like clause 5(22) as if it played no part in the hearing. On balance this breaches Section 6 of the Human Rights Act, the right to a fair trial. But more importantly this hi-lights as a minor point the way throughout the claimants are being ignored in all the issues. It can be said this minor point proves the bigger picture.
Point 45. Court of Appeal Judgment.
At the point of trespass the landlord owed £39,000 in rent but any rent owed by us was shown to the first Judge, Justice Wilkie and the second Judge Lord Justice Clarke, as proved was paid.
I offered the same receipt of payment to the court of appeal, who said they did not need to see the receipt. So to say absent liability to repair, the landlord broke in peacefully is incorrect in evidence. No rent as proved was owning at re-entry. But as contended if it follows that clause 5(22) was to be implied for the landlord not to void the insurance then not only was rent not owed but £39,000 in rent was paid and unduly enriched the landlord.
Point 46. Court of Appeal Judgment.
The Court of Appeal said that a case for partial unfitness of the premises was never pleaded, which is not true and it is there for all to see in the schedule of loss. The Court of Appeal say’s both experts, meaning surveyors on each side agreed and that is just not true and since they did not even see the reports this is an oddity.
Evidence. Schedule of loss plus the joint surveyors report.
Even the expert forensic accountant, assessed on the partial unfitness element. So this is said now in isolation and is very out of the ordinary by the Court of Appeal and is utterly incorrect. But since we are just dealing here with £39,000 and trespass and interest and further losses to date, in the grounds of appeal which were given permission or at the oral hearing – a lie is just not adequate and can be proved as a lie and this issue of great importance needs to be addressed. Just to add it is strange that this now is the only reference in terms of wording of the insurance policy ever mentioned in judgment yet I handed over 3 copies to each Judge of the policy and it was hi-lighted in yellow for ease of reference to point to all the risks and relevant covers. It has also been put in the relevant papers for the Supreme Court.
Point 47. Court of Appeal Judgment.
Since the original trial Judge makes no reference to why he awarded indemnity costs and in our skeleton argument we say “at least if he said these costs were made from the point of an offer to settle then indemnity costs would make more sense”, it is quite extraordinary here in Judgement at the Court of Appeal, that they now say based on no evidence whatsoever that indemnity costs were based in relation to the £25,000 offer to settle. Incidently that offer was made the day before the 10 days trial hearing two years into the case (so what about the indemnity costs for even the court cases we won at the beginning) and was seen as a cheap trick to save the insurers the cost of the trial. It reflects in no way any of our losses so cannot be used under CPR rules on indemnity costs 44.3-
“indemnity costs are rare and not to be used as a tools with regards to mediation”.
This landlord has never once offered to sit down and mediate. The day before the trial for us to go to that mediation and be really prepared when we were still working on the actual trial preparation, meant we had to urgently pay £8,000 to get a QC to be there as we actually took them seriously and wanted to get it right in law. We represented ourselves at the trial and all the hearings apart from the second oral hearing as ordered.
And for a little laugh for you tonight here is a picture of my 8th Great Grandfather, he's the one on the left, Chief Justice of Chester, William Noel of the Common Pleas Royal Courts of Justice.http://webcache.googleusercontent.com/search?q=cache:O607jO2vEQAJ:www.shakespeares-sonnets.com/Archive/Bench1.htm+&cd=5&hl=en&ct=clnk&gl=uk&client=firefox-a
I was watching a program last night about how the Jews tried to fit in in Paris and it was so sad that they still couldn't be accepted. It resonated with me having been in care and getting two central London art galleries and living a great life but having had all that taken off me I just wonder about stereo-tying people and still treating them badly! When will we all learn? It's just not right or fair!