Tuesday, 28 February 2012


1. There is no viable claim in negligence or other against the landlords.

2. Accordingly the landlord's liability can only turn on a liability under the lease. But there is no term of the lease which can give liability. Thus for instance, there is no landlord's duty to repair, nor a duty to take all steps reasonably necessary to keep the premises fit for occupation or duty to ensure that the premises are free from water ingress, leaks from soil stacks, flooding, and so on.

3. It follows that there is no liability according to principles in Duke of Westminster v Guild (1985)

4. The allegations of unfairness of the trial have no basis at all. On the contrary the Judge appears to have allowed the tenants full latitude to advance their case or challenge that of the landlords. True it is the landlords were represented whereas the tenants were not, but that is not of itself a breach of Art. 6 of the ECHR. Nor is a breach of Art. 6 not to impose a fee cap or to case manage the case before trial, which is all the Judge did. As for the trial window being to short, my own view is that the Judge was if anything too liberal in allowing time for this case.

5. Nor is it relevant that the Landlord ignored requests to have the premises repaired. The injunction not to interfere with enjoyment of the premises does not amount to an obligation to repair and there was no repairing obligation


Wednesday, 22 February 2012

So much for pro bono!

After my case with the Judge taking all our money I had to try and get pro bono and I must say they were pretty useless I felt a slight betrayal there where they effectively did nothing for 16 months too.. Then when they did assess 7 pages of just the second judgment there was no feed back AT ALL!!!! I asked I begged I contacted directly to please let me know about Hargrove but No I am beneath them ... Or the corruption perhaps is something they like you and afraid of... and that is LAW... The law of GOD.. Where is my hope... where where where... Here is the latest correspondence from the grandly named LAW WORKS:

Dear Jo,
Thank you for your email.
I apologise for the delay in getting back to you but I wasn’t sure at first what to do with your request.
It is not our policy to ask reviewers to re-assess their decisions unless the circumstances of the case have materially changed. In your case, it’s not so much that the circumstances have changed but rather that you have some further documentation i.e. some notes of a judgment that the reviewer would have liked to have seen before making his decision.
In the end I decided that it would be best to make an exception to our normal policy and I asked the reviewer if he would look at these documents and consider changing his decision. Unfortunately, his decision remains the same. Further, the reviewer has said that he is satisfied that no further documentation would alter his decision.
I expect that you will be disappointed with this news but I’m afraid that the reviewer’s decision is now final.
I’m sorry we couldn’t help.
Best wishes,
From: Scarlet Maguire Gallery []
Sent: 14 February 2012 11:45
To: Lia Moses
Subject: Fw: Gavin & Anr v Community Housing Association Ltd
Dear Lia,
I hope you are well.
After what seems to be a long struggle I finally have the notes of the first Judgment of the 09/09/10.
I have added my notes in italic to BDB's for ease of reference.
Although they are not the official transcripts they are the incomplete and unapproved notes of Bircham Dyson Bell the defendants solicitors which the High Courts obtained but at least they add some degree of clarity to the second Judgment 22/09/10, which seemed a nonsense impossible to understand in law without the 09/09/10 Judgment.
The High Courts said they could not understand the second Judgment without the first.
I know that Tom Mc Kernan at Edward Angel Palmer and Dodge thought that the case had no merit but he did not have any of the first Judgment so perhaps now the case can be assessed again.
In a case like this ATE insurance can still be gained if legal opinion is good. I have taken the time to assess the laws myself and think the case has much merit.
Much Appreciated
Ms Jo Flores

Wednesday, 8 February 2012

Second Judgment

Second Judgment

Having now taken a day out to read the ‘Claimants Submissions On Liability 92 pages 245 paragraphs.

Relevant differences in Judgment if any:

HHJ Cowell: As I explained in my Judgment of 21/09/10 I did not read the claimants submissions on liability as I thought they were the defendant’s submissions. (The Judge was asked one question by the claimants at the end of 09/09/10 Judgment ‘your honour did you read the claimants submissions on liability?’ to which he replied ‘yes’! It was only after Jo typed up her notes on Judgment and submitted them to be corrected and put a copy of the ‘claimants submissions on liability’ in with her notes, then went to the fees office and paid £40 to ask the question officially that HHJ Cowell admitted he had not read the Submissions and that was all because they had been officially sent (as a desperate tactic) to get to the truth of the matter before the costs hearing where everything could be taken from us. This was done simply because of the way the 10 day trial had been lead and because it was very obvious to the claimants that the Judgment may as well have been straight from the defendants submissions as nothing to our mind showed our case and submissions in any way at all.)

Paragraph 9-11 “I am well aware that when giving evidence witnesses are not there to simply undergo a memory test and that any lapse of memory is not an indication of deceitful testimony” – “I need add nothing”

The document B2/2/145 does not in my Judgment go to any issue that I had to determine. I noticed Jaqui Greene’s approach was different to Mr UK in my first Judgment.

Para 12-25 “It is true that I did not refer to any differences in the point raised in paragraph 17 onwards.”

Paragraph 18 – page A/312 & A/346 19,20 and 21.
Clause 2 sub-clause (1) to (4) of the lease 104 & Clause 2 sub-clause (1) to (4) of the lease 106/108.

In 106 appears to be a nonsense, mistakenly left in or out as in the claimants submissions paragraph 20 & 21.

Two Matters raised and not in my Judgment 09/09/10.

First, the right granted in both leases 2 (3):

“the right of subjacent and lateral support and shelter and protection from the elements for the demised premises”

Second, the mention of a clause in 104 lease only of the tenant’s obligation: Clause 5 (26):

“to pay a fair proportion of the costs incurred (or intended to be incurred ) by the landlord in respect of the lighting, cleaning and maintenance of the fire escape areas”

In my Judgment, clause 2(3) is a grant of ‘easement’ by the landlord to the tenant ‘Guild’. It is the tenants right to repair the ‘easement’ not the landlords ‘obligation’ to do so. (So now ‘rights’ are ‘easements’?!! You can’t make this up!! An easement is specified and is normally in relation to a pipe, apparatus or something which has common use of both parties but generally belongs to the landlord who grants use of it and right then to repair it if you want and the lessor doesn’t want or have to. The demise is ours and has the ‘right’ to be protected from the elements as set out in the ‘lease.’ Rainwater coming in gaps, pray tell how does that translate to an easement? It is beyond the ridiculous to suggest such a thing)

The landlord must not do any positive act that interferes with the easement by removing the thing that provides support or shelter from the elements, but that is as far as this right goes.

And there is not in my Judgment to be ‘implied’ from the ‘obligation’ in clause 5(26) any term that the fire escape area should have any particular quality. (This is quite far reaching for any public body or business establishment then, fire escapes just need a label, they don’t need to be one they just need to say they are one!)

Paragraph 26-52, I have looked again at Mr Hines (the loss adjuster for the UKU building insurance underwritten by Lloyds) report (D1/301-305).

“He was doing what he could on the claimants behalf, just as he was in April 2006. (D2/395). (The first was a material damage claim and second ‘POL’ Property Owners Liability’ claim still unresolved)

After the insurance payment of Jan 2006, previously mentioned in 09/09/10 Judgment, the fact that the insurers took the view that the defendant was at fault (D2/407) does not mean, in my Judgment, that the defendant was in breach of any ‘duties’ to the claimant.

Nor does it follow that the defendant was in breach of a duty to advance an insurance claim on the claimant’s behalf.

I read the letter of the 3rd July 2006 (D2/489 – 490) as a request by the claimants for compensation from the defendants.

It is the insurances response which is described as extremely slow and un-helpful but in the letter the defendant was not asked to do anything about that.
(The Judge seems to be missing the point that it was the landlord who broke the terms of the insurance and they knew they did, the insurance knew they did but we did not know they had officially so as to the point where the insurance would not pay and all agents of the landlord as well as the landlord kept us in the dark about the dispute. Leaving us waiting for 8 years to date to get reimbursed paying out for rent at all times whilst interrupted amounting to £38,000 outstanding in 2008).

I mentioned near the end of my Judgment on 9th Sept 2010 the series of letters mentioned by the Claimant in their letter to me of 25th July 2010, two of which are referred to again in paragraph 39 and many others also feature in paragraph 46 to 48 and the letter at C/181 is also referred to.

It still seems to me that no blame can attach to the defendant for the failure on the claimants part to persuade the insurers to pay them. The claimants by their loss adjuster were in direct communication with the insurer and the defendant did nothing to prevent or hinder it. (We employed him ourselves after 3 years delays as we couldn’t understand what was going on. So how does that get the landlord off their ‘duties’ to make insurance claims as set out in the lease? And further to mitigate any losses by acting in a timely manner also in the insurances and the lease and so ‘breach of duty’! Our loss adjuster says he couldn’t understand why the landlords ‘excess’ liability insurers Royal and Sun Alliance would not accept liability for the landlord and believed they just wanted to see how deep our pockets were in court hence the ‘probable fees’ note beside the in total £130,000 figure set aside to pay us by the loss adjusters findings. The landlord collaborated with the insurers not to pay us hence ‘defending a claim’ with their insurers and dragging back in the building insurers and then having a satellite dispute. As Alan Harris put it, our loss adjuster, ‘none’ of them wanted to pay’!!).

The loss adjuster may have experienced some lack of information from time to time from employees of the defendant but that is a far cry from the defendant being in breach of ‘duty’ and even if it were, such lack of information did not result in the refusal of the insurers to pay the claimants what they were asking for. (Major delays, missing information and deceit) D3 669,672,696 and 710.

Again the fact that the insurers took the view that the defendant was not covered, even on the basis that the defendant ought to have remedied the defects earlier and so was not covered by the terms of the policy does not lead to the conclusion that the defendant acted in breach of duty to the claimant. (‘ought’ to have remedied earlier, breached the terms, yet still had no ‘duty’ so what about ‘contract’ in the leases?)

The defendant’s duty was in my Judgment as ‘neighbouring’ occupier, as I explained in my Judgment of the 9th Sept by reference to ‘Guild’ Case.

I now turn to the particular matter of complaint.

1st Waste stack pipe leak 104:
In my Judgment of 09/09/10 I assumed that the leak was reported in Sept 2004, I fully appreciate the fact it took six months to remedy. The documents themselves do not answer when did the defendant come to know or when ought the defendant have come to know of the actual leak? Which meant the defendant had then to repair it promptly as in Guild Case?

I was not dealt the task to discover the cause of leak and did not find claimants (This case hangs on knowledge of repair! Points of repair- waste stack pipe 104, 6 months and prior to that only 3 months before a leak in the same place so ‘knowledge’) accidently put nail in it as suggested by the D’s. (Top corner of the art gallery no picture hung there ever so impossible suggestion proved wrong)

My task was not to find out when the defendants ought first to have known (serious?) the source or ought to have been first known to the defendants.

Claimants in no way to blame as clearly hinted by D’s.

The waste stack pipe next to 106/108. I decided with all the evidence that the D’s ought to have known the source of the leak (contradictory to earlier statement that he is not there to decide when the D’s ought first to have known source) three weeks earlier than they did, so effectively a finding of ‘negligence’.

Paragraph 106 of the claimants submissions dispute as to which flat the flood came from. In an attempt by the D’s to hide the truth in an attempt to avoid liability for the poor state of repair and maintenance of the flats above; Claimants allege paragraph 108 cistern overflowed due to poor state of repair in flat 3 (C/296).

There was in my Judgment no evidence that the flood was anything other than an accident and no evidence D’s caused flood or responsible through any lack of repair, even assuming C’s account to be true C1/296 and Mr UK being incorrect.

The C’s paragraph 109-128 complain but because ‘cause’ of flood stopped promptly (contrary to paragraph 126) the law in ‘Guild’ case applies and the complaints do not confer a ‘cause of action’.
In the case of insurance I do not intend to repeat.

Reference C/111 witness statement of carpenter and D1/125 attitude of Jaqui Greene re: risk of trouble from the tenants.

I accept pavement lights (glass bricks) were not demised submitted correctly by the C’s in paragraph 130.

I still adhere to the conclusion expressed in my 9/9/10 Judgment my view about 2(3) of the leases. I should add that the covenant for quiet enjoyment and the doctrine of derogation from grant do not afford a remedy.

The defendant has done no positive act affecting enjoyment or making the premises less fit for the purposes for which they were demised and that observation also applies to the issue about the fire escape.

The electricity cupboard leaks:

Judgment 9/9/10 where I said it was impossible to say if D was ever in ‘breach of duty’ described in ‘Guild’ case, because at no time did it know or have the means of knowing where the leak came from, so cannot be said to have failed to remedy it.

Thames in contrast knew where leaks were from (they did not!) and C’s submission at paragraph 150-172 do not cause me to alter what I said on 9/9/10.

(So fact that leak in cupboard and not investigated with ‘means’ which they had is ignored. Thames investigated pavement numerous times and acted properly. Insurance triggered 3 years later.

Sunday, 5 February 2012

Re my judgment and the notes... quick correction

 Identity of Kingsbury recently discovered by C’s and works done by Kingsbury Construction on  01.11.04 (and not 01.01.04 sorry) in relation to the glass brick pavement (lights)
Difficult to argue Guild that the principle in ‘Guilds’ case cannot apply and any landlord is well advised to repair and that appears to be the attitude of Jaqui Greene. In the very nature of the material securing the pavement lights that may leak from time to time unlike a water pipe. If pipe does leak clearly alerts occupier to urgent need to remedy and remedy pipes require jubilee clips and degree speed and skill not readily effected by tenant. But because a tenant in the position of C’s in this case could so readily reach the pavement lights to do the repair and thereby relieve D of the ‘duty’ the tenant could very easily mitigate damage. Tenant would be better aware than D in this case that leaking!!! Make these observations so that the principles of law are not detached from reality.

D’s short answer in this case Caveat Lessee

Satisfied defect at the time of grant

May 2004, Mr UK first response, landlord not responsible and that is another matter which is debateable.

First written evidence Jaqui Greene emails 15.10.04 D1/125 and 25 ND 25.10.04 after she had written those one finds works were done by kingsbury.
Identity of Kingsbury recently discovered by C’s and works done by them 01.01.04
‘Notification’ that Kingsbury was the contractor given to D’s by Sept 2004.

Wednesday, 1 February 2012

My Judgment and my notes and the corruption to date

31st Jan 2012

Today I spoke with the transcript company ‘Wordwave International – Meril’. They informed me about the transcripts which have been paid at public expense;
14th Nov 2008
28th Aug 2009
25th March 2010
22nd Sept 2010
9th Sept 2010
They say that they have been transcribed (we only got the 22nd Sept of the 2nd Judgment of 5 pages) but that the CD, Audio, tape of the Central Judgment on the 9th Sept 2010 has not ever been sent to them.
They say it would take 2 days to transcribe if I can get the Central London County Court (16 months later I might add) to send the CD.
I spoke to Parabin at the CLCC and she asked me to ask Meril to put request into an email.
I asked Meril and asked that I also get a copy of the 14th, 28th and 25th transcripts that I am still owed yet have never had even though they have been transcribed.
Meril said I have to ask the CLCC for the copies and Meril will send them to me or else it will cost me.
I asked her to ask the CLCC herself in the email requesting the CD, Audio while she was sending it anyway.
So all is well, now we know the story and hopefully we should get the ‘Judgment’ soon instead of relying on the other sides solicitors incomplete notes on Judgment sent from the High Courts a few weeks ago because they could not get the transcripts 16 months later from the lower courts who insisted we needed them in order to ask for ‘permission to appeal’ a process which should normally take just a few weeks according to the civil procedure rules, citizen’s advice bureau and the organisation ‘Liberty’ after the Judgment on the 09/09/10. The two organisations quoted had never heard of such a condition being made.

In the mean time it has been finally useful to have the solicitor’s incomplete notes and Jo has just finished making sense of the Judgment even though she is not legally trained.

These are her notes on the Judgment. It is the first time she has been allowed access to it since it was given in 09/09/10. This is the Judgment that took her shops away that day and she was charged £400,000 for the other side’s legal costs too.
Her own notes did not have the exact laws used since she is a commoner and the law bits were said very fast. The notes of the other sides solicitors were requested by her a few days after the case as it is in the ‘Civil Procedure Rules’ that she can have them notes as she is acting in person. As for her own notes she asked for the Judge to add in the law parts correctly as she noted most of it but she missed a lot too due to their speed but there was no reply from the Judge who would normally be asked for this kind of thing by any solicitor who forwarded their notes for any correction.

In summary Jo shall demonstrate that the Judgment of the 09/09/10 relied for the most part on the defendant saying that they ‘knew not’ where the ‘source’ of the leaks came from and the Judge accepting this as an explanation for these issues of disrepair suffered by her in the case of Gavin & Cracy v CHA & OHG;

Two leases were obtained by Jo who has worked in children’s right’s since 1987 lease one was in 2000 and the second lease of the shop next door was in 2004.

The businesses were Scarlet Maguire art gallery at 104 Cromer Street and spaceshift.. a contemporary multi-functional space available for hire at 106 to 108, Cromer Street, St Pancras International, London WC1H 8BZ.
, both were social enterprises aiming to establish an independent youth economy and both were highly refurbished by the claimant three years before the arrival of EuroStar and the thriving business community.

The landlord was at the time Community Housing Association registered social landlord who had been given 17 million pounds public money in 1999 to refurbish the building so it was effectively a new build, therefore the new build regulations applied that the building be fit for 7 years and ‘buyer beware’ caveat lessee cannot therefore be pleaded for lack of ventilation. £400,000 specifically for the six shops on the street was further granted from the Kings Cross regeneration partnership (Jo knew of this as she had applied for an awning canopy for Scarlet Maguire and was told the money had been given to CHA). At the time of trespass and eviction One Housing Group had just merged with CHA for a few weeks and new OHG management harassed and trespassed to effectively rid CHA of the ongoing claim for ‘liability’.

106 premises – rainwater leak – 7 months to stop the water ingress

104 premises - stack pipe leak – 4 months to stop the foul waste ingress

106 premises – stack pipe leak – 2.5 months to stop the foul waste ingress

104 premises – Flooding from above – 7 months for full ceiling reinstatement

106 premises – rainwater leak – 4 months to stop the water ingress

106 premises – rainwater leak – 24 months and fixed only after repossession

Electricity Cupboard between premises – pipe leak in ceiling – 3 years to locate

106 premises – Broken fire panel and smoke detectors – claimants replaced

106 premises – Dangerous wiring throughout spurs not ringed– claimants fixed

106 premises – No flooring paid for by public. Claimants had to put one down.

106 premises – No security shutters to date although paid for by public grant.

Between premises leading to fire exit – No emergency lighting 3.2 years to fix

106 premises - No ventilation or airbricks rendering the space illegal - not fixed.

Between premises – Fire exit locked and door swinging inward – 3.2 years to fix

The entire building - Commercial & residential tenants, no fire certificate to date.

Both premises – Breach of duty and of contract on leases regarding building insurance, claims not being made, making the building insurance void, so no payment for claimants when interrupted in business for over 10 years on and off.

Harrassment, bribery, fraud, trespass and eviction plus putting the claimants through a to date three years court case (never mind an outstanding 8 year claim on the building insurance) to defend the claims and be reinstated to the premises.

Insurances never paid to date and shops unlawfully taken by force.

Corruption at the trial with this ‘public body’ with many connections to the judiciary not being recognised to date as is now European Law that they have influence so a Judicial review needed.

Still dragging us claimants ‘acting in person’ through the courts without legal representation as the insurances are paying their ‘defence’ (a commercial decision they are allowed to take FOS investigating) ‘legal costs’ and not ours as they have ‘triggered’ the ‘defending a claim’ clause when it is us that is the ‘defendant’ since we were unlawfully evicted.

The building insurance has no cover for ‘landlords and tenants’ disputes (of trespass) but is defending them anyway to save the claim on the liability insurances because it is in their interest to leave us on our knees.

The notes of 9.9.10 judgement of Bircham Dyson Bell solicitors LLP the defendants (landlords and insurers) solicitors.

My notes will be in italic in response to the other sides solicitors note on the HHJ Cowells Judgment 09/09/10 which was sent to me in the last few weeks by the Civil Appeal Court stating that they were having trouble from the lower courts obtaining the Judgment so have contacted the other sides solicitors for their incomplete ‘notes’ to now speed things up and that the Lord or Lady Justice will look now at the Judgment and make a decision as to whether we have ‘permission’ to appeal.

I have had no legal help at all so if I am wrong re my interpretation of the law in the following I don’t know it yet that well as only had it a few weeks and could do with someone telling me but to me it seems just like common sense in the application of the ‘laws’ the Judge has stated that he used. So please read the ‘law’ part below of about 10 laws used on just one page below, as it seems not as difficult to understand as it initially looks to read:

Case LAW relied upon by His Honor Judge Cowell on 09.09.10 Judgment;

Vural – Lessor (landlord) owes ‘duties’ – lease implies ‘contract with insurers’

Barrett v Lounova – If exterior of the premises is demised (in our lease) then ‘implied obligations’ arise. If not it is more helpful to look at it as the landlord is the ‘neighbouring occupier’ – ‘Liability’ (fault) is as described in Cockburn V Smith and mentioned in Barrett v Lounova, where “the owner is in possession and control” so it is appropriate to regard as the ‘neighbouring occupier’ rather than landlord – Barrett v Lounova – Business Efficacy – Correlative Obligations –

Jackson v Watson – Defect faulty construction

Clerk and Linsell – Escape of water – “reasonable time after ‘notice’ is given”

Gordon v Selico – Pleaded as an ‘implied term’ and considered more appropriate to look at it as such

Sedleigh v Denfield – “Nusiance” – Caused by the ‘state of the things’ on ‘neighbouring’ land, ‘knowledge’, ‘fails’, breach of ‘duty’.

Duke of Westminster v Guild – Drain between claimants shop and owners land. Claimant had ‘easement’ rights (i.e the drain can flow between). However the claimant had right to repair it too and the landlord did too but did not have to as had no ‘repair obligation’ to. Claimant fixed and did not pay the rent so landlord could pay a fair proportion. Claimant had no right to stop his rent.

Hargrove Aronson v Hartopp – Claimant gave the landlord ‘notice’ to clear a gutter above that may overflow and cause damage. Gutter not cleared and after two days ‘notice overflowed. It was held that damages were given to the claimants as they had ‘given notice’

Duke of Westminster V Guild – “Cause of Action” – “Duty of Care” with references to Lord Millet’s Judgment in Southwark v Mills pg 25 F-G –

More references to ‘Guild’ in Lord Justice Slade’s Judgment in the case of “Hargrove” Aronson v Hartopp and in the case of Cockburn v Smith. “Hargrove” Aronson V Hartopp and Cockburn v Smith can be summarised in ‘Woodfall’ 28th Edition 1-1469 page 621 –

In the case of Cockburn v Smith it was similarly the case ‘liable for damages suffered by her’ but

Lord Justice Scrutton ‘modified’ this, as ‘preferred not to say’ whether the ‘duty’ arose out of ‘contract’ or a ‘duty’ to take ‘reasonable care’. In any case all this can be called the ‘Guild’ principle for short.

Woodfall – ‘Damage’ – Lessor (landlord) ‘retains control’ and ‘maintenance’ is necessary for the ‘protection’ and ‘safe enjoyment’ so the ‘lessor’ (landlord) has ‘lessor obligations’ to take ‘reasonable care’.

D’s Solicitors incomplete ‘notes’ of Judgment of HHJ Cowell 09/09/10 at the Central London County Court

I should briefly explain how this litigation began. D’s sought to forfeit the leases on the grounds of non-payment of rent (no rent outstanding as had paid £6,000 quarter up till Jan 2009 and D’s claim to have lost the cheque. History shows claimants always paid rent in all 9 years) by peaceable re-entry on 29th Oct 2008. C’s went to court on an ex-parte hearing before Judge Clarke on 4th Nov 2008 where he granted interim relief (two successful high court injunctions) permitting to remain and further relief on terms (C’s be given continued injunctions against the landlord with terms for ‘quiet enjoyment’ and a request by the Judge that the matter be dealt with at speed so he gave 3 weeks to draft ‘POC’ Particulars of Claim and it was to be dealt with at the Central London County Courts) on 14th Nov 2008. It was directed that they should specify the ‘nature’ of their claims against D, which was then understood to such as to amount to a counterclaim which, if sufficient, would indicate that there was no rent owing at the date of the forfeiture.

I go back to the matters with which this judgment is concerned

First April 2004 gaps between the glass bricks in the pavement construction immediately above the basement of 106-108 let water through – photo G1/71 this shows repairs being done at a much later date, 15th Oct 2006. Gaps let water through. In Sept 2004 repairs to the gaps were done by Kingsbury Construction, the company which had originally inserted the glass bricks and dealt with the gaps. Later on 20th Jan 2006 the insurers paid £150 having taken into account the excess of £100 for what… briefly described as rainwater ingress, that being one of four items paid. Details at D3/75 (very misleading ‘opening’ and somehow indicates the pavement ‘gaps repair’ costs £150 when it costs thousands of pounds. HHJ Cowell is talking of one area of a outstanding patch repair payment to the inside ceiling paid for by the claimants and then later a ‘material damage claim’ on the building insurance finally paid for in Jan 2006 when the D’s put in a shoddy claim in Aug 2005 that reimbursed this material damage claim, alongside three other items the claimants were forced to pay for including a £3,000 ceiling replacement because D’s did not fix or further because more delays would put the claimants out of business). Pavement not demised to the claimants so the C’s do not have a ‘duty’ to repair. That is not to say that anyone else does but I will consider what, if any, obligation rests on the D to do so and the exact extent of that obligation.

Page 7 of notes on Judgment– Waste stack pipe – 104
Particulars of Claim (POC) 15-19 & 50 (xii and xiv)
Schedule Page 21

Sept 2004 one of the waste stack pipes which carries sewage from flats above and which passes close to the rear wall demised to the C’s at 104, damaged the wall and caused the odour of sewage to permeate.

‘Hint at “cause of action” relied upon appears in paragraph 5(i) – (iv) and 6.
Word ‘negligence’ appears but difficulty to see what particular allegation could be made for none ‘expressed’. D’s (defendant’s) point  ‘one thing ‘knowing’ other thing ‘locating’ source’. Question, whether reasonably prompt action taken once ‘cause of leak’ discovered and whether ‘ought to have been discovered earlier’.’

HHJ Cowell uses; job card 27th April 2004!!!

(Completely different job card to the one for this leak, there was another leak 5 months earlier in the same place so the defendant ‘ought’ to have known source of leak. No claim for April/May 04 business interruption made on this leak as fixed promptly).

Appointment made 5th May 2004!!

Flat 3 (above back of gallery where flood occurred, flat 2 is above front of gallery where no leaking ever took place)– 12th May 2004 wall tiles repaired or ‘due to be repaired’. Wall tiles completed on ‘Oct 2004’! – None of this mattes as not from flat!

Reported – ‘Sept 2004’ – “probably” the case the D’s ‘thought’ tiling would cure it.
(Use of word ‘pinhole by D’s and crack by C’s) .HHJ Cowell mentions ‘large organisation with staff to fix’ (important as in the ‘means’ to fix is set out in the leases clause 7 to repair with ‘speed’ subject to the ‘means’ to do so)

Applying the law in ‘Guild’ case, ‘in all the circumstances’ D’s ‘not in breach of “duty” because ‘inspected’ and did works in flat above in ‘bona fide’ belief, ‘source’ lay there and because on ‘discovery’ real cause, remedied leak “reasonably” promptly (31st Jan 2005!). Simply add that ‘fortunately’  (joint building insurance which C’s (claimants) paid for too as set out in the contract of the lease) had ‘insured’ against ‘physical damage’ and D’s agents assisted C’s to claim and receive in their name (completely untrue no claim ever made and no money received either on this leak as D’s fixed it albeit 4 months later with their ‘mean’ which were a whole residential repairs department although should have put in a building insurance claim and a private contractor brought in to trace and remedy ‘promptly’. However a ‘liability’ claim for business interruption under the ‘POL’ ‘property owners liability’ section of the building insurance and ‘Cessor of Rent’ under the cessor of rent because the building is unfit for trading covered in the building insurance policy, claim is still outstanding to date and rent was paid by the claimants while they could not trade), insurance money.

In relation to the point above stating that ‘no cause of action’
has been ‘expressed’ only a hint in reply which you can have a whole section thrown out for right or wrongly, the ‘cause of action’ was clearly expressed on several occasions but just to say the lawyer Vikram Sachdiva whom the claimants employed briefly to make the POC clearer on request form the D’s and the Judge when HHJ Cowell raised the point about clearer POC in the early days of the trial in 2008, Vikrams’s amendment were not accepted see in bundle A tab 2 pg 14. In an email from Vik to the Judge 19th April (plus see order) 2010 he states; “you disallowed the amendments because in your view it did not assist you further in clarifying the claimants case which had been explained to you orally at the hearing; and also because all claims made in the ‘amended particulars of claim’  were ‘already’ contained in the original particulars of claim apart from the ‘statutory harrassment’ claim. It is entirely appropriate that that reasoning is reflected in the preamble. Also: “you allowed the claimants to rely on the schedules as an amended statement of case”. No application for costs therefore no juristiction to make such an order now.

In relation to the head of this point where HHJ Cowell stated there was ‘no cause of action’ we would like to spell out what is in paragraph 19 of the POC that is as he says only a hint at cause of action. Though in not drafting POC properly can make a case rightly or wrongly thrown out we would say that alongside the order and the amendments that were thrown out the POC are very clear;

Paragraph 19 POC in relation to this incident the cause of action states “in breach of the leases” and the particulars (viii) and (ix) clearly state ‘failed to make claims and failed to keep apparatus in good state of repair’ as the cause of action so could be both “contract” as in “lease” or “duty of care” to ‘take reasonable care’ Guild for short, all causes of action. Duke of Westminster v Guild, Hargrove ‘failed to clear out after a few days notice of slippage’ and Cockburn ‘liable for damages suffered by her’ and summarised in Woodfall  ‘Lessor retains control, maintenance necessary for the protection and ‘safe enjoyment’,’ lessor has ‘obligations’ to take ‘reasonable care’. Held ‘breach of duty’ and the question in our case is, what is reasonable so if comparing to Hargrove ‘notice’ of damage was just a few days! Just to add that Lord Justice Scrutton modified as ‘preferred not to say whether ‘duty’ arose out of ‘contract’ or to take ‘reasonable care’

Further or alternatively and for the avoidance of doubt ref: Vikram Sachdiva’s email where 3a-d and 3A and 3 B where no defence amendments were required, in the amended particulars it clearly ‘expresses for waste stack pipe 104, Bundle A – Tab 2 – page 14; 3A “There were express terms of both leases that the Claimant should have ‘Quiet Enjoyment’ of 104 and 106 as against the landlords and all persons claiming title through the landlord”. Also 5. 6. 7. 8. 9. In the POC for example 8. “further and or in the alternative, the facts and matters set out herein above and in the said schedule (7.) constitute an “Actionable Nuisance” . ‘Duties’ owed to make insurance claims page 18 POC and (all expressed) (i) Quiet Enjoyment (ii) Lease Breach 7.(2) (iii) Failure To Make Claims (iv) Repair – Lease Breach (v) Nuisance.

7th Feb 2005 – Leak into bathroom – No sooner than that was dealt with, then another leak occurred on 7th Feb 2005.. small drop in bathroom in basement of 106 next to rear wall was first sign of the leak in another stack pipe which served the flats above and which passed close to the rear wall demised to the C’s… That leak stopped 26 April 2005.

Para 50 (xv) and (xvi)
Alerted D’s 7th, 8th and 14th Feb 2005.
Visit Mr UK 28th Feb 2005 – Works order raised – “doesn’t matter the source”
(21 days already after ‘escape of water’, reasonable time after ‘notice’ ‘Clerk and Linsell’ plus prior ‘knowledge’ of pipes bursting on the site of the demised next door a week before so ‘ought to have known source’ and investigated ‘trace and remedy’ as set out in the building insurance policy and clause 7 of leases)

Reasonably clear a month later that (flat 1. above who reported a leak to their ceiling so how that had any bearing to the shop below remains to be seen as their floor not effected and that was fixed 28th Feb) not cured cause of trouble because the 29th March (50 days later and saturating the wall now 9 feet of foul toilet sewage. On 29th March Mr UK had now only attended the demised twice claiming he was attending to leaks above) leak reported again.

I am not sure if on 1st April or 4th April it was the Easter weekend before that, (irrelevant emergency repair should be fixed in 48 hours if foul) clearly damp on the wall (sorry to say but it was brown excrement see photos hardly described as damp!)

6th April further complaints so Mr UK raised order for 8th April then 11th April, for replacement of duct casing and reinstatement.

By 15th April 2005 show brown staining! Benefit of hindsight “naive” belief would dry out and not “spread” because we now know that it was a serious leak in the waste stack pipe.

A ‘carpenter’ attended on the 8th April – Nothing.
A ‘plumber’ appeared also nothing.
A ‘plasters’ the day after the photo was taken (25th April?)
25th April casing taken off
25th – 26th Ghastly flood of foul material.
29th April had been done!

(No mention of Jo begging the plaster to take down the wall to see if there was a leak behind as had been the case next door and that it was not his job but every contractor was stunned with the repair and refused to touch the job. Nor that on discovery of the cracked stack pipe in the premises wall in the basement and above on the shop floor which wall was too taken down as one could see crack was coming from above, that the walls were simply left open and despite emergency request, emails and numerous calls that evening for open pipe to be fixed that day it was left overnight and despite Jo’s anxious efforts to prevent a foreseeable foul waste flooding it of course occurred damaging the newly laid wood floor with foul waste as far as the corridor downstairs and into the kitchen bar upstairs on the wood floor on both).

Renovations much later because amongst other things, as insurance matter, estimates had to be provided (why different to April 2004? Mitigating losses is what the landlord should have done and eventually voided the policy over, that and making claims too late. Quotes were not even asked so I don’t know what HHJ Cowell is saying estimates were needed as an excuse for, for they simply just left the walls open for months after they stopped the leak. It was only after the flooding next incident that they even notified the insurance as lumped all claims together as we had the walls fixed ourselves at the same time as fixing the ceiling in Oct 2005 and were not reimbursed until Jan 2006 for the material damage claims, which incidently is the only reason we were paid direct from the insurers as they should have no contact with us we deal with the landlord they deal with the insurers as in the lease and they receive monies as they should be the ones with the ‘means’ to fix and then they get their money back later, not us as was the case for direct contact with the loss adjuster. Why were estimates only asked for after the next flooding?)

Letter 12.08.05 seeks compensation £10,000 (yes because Jaqui Greene the D’s commercial manager explained to Jo privately that the excess was £25,000 and this was a difficult claim, so Jo was being helpful with the request and added in other things that would make up the difference as to the claimants actual losses to date which no one was appreciating in terms of equity, hard cash had been and was continuing to be lost, lots of sleepless nights waking knowing one was being robbed and still paying rent and business rates on a daily basis and that is real money which is agonising for a small business to suffer such a financial burden while all others dragged their feet in indifference with all the time in the world!!)

Eventually polish builders did the works to the ground floor Oct 2005. Insurance payment followed 2006.

Held in my Judgment was sufficient (perhaps he means notice?) at beginning of April 2005 to alert Mr UK to realise that the waste stack was the cause of the leak.
1.     Only two months before leak in similar place at 104
2.     Leak even if was Flat 1, had been cured a month before on 28.02.05
3.     Despite his evidence that he didn’t smell anything beyond damp there is sufficient in C’s evidence to indicate that there was a smell denoting foul water and the 15th April photo’s support the evidence.

So 1st or 4th Mr UK should have raised an order not just for the renewal of casing, but for removal and sealing of any leak and thereafter renewal. And had that been done by the end of the week 8th April a delay of 3 weeks would have been avoided.. C’s is “good” for loss suffered on account of that 3 weeks delay.

Means of knowledge was with Mr UK on 1st April or 4th April (why not Feb 28th when repair to ceiling fixed of flat above or 7th Feb when they had knowledge of same occurrence next door the week before and why not 48 hours later on the 9th as in Hargrove and  because of health and safety regulations and why not because no insurance claim was made to trace and remedy breaching the insurance on the leases?).

I do not find that D in ‘breach of duty’ simply by reason of the leaking, such things happen and insurance (when was the insurance alerted? Contract!) is there…. Was a failure to remedy the leak from the time when ‘ought’ to have appreciated was waste pipe… (like immediately the excrement showed) by the time ‘had means of knowledge’ .. location waste pipe known ‘particularly’ well by D’s surveyor. No ‘breach of duty’ of D on ‘Insurance’ claim. D’s employees responded!

Question ‘Reasonable Care’ “Responded” what is that in law? Woodfall 28th Edition 1-1469 page 621 ‘protection’, ‘safe enjoyment’, ‘reasonable care’?

Hargrove 2 days ‘notice’

‘Knowledge’ prior repair a week before at 104?

‘Insurance claim’ none put in until August 2005 should have been put in, in Feb 2005?

All Expressed  causes of Action in POC

(vii) Negligence on repairs
(viii) Negligence failure to make claims
(ix) Failure to maintain pipes in good state of repair
(xiv) Nuisance
Contract of lease
6 (5) ‘Landlords Liability’ in the leases ‘implied’ vice versa that if tenant does anything to void insurances and does not mitigate losses the same is ‘implied’ as applies to landlord. Insurance stated the landlord broke the terms of the insurance by not mitigating so that they believed POL was not payable and therefore refused to pay triggering the second ‘liability’ insurers RSA (excess POL Royal and Sun Alliance) who argued with UKU and said it was a joint claim and then they all didn’t want to pay so took the claimants through a protracted presentation of the claim breaching pre-action protocol.)
7 (2) The word ‘other than’ (in cessor of rent) means all monies are paid from the insurances to the landlord.
Unusual if tenant is put to paying to mitigate losses on the building repairs that are outside of their demise. Plus there was no claim from the claimants as HHJ Cowell suggests for MD Material Damage.

Clerk and Linsell – Escape of Water – ‘reasonable time after notice!!’ (same day 7th feb ‘notice’ proved! Tort - ‘Nuisance’!

Hargrove: ‘Notice’ Warning of flooding when wall opened up! Flooding of foul waste occurred, with damage suffered to her health, clothes the next day, materials, floor and mental health.

Breaches in Law

Quiet Enjoyment – Woodfall
Contract ‘breached lease’
Vural – Dragged their feet with the insurances
Damage – Where the lessor retains control maintenance necessary for the protection, safe enjoyment, lessors obligation to take reasonable care.
Wood fall + Barrett v Lounova + Cockburn

The landlord wants to look at themselves as neighbouring occupier as in Barrett and Lounova but in that case Business Efficacy comes into play and there are correlative obligations to ensure that.

Vural – Lessor owes duties, lease implies – contract with insurers
Clerk and Linsell ‘escape of water’ reasonable time after notice
Sedleigh – Denfield – Nuisance – Caused by the state of things on the neighbouring occupiers land, knowledge, fails, breach of duty
Scrutton LJ Modified preferred not to say if duty arose out of contract or duty to take reasonable care.

If no ‘duty’ arose how can HHJ Cowell award ‘damages’? Cockburn liable for damages suffered to her.
Tort – Smell
Cessor of rent – nuisance or modified from LJ Scrutton ‘contract or duty’ suggest both.

Means of knowledge ‘He had ‘known’ on 1st or 4th April says HHJ Cowell but also says similar at 104 so means of knowledge we say on Feb 7th 2005.

Insurance claims D’s ‘responded’ since HHJ Cowell did not find ‘breach of duty’, as seeks to repair, remedy however the upstairs repair was done by 28th Feb and Clerk and lindsell says ‘reasonable time after notice’ so what on earth in law is the word “good” for three weeks referring to exactly? What law is ‘good’ exactly with reference to insurance?

POC and cause of action made clear

(i)            Quiet Enjoyment
(ii)          Breached leases failed to comply with paragraph 7;
“all convenient speed to lay out and apply in rebuilding repairing or otherwise reinstating”
(iii) Defendant expressly obliged to effect claims on insurance policy promptly.
(iv) Instigate repairs and remedial action promptly, risks covered by building insurance
(vii) Negligent in delaying repairs causing increased damage/loss of business
(viii) Further negligent failing to effect promptly or at all claims on the insurance causing ongoing damage/loss of business
(ix) Failing to keep pipes in good state of repair in neighbouring flats when foreseeable damage would be caused.

Next event flood at 104
POC Para 24-27
Particulars 50 (xvii) and (xviii)
Insurance mentioned at paragraph 28
Schedule 22 -4
Reply first document that ‘hints’ at ‘cause of action’ in ‘breach of leases’, ‘negligence’.

On 24th June water from an open tap or leaking cistern in the flat above inundated 104 about a week before an exhibition. The replacement of the ceiling was finally done in October 2005 and the cost of that, after deducting £100 and other related costs, was finally paid by the insurers directly to C’s on 20th January 2006. This item was £3,441.65 cheque directly to C’s.

Also sub-plot said floor damaged by the incident
POC – 29-32
Particulars – 50 (xix)
Schedule 24-6

Flood on 24.6.05 was an unforeseeable accident
Mr UK’s knowledge gleaned from others
No fault on D’s part
Whether fault of occupier, insurance was interested in that.
No ‘cause of action’ in respect of the matter.
Repairs done very promptly and largest element of payment made by insurers
It was after the insurers paid out there were complaints about the floor.
Suggestion that C’s should have included
Because no liability attached to D’s because employees assisted rather than hindered. I accept D’s final written submissions.

There are two job cards that relate to this flooding they are 116853 for 05.06.05 and 1168820 04.04.05 both in reference to Flat 3 (and show timely dates with the incident of flooding in 24.06.05) and not Flat 2 and they show that the flood was foreseeable due to outstanding and ongoing repairs as was typical with this landlord taking months to repair and complaining of lack of access. They therefore failed to keep the neighbouring flats and their pipes in a good state of repair. As evidence showed this clearly at the time the loss adjuster was investigating POL liability they concocted a story about the leak coming from Flat 2 and blamed it on the neighbouring occupier leaving the taps on when in fact he was in hospital. They went as far as to make up that a ficticious social worker entered the flat to turn the taps off but could supply no name or evidence of this. This laughable story has proved in the case many times to be undone as a pack of lies to avoid liability included the loss adjuster stating to the insurers that the surveyor Mr UK was leading them up the garden path. It must be noted that although HHJ Cowell decided in the end that it did not matter which flat the flood came from as he judged the flooding as an ‘unfortunate accident’ covered by the insurances and said that the D’s did not stand in the way of the C’s claiming on the insurance and assisted, this fact remains untrue. The flood also damaged all the stock in the next-door shop as it saturated to their basement from the shop floor ceiling. They suffered months of foul smells, damp, mould and because they did not have the ware with all to challenge the landlord they have never had any repairs effected to date nor have they been compensated for their losses to date 100’s of saree’s to date. I might add other than the ceiling replacement which we paid for as it is a white art gallery and mould growing out of the walls and into the paintings forced us to close the show and have the ceiling replaced so apart too from some stationary stock damaged nor have we. Three pieces of artwork were damaged and should mould grew into the back of them during the show. We had to pay the artist for them.

Mr UK states he visited the Saree Palace at 9am and our shop was locked. Did he notice on arrival as we did that the windows had water all over them at 104. He had ‘knowledge’ of the flood did he notify the insurers?

The eventual curling up of the floor tiles was foreseeable for the D and for the loss adjuster who must know unlike us at the time that this can be consequential damage suffered later. It was therefore a straight forward addition to the claim. When the rotten tiles were removed in Jan 2008 as the landlord paid no attention to our complaints so we took them up the floor was mouldy. Jim Gorman of the D’s took photographs in Jan 2008 and later claims to have lost them when the UKU building insurers asked for them after the D’s dragged there feet yet again making a claim for the floor. The world’s most famous damp surveyor Mr Mike Parrett bore a hole into the floor to check for seepage and found and photographed that the floor underneath had too been flooded. The report paid for by the C’s was available at the court trial.

HHJ Cowell  states somewhat repeatedly that we have no cause of action throughout this case. The cause of action is clear in POC and cause of action made clear

(i)            Quiet Enjoyment
(ii)          Breached leases failed to comply with paragraph 7;
“all convenient speed to lay out and apply in rebuilding repairing or otherwise reinstating”
(iii) Defendant expressly obliged to effect claims on insurance policy promptly.
(iv) Instigate repairs and remedial action promptly, risks covered by building insurance
(vii) Negligent in delaying repairs causing increased damage/loss of business
(viii) Further negligent failing to effect promptly or at all claims on the insurance causing ongoing damage/loss of business
(ix) Failing to keep pipes in good state of repair in neighbouring flats when foreseeable damage would be caused.
    (xvii) In June 2005 the Defendant failed to remedy the      damage in the first premises caused by a burst toilet cistern in a flat above which they owned. The ceiling of the art gallery had to be replaced. The Defendant failed to effect repairs. As a result the Claimants suffered interruption to business from June 2005 to January 2006 and had to effect repairs to the ceiling themselves.
    (xix) In January 2008 as a result of the aforesaid cistern bursting the flooring of the first premises had to be taken up. The Defendant failed to effect any repairs/replacement flooring and/or any insurance claim in respect of it. The claimant’ business was interrupted from June 2005 to the present.

Also in the lease clause 7 “means to repair” we provided evidence in court that the D’s contractor FWA were also the contractor of the Ministry Of Defence and could easily effect ceiling replacements as set out in their website.

Instead without the C’s paying for the replacement ourselves the D’s would have left us to it as they did next door and the only reason we were issued with a cheque directly was because we had paid for the job to be done ourselves. The excesses we paid therefore are still owed to us as we were not the ones to have to pay them, if the D’s had simply done the repair and claimed on the insurance at a later time as is normal. We pay the landlord a fair proportion of the insurance as set out in the leases and they do the job or get in private contractors to do the job if they don’t with a full residential repairs department have the means. The flood was the neighbouring occupiers flood from a faulty cistern so the excess cannot be ours as we don’t have the flat upstairs demised to us.

Further we suffered harassment from OHG and from Woolf Simmond’s solicitors on behalf of the landlord where they used improper inducement over the lease re-newal and a section 25 order to try to get us to drop our ‘liability’ claim against them. These were not offers to settle as stated in the costs hearing at a later date. The floor situation lead to forcable re-entry and trespass. It is a claim still outstanding on the insurance which both the D’s surveyor and ours stated was a straight forward claim for replacement on the insurance policy for material damage.

We suffered loss, damage, statutory harassment and trespass as a result of the floor claim and the claim for structural repair of the air-bricks to be put in. Our rent dates were changed just weeks before to be on the same day for both premises to assist the landlord OHG in a breaking and entering double eviction and forfeiture for what they said was non-payment of rent yet their finance department claimed cheques had gone missing.

Final point HHJ Cowell accepts D’s submissions but later admits he did not even read ours of 92 pages and 245 paragraphs which too, show ‘causes of action’ on ‘liability’.

Page 184 C’s submissions on liability show repairs job cards: Reported 24.01.05 invoice accepted 06.06.05 Flat 3, showing 5 months delay. Also the repair in Flat 2 119853 on the 29.03.05 – 31.03.05 with invoice accepted 20.05.05

Point 15 of our amendments – Trespass, which has been ignored completely as part of this counter claim

The loss adjuster for the building policy insurance Mr Hines stated there was a protracted delay 31st July 2006 – 21st Sept were Mr UK was ‘unavailable’ therefore he states he ‘cannot make progress’ Mr Hines asked for work orders.

June 2006 104 lease expired. Letter from Woolf Simmonds 16th July 2006 D’s solicitors, trying to bribe us to drop the claim during the period whist waiting for a decision on ‘Property Owners Liability’ from Royal and Sun Alliance ‘excess POL liability insurers’ within a three month protocol which was then breached to date with still no word from them. FOS has involvement since 2006 and are currently still investigating.

It was not the last time this cistern caused a leak below. That is why Mr UK is telling untruths to hide the truth of dierepair.

The case is negligence, cessor of rent, expressed covenants for Quiet enjoyment – failure to respond timeously with remedial action to the flat above. Also in point 7 of amendments.

It mattered not in the first instance that they did not respond to our flooding as the damage was done but that they failed to keep above in a good state of repair. Therefore to say they “responded” is in both cases of before and after is incorrect.

Case Laws

Vural – Lessor owes duties – Implied in the contract with the insurers.

Statutory harassment laws.

Barrett V Lounova – Business efficacy – correlative obligations.

Scrutton LJ Modified – preferred not to say whether duty arose out of ‘contract’ or ‘duty to take reasonable care’.

Breach of lease clause 7 with the insurance POL, speed, means

Sedleigh – Denfield – Nuisance caused by state of things on neighbouring land, ‘knowledge’, ‘fails’, ‘breach of duty’

Duke of Westminster v Guild ‘duty of care’ to keep pipes in good state of repair.

The next matter concerns the pavement lights
POC 7 – 14
50 (x) (xi) (xii)
Schedule pg 20

Three different periods:

April 2004 – The reply 3 (i) – (iv) and para 4 only indication of ‘Cause of Action’ are words “in breach of leases” and “negligence”

June 2006 – Oct 2006
POC 44, 45 and 50 (xx) and (xxi)
Schedule Page 29

June 2008 – Again only reference to ‘Cause of Action’ in reply 13-16 ‘Breach of Lease’, ‘Negligence’ and ‘Breach of Building regulations’

Already discussed ( notes of the other sides solicitors here say (not?) So unclear what the judge said here which is the reason we still need the official transcripts) been demised to C. If it had been their obligation to repair possession and control must have been retained by D, subject to public way or highway.

Difficult to argue Guild that the principle in ‘Guilds’ case cannot apply and any landlord is well advised to repair and that appears to be the attitude of Jaqui Greene. In the very nature of the material securing the pavement lights that may leak from time to time unlike a water pipe. If pipe does leak clearly alerts occupier to urgent need to remedy and remedy pipes require jubilee clips and degree speed and skill not readily effected by tenant. But because a tenant in the position of C’s in this case could so readily reach the pavement lights to do the repair and thereby relieve D of the ‘duty’ the tenant could very easily mitigate damage. Tenant would be better aware than D in this case that leaking!!! Make these observations so that the principles of law are not detached from reality.

D’s short answer in this case Caveat Lessee

Satisfied defect at the time of grant

May 2004, Mr UK first response, landlord not responsible and that is another matter which is debateable.

First written evidence Jaqui Greene emails 15.10.04 D1/125 and 25 ND 25.10.04 after she had written those one finds works were done by kingsbury.
Identity of Kingsbury recently discovered by C’s and works done by them 01.01.04
‘Notification’ that Kingsbury was the contractor given to D’s by Sept 2004.

You have to look at the facts for what they were the gaps in the glass bricks required maintenance and the D’s knew fine well that the maintenance was done by there own contractor Kingsbury. The fact we found out that they did the sealing is after protracted denying that the sealing was their responsibility as they can’t claim sealing of ‘wear and tear’ off their building insurance as it is excluded in the policy so they have to do it bi-annually themselves. They were concealing the truth from us so that they did not have to repair and were aware all along as the bricks had only been put in, in 2000. We could not trade as we had water ingresses, which is covered in the policy so caveat lessor is neither here nor there to us. It is not a permanent that requires some act of repair it is maintenance to stop rainwater getting in. Had they claimed for the water ingresses as was covered then the loss adjuster would have said they had not mitigated their losses and they knew that. Instead they simply lied to us and left us in a position of indifference with a repair that would cost thousands of pounds to fix when we had just entered the premises. The reason we found out was because after protracted investigation with Camden and Roads and Highways we contacted the company Luxcrete to look at paying for it ourselves (after much consideration of handing back the lease and taking an capital investment loss to of nearing £20,000 to that date) and it was they told us it was the defendants contractor Kingsbury.

D’s point out Caveat Lessee is correct but if I am wrong about that there are problems in saying that the test in Guild has not been met and C’s is entitled to damages.

Position is doubt expressed about D’s responsibility and indeed Mr UK has denied responsibility (initially only and then when we found it was there liability they repaired immediately so the prior to the truth coming out denying point is now irrelevant)

Repair comparatively simple and open to C’s to have remedied immediately and could have been followed by arguments later about who was paying.

Paying for damage itself .. matter for the insurance and if remedied by C with benefit of insurance at earlier stage no question of delay would have arisen.
We did internal repairs ourselves without benefit of insurance as we notified the landlord and we were advised by Jaqui Greene to put damp seal on the ceiling but it grew mould a few days later no matter how many times we tried to patch repair and paint over it especially when people wanted to view the space or we were marketing with very high profile businesses Dragon’s Den Peter Jones’s company one of our first enquiry, Diesel , Camden business community with all the new businesses influxing into the area and having marketing photo’s taken etc. Jaqui had told us we were responsible for internal repairs such as the wiring, fire panel, smoke detectors etc but she did not make a claim for ‘water ingress’ a policy cover for the obvious reasons stated above. The repair to the pavement involves 5 people a lorry of moulten substance a whole day and costs thousands of pounds. You can’t repair internally an ongoing leak! When we wanted to repair the pavement as was our only option in the second and third incident by getting directly in contact with Kingsbury Construction, we were told by the landlord categorically that we were ‘forbidden’ to contact their contractor direct and the fact remains that no other contractor is allowed to touch their demised pavement. It is not a simple repair as suggested! There is further no ‘duty’ on us to repair but there is on the landlord. Why is HHJ Cowell suggesting we relieve them of that ‘duty’? This is not law!

Paying for damage itself .. matter for the insurance and if remedied by C with the benefit of insurance at earlier stage no question of delay would have arisen. In short C could have mitigated loss for work necessary not in my Judgment ‘extraordinary’.

Second leak June 2006. Attempt FWA 3rd Oct. Useless material trodden into space (yes on the night of a magazine launch sponsored by waitrose, useless material is soft black mastic all over the floor taken in on the high profile guests shoes). Carpet D replaced and remedy not done till 16th Oct 2006
(Jo deliberately asked for the £50 door entrance carpet to be replaced by the D because it was ruined and if they paid she thought that that in fact is an admission in law of liability and the did pay so there it is! They never paid for the damage to the wood floors so that is still outstanding.)

Reason for considerable delay D’s thought insurance might pay

(yes, with a bogus story that BT lifted the pavement in one area when the leaks were all around the building so that was us waiting for them to try to commit a fraudulent claim not really admisable as a reason for delay it very surprising HHJ Cowell uses this to defend their lack of action and forseeability and knowledge of continued damage)

Immediate cause of defect, Thames Water (How perhaps we should put all this liableous accusations to Thames Water?)

Not fault of D.

Insuance not liable to pay because wear and tear not in the policy, when that becomes ‘reasonably’ clear, D’s attended Oct 2006.

(D’s knew about the ‘wear and tear’ not in the policy as in the April 2004 case as was the same repair?)

Assuming Guild principle applies no culpable delay on part of D, when appears insurers unlikely to pay up, work done and same mitigating principle ought to apply.

C’s could have got Kingsbury in and argued about it later.

Third leak same mitigating principle applies relevance to electricity cupboard leak. Not in breach of Guild principle and can’t see any other proper way in which C’s can properly allege liability in respect of the pavement lights.

We get accussed of this all the time as not properly alleging!!

So here goes again:

‘Causes of Action’ in our particulars, which were well written within 3 weeks of Nov 2008 hearing with the help of a good friendly barrister Lesley Woods for hardly any money at all.

(i) The defendant have breached their expressed obligations under both lease in that they have prevented the Claimant’s Quiet Enjoyment of the two premises
(ii) Breached leases failed to comply with paragraph 7;
“all convenient speed to lay out and apply in rebuilding repairing or otherwise reinstating”
(iii) Defendant expressly obliged to effect claims on insurance policy promptly.
(iv) Instigate repairs and remedial action promptly, risks covered by building insurance
(vii) Negligent in delaying repairs causing increased damage/loss of business
(viii) Further negligent failing to effect promptly or at all claims on the insurance causing ongoing damage/loss of business
(x) Denied liability to maintain later admitted liability
(xi) Failed to repair damage
(xii) Failed to claim on insurance
(xx) Water ingress repairs not affected, hence mould growth, active condensation
(xxi) Breach of building regulations exacerbated

The Judge misses out entirely the same problem occurred in May 2008 to Dec 2008, which is when we were forcibly evicted by the then landlord One Housing Group to conceal the now very serious evidence of the structural defect that had just been made clear to us. There was no air in spaceshift.. at all.

Case Law

 Barrett v Lounova – Business Efficacy – correlative obligations

Cockburn – Damage Owes Duties – Liable for damages suffered to her (only fixed in Oct 2005 alongside other material damages claims on the insurances)

Woodfall – Maintenance – Cockburn – Damages – HHJ Cowell “not to detach from reality” other damage was occurring at the same time and outstanding repairs were necessary on many fronts to make the demised fit for purpose for Business Efficacy.

Vural – Water ingresses to the demised covered by the insurances. Knowledge, Foreseeable, Contract, Scrutton LJ.
Dragging their feet as pavement not covered for them but water ingresses were for us.

Caveat Lessee cannot be pleaded as not a defect cannot be pleaded as such and further if pleaded cannot stand up because the D’s had prior knowledge and hid it which is the only thing that blows Caveat Lessee out of the water.

Negligence – Cannot claim to be neighbouring occupier as retained control and pavement proved by C’s in a statement from Camden Highways that the pavement was demised to the D’s.

Woodfall: Lessor retains control, mainteance necessary for the protection and safe enjoyment. Lessor obligations to take reasonable care.

Breach of Leases to be ‘protected from the elements’ and although HHJ Cowell says that they must not do anything that actively removes for example shelter, lack of what should be planned maintenance is a removal of shelter from rainwater, if what is demised to them actively erodes without maintenance. It would be the same as letting pipes freeze because the heating was never on. It is a ‘duty of care’ and it is foreseeable. We also showed prior complaints of water ingresses by the pavement area by a former tenant so it was foreseeable and they had knowledge.

Water ingress is insured and whether anyone was liable there were no claims made anyway so breach of contract and duty to take reasonable care.

The use of the word ‘notification’ is inappropriately used for September 2004 as D’s well knew from April 2004 when ‘NOTICE’ was given who the contractor was and that they were not insured yet responsible for the maintenance but C’s did not.

No notification was necessary about the pavement itself except to give notice in April 2004 that the C’s had a water ingress which was covered by the insurances.

Not fault of C’s if D’s not maintained and the pavement has nothing to do with them similar to the flood at 104 upstairs however it was foreseeable that the lack of maintenance on their land was a ‘breach of duty’ for ‘Quiet Enjoyment and a Nuisanable action. C’s cannot mitigate an ongoing damage.

Hargrove – HELD - Fails to maintain the gutter with notice of 2 days and causes damage to tenant below.

Another series of problems in the electricity cupboard.

POC 42 and 43 – June 2005 – November 2005
Schedule at page 27 – Also deals with June 2006 – Jan 2008 and May - June 2008.
Reply in paragraph 11 (i) – (V) gives only hint of cause of action, breach leases, negligence, breach of statutory duty.

Again no covenant in the lease that assists C.

Negligence is alleged but particulars were never formulated which made it very difficult for the D’s to defend. Breach of Statutory duty is somewhat vague, statute not indentified.

Claimants submissions on liability which were not read by the Judge page 64 and 65 paragraphs 170, 171 and 172 identify causes of action ‘nusiance’, ‘enviromental health hazard’, ‘danger to residents and commercial tenants as fire hazard’, ‘breach of covenant of leases for quiet enjoyment’ and ‘duty of care’.

That is somewhat typical of all allegations in respect of many matters.

The electricity cupboard is not in demise. It is between 104 and 106/108.

Document C3/4/131-2. Thames Water refer to ‘our leak’ in August 2005. When remedial work was done by Thames Water.

In our submissions which the Judge did not read page 64 it was submitted that for the whole period following on from the 1st June report D did not reasonable care, nor make reasonable steps in remedying this defect promptly, with the exception of the time after June 2008 when D demonstrated that it could indded act extremely promptly and rather efficiently. The electricity room is a communal part of the building and is under D’s responsibility and care for maintenance. They failed to repair the defect with reasonable speed and care page 57-64 of our submissions. HHJ Cowell above refers to ‘our leak’ quoting Thames Water ‘out of context’ at one point for they had actually dug up the road about ten times by then with Jo chasing this to find the source of the leak before it stopped mysteriously (probably someone went on holiday or a flat was vacated for a time which was lucky for D since the tiring complaints procedure we had entered into was at stage four by Jan 2006, and we were to meet with a panel plus at one stage Jo had been in the paper complaining of the fire risks after a visit from the fire brigade over the problem who said water and electricity can cause a fire and that it can also cause electrecution to those entering the area). The point being that that was in August 2005 HHJ Cowell spoke of ‘our leak’ by Thames and the D’s had done nothing to investigate on their side. They had not triggered an insurance claim since the leak affected both shops with water ingresses on both sides. They simply let Jo chase Thames Water. Did they know there were 12 water pipes in the ceiling of their own electricity cupboard. Couldn’t they have found out/investigated if they did not know. Jo did not assume water to be in this room in a boxed ceiling and therefore chased Thames. The D’s only took over chasing Thames when Jo was exhausted with it and they ‘kindly’ took over with Ed Coster and Babatunde looking like they were doing something finally but they did no investigation into their own side of the supply pipes. Thames suggested that it may be a supply pipe on numerous occasions after extensive trace and remedy by them hence perhaps saying ‘our leak’. Still the D’s did nothing. The leak came back with avengence again to be noticed anyway due to the ingresses and smell in May 2006 and the D’s visited again and photographed. They then claim to have lost those photographs at court. They saw the full effects of the walls saturated by a burst pipe in their ceiling even the floor was soaking and again did nothing on their side to repair. Only after at one stage in June 2008 the environmental health was visiting for reasons of safety to the residents reasons and we let them know and viola, insurance triggered, private contractors in and leak found in 10 minutes of them entering the room. So as is often said by the Judge ‘its one thing knowing there is a leak its another finding it, well in the case of CHA residential maintenance that would be over three years v’s private contractor paid for by insurances provided 10 minutes!!!!!!!

Impossible to say D in breach of Guild duty. At no time knew or had the ‘means of knowing’ where the leak was from.

First leak remedied by the time C wrote to Hines (the loss adjuster, funny that too was when leak mysteriously stopped) C1/340 in January 2006. Makes clear she and Thames Water. Ed Coster said C2/3/3 would follow up with Thames Water.

Second leak ‘investigated’ by Thames Water in Autumn 2007 C2/3/24 and C/3/20.
Thames Water had in June done other works (replacing the Victorian mains all around London including Kings Cross) see email 1/8/06 C2/3/83 reasonably promptly after C’s notified Ed Coster had alerted Thames Water 1.8.06 C2/2/83 (Not sure if I have to point out how laughable that is)

Third incident May/June 2008 C2/3/5-8 Monique Jamera taking steps to have leaks cured.
Impossible to say D ever in breach of Guild duty in respect of these unfortunate leaks which Thames Water itself had some difficulty in stopping. (They did not stop the leak D did when it was discovered it was their own pipe).

Causes of Action

(i) The defendant have breached their expressed obligations under both lease in that they have prevented the Claimant’s Quiet Enjoyment of the two premises
(ii) Breached leases failed to comply with paragraph 7;
“all convenient speed to lay out and apply in rebuilding repairing or otherwise reinstating”
(iii) Defendant expressly obliged to effect claims on insurance policy promptly.
(iv) Instigate repairs and remedial action promptly, risks covered by building insurance
(vii) Negligent in delaying repairs causing increased damage/loss of business
(viii) Further negligent failing to effect promptly or at all claims on the insurance causing ongoing damage/loss of business
 (xi) Failed to repair damage
(xii) Failed to claim on insurance

Case Law

Sedleigh – Denfield - ‘Nuisance’ caused by state of things on neighbouring land, knowledge, fails, ‘breach of duty’

Breached Leases Clause 7 Duke of Westminster v Guild “duty of Care” ref: Hargrove Aronson v Hartopp + Cockburn v Smith.

Woodfall 28th Edition 1-1469 page 621 Lessor retains control, maintenance necessary for the protection, safe enjoyment, lessor obligations to take ‘reasonable care’
Cockburn – Liable for damages suffered to her.

Scrutton LJ Modified – preferred not to say whether ‘duty’ arose out of ‘contract’ or duty to take ‘reasonable care’

Guild for short.

Barrett v Lounova – Business Efficacy – Corralative Obligations

 Vural – Lessor owes duties lease implies contract with insurance

Clerk and Linsell – Escape of Water – ‘Reasonable time after notice’

Fact was; Leak on premises, so if same applies as in cracked stack pipe on the premises whether Thames were involved was irrelevant, like what was Judged earlier that the neighbouring flats in the end were not relevant then it took in total after notice a total of 3 years to be fixed. Fixed by insurance paid for contractors as it should have been in the first instance.

Another series of problems feature:
POC 33-41 – Fire panel, wiring, smoke detectors, emergency lighting.
POC 46 – No Ventilation in 106.

Other matters –
Security shutters,
Fire exit.

Para 30 Schedule 31-32.

In respect of no ventilation said air bricks, POC and Schedule page 33.

There are photos of the fire escape and lighting G1/121-2.
D’s did improve the fire exit, re-arrange the door in about July @007 to open outwards rather than inward.
Complaint is arrangment did not meet fire regulations. D’s short answer Caveat Lessee.

That must be correct.

No warranty or covenant given that the premises comply with regulations.

Nor any ‘breach of regulations’ give C’s ‘Cause of Action’ against D.
Accept paragraph 65 – 67 D’s closing submissions.

Similarly have to give the same answer in respect of want of ventilation/absence of airbricks.

No warranty given that property would otherwise than that, another case of Caveat Lessee.

Accept D’s submissions paragraph 68-9.

Case Law

Barrett v Lounova – Business efficacy – correlative obligations

Jackson v Watson – Defect faulty construction
Guild – Woodfall – Lessor retains control maintenance necessary for protection and safe enjoyment. Lessor obligations reasonable care – foreseeable – Hargrove – ‘notice’ given

Ventilation: Building regulations part F
Jackson v Watson – Defect faulty construction
Barrett v Lounova – Business efficacy – correlative obligations
Vural – Lessor owes duties – lease implies – contract with insurers HAPM + Fraud also theft covered by the insurance.

Security Shutters: Theft – Vural insured – All public money – application for 106 lease asks for the same ‘standards’ as 104 – this includes floor too - Insured.

Fire Exit – Barrett v Lounova – Business efficacy – Lease obligations. Fire regulations – Statutory duties.

Caveat Lessee cannot stand up if prior knowledge and withheld

Broader question of insurance. During periods parties sent submissions C’s sent letter 25th July (actually an email was requested in 2010 after trial ended and asked for because the case of the ‘Claimants’ was not heard at all due to running out of time after 10 days so D’s only presented their case in this trial. The unheard case of the insurance satalite dispute and the voided insurance because of the landlord was therefore never heard except in the email the Judge now refers to) which refer to series documents which demonstrate difficulties C’s had been getting from the insurers after 20th Jan 2006.

Need only to mention very few documents.

Mr Hines who came on the scene 25.07.06 C4/292 … (missing notes) By Oct 2006 C’s (reclaiming) claiming £280,450 C4/217 from D for breach of ‘the usual landlords covenants’ and £164,000 odd from insures for water damage (cessor of rent and business interruption).

Letter 8th Aug 2006 dealing with those claims concluded as insurers unable to assist.

Described as final decision letter of those insurers. C4/208 C’s claiming £400,000.

After much hassle about documents received by Graham Ward (Royal and Sun Alliance loss adjuster) and whether passed to … (notes missing) insurers took the view C’s not provided sufficient information.

Information of the kind 28.11.07 clarification and Harris (Alan Harris of ‘Harris Claims’ notoriously well know loss adjuster to the stars and famous brands in business employed by C’s) request for insurers to accept liability insurers insisted on proper presentation (well if anyone could present well Alan Harris could he said they just don’t want to pay and are leaving us in a position of indifference to see how deep our pockets are in a court trial where they will just pay fees of the legal people to rid themselves of the claim) C4/143, C4/133.

Ultimate point, that has nothing to do with D. (it was there second  and back up excess liability insurer so it does because they breached the terms of the first insurers).

Far from standing between C and the Insurers D enabled C’s to correspond (how?) with insurers and refusal by insurers even if wrongful, which I doubt, gives C’s no cause of action against D.

The use of the usual landlords covenants is derogatory to the claimants and even though HHJ Cowell was well aware he never figuratively explains our vast financial losses including a house that had been bought outright which had to be mortgaged and then sold to pay for now cripplingly higher loans outstanding just to pay the rent and not lose everything invested in.
D’s breached terms that is why unable to assist.

Case Law

Breach of clause 7 on leases contract or duty or both.

Unfair trial under the human rights act asked to put our case in an email and HHJ Cowell made legal history when he admitted after Jo proved it he had not read our case at all because he admitted not reading after never hearing in court either our submissions on liability of 92 pages and 245 paragraphs.

Vural – The D’s dragged their feet D’s did not provide information to the insurers loss adjuster for which information was vital to advance the claims.

Claimants put to presenting a claim for court instead without knowing about the insurance having been voided for some years. So living in false hope and financial planning for years that we would eventually albeit that it had taken a long time simply be reimbursed on the insurances for losses simply covered by our buildings insurance policy under the property owners liability section POL for which the loss adjuster Hines had reported we had qualified for and put a figure of £30,000 and so did Royal and Sun Alliance put a figure of £100,000.

The landlords cannot be said to have ‘not stood in the way’ when they triggered the ‘legal defence policy of defending a claim’
After statutory harassment, trespass and improper inducement to drop the ‘liability’ claim.

 The second Judgement after HHJ Cowell gave himself a day to read out submissions of 92 pages 245 paragraphs and 359 pieces of evidence quiet a remarkable task changed nothing but I cannot be bothered to type it up as is the same.. Is this really Law! 

I need a heavy weight fighter to do this case I have done the most part and although I could I just need a break due to my mum just dying and I'm fed up of this case or rather this corruption.

The chair of One Housing Group is Julia Neuberger maybe she can help them to admit to their liability?