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.

1 comment: