Friday, 18 May 2012

This is exactly what I said in Court of Appeal 10th May 2012...

(I.) I apologize I am not a lawyer I am representing myself and I realise this is as difficult for you as it is for me.

(II) I put in two arguments for permission to appeal. Skeleton I on 5th September 2011 & skeleton II in Dec 2011.

The first skeleton argument was after receiving an official transcript of ‘7 pages’ of the ‘second Judgment’.

I put in skeleton II argument after receiving the defendant’s solicitor’s incomplete ‘notes’ of the ‘first Judgment’ sent by the courts.

I apologies for the length of both skeletons so what I am going to try to do is to reduce the points I’m making to the bare minimum.


1.     Quick point. ‘THE LANDLORD’S LIABILITY’ 6(5) (a) & (c) also ‘THE LANDLORD’S COVENANTS TO INSURE’ Clause 7(ii) and finally the definition of ‘INSURED RISK’S’ Clause 1(11).


(a) In any case where the facts are or should reasonably be known to the Tenant and not reasonably known by the Landlord the Landlord shall not be liable to the Tenant in respect of any failure of the Landlord to perform any of its obligations to the Tenant hereunder whether express or implied unless and until the Tenant has ‘notified’ the Landlord of the facts giving rise to the failure and the Landlord has failed within a reasonable time to remedy the same
(c) The Landlord shall not be liable to the Tenant or any other person claiming through
the tenant on account of any diminution of light or ‘air’ enjoyed at the Demised Premises or otherwise in ‘consequence’ of the ‘erection’ or ‘alteration’ of any adjoining or neighbouring
              property or any other works carried out thereto
The Landlord hereby covenants with the Tenant:
           7(1) That the Tenant shall have quiet enjoyment of the Demised Premises against      the Landlord and all persons claiming title through the Landlord
7(2) To insure the Demised Premises and the Development in an insurance office of good repute or at Lloyds against the ‘Insured risks’ and in the event of the Demised Premises being destroyed or damaged by any of the Insured Risks the Landlord shall with all convenient ‘speed’ (subject to the availability of all necessary labour and materials and the obtaining of all necessary permissions) lay out and apply in rebuilding repairing or otherwise reinstating the Demised premises all monies received by virtue of such insurance ‘other than monies received in respect of ‘loss of rent’ Provided that the Landlord shall be under no liability to the Tenant hereunder if the insurance money under any policy of insurance effected by the Landlord shall be ‘wholly or partially irrecoverable’ in the circumstances set out in 5(22) above Provided always that the Landlord shall not be under any obligation to insure any fixtures or fittings installed by the Tenant which have become part of the Demised Premises unless the Tenant shall have notified the Landlord in writing of such installation and the Landlord has agreed with the Tenant at the cost of the Tenant to effect the insurance thereof and provided further that the covenant by the Landlord as to reinstatement shall be satisfied if the Landlord provides in the premises so reinstated accommodation as convenient and commodious as is practicable but not necessarily identical to the Demised Premises as the same existed prior to such damage or destruction and provided further that if any competent authority shall lawfully refuse permission for or otherwise lawfully prevent any rebuilding or reinstatement of the Demised Premises or any rebuilding or reinstatement shall be otherwise impossible impractical or frustrated all relevant insurance monies (so far as not laid out aforesaid) shall be receivable by the Landlord for its own use and benefit absolutely
For reference the ‘INSURED RISKS’ shall mean as set out in Clause 1(11) of the lease:
1(11) The expression "the insured risks" mean loss or damage by or in ‘consequence’ of fire and such other risks as the Landlord may deem desirable or expedient including three years loss of rent and architects and surveyors fees and demolition clearance and similar expenses

The Judge failed, in his final second Judgment by the ‘expressed’ terms of the lease, by saying:

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.

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.

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. 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.

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.

(IV) The Judge gave Judgment 9th Sept 2010 without taking into account of or either reading our submissions on liability.
Proof of this is he gave a second Judgment on the 22nd Sept 2010 where he admitted that that was so (appeal bundle) for that reason alone his Judgment should be set aside and a new trial ordered.

A detached bystander would be driven to the conclusion that what the Judge was trying to do after having given his Judgment was to defend his earlier Judgment. That I submit is bias.

(V) Unfortunately there are no transcripts of the hearing; Judge Cowell said I could not appeal without transcripts.

I have no money. I therefore asked Master Hendy if transcripts could be made available at public expense. He ordered that they could. Sixteen months later no transcripts had been prepared of the Judgment.

What had happened was the courts never sent the tapes to the transcribers.
We now have to rely on the ‘defendant’s’ incomplete notes, which I do not except are accurate.

And in support of the essential proposition here I’d refer you to Vural, Barrett and Hargrove:

1.     Vural Ltd v Security Archives Ltd (1989) 60 P&CR 258 – Chancery Division
The landlord’s predecessor let the property to the tenant.  Under the lease the tenant agreed to pay a proportion of the building insurance premiums and the landlord covenanted to insure the building and (in the event of damage by an insured risk) to use the insurance proceeds to make good the damage.  A fire destroyed the parquet floor within the property and this caused the tenant indirect loss as it lost a lucrative manufacturing contract with a customer because the manufacturing contract was conditional on the premises having a floor of a certain quality.  The evidence apparently showed that the landlord had deliberately delayed reinstating the floor in order to persuade the tenant to give up the lease.  The tenant sued for damages to compensate for its loss.
Was there an implied duty on the landlord to pursue the claim with the insurance company in a timely manner?  Held by the court that whether it was an implied term of the lease or whether the insuring covenant whilst limited nevertheless created an enforceable proprietary obligation, either way the landlord was obliged to exercise the rights conferred by the insurance policy in such a way as to preserve the tenant’s interests in what it had paid for.
NOTE: On the face of it the Vural case seems to involve a deliberate attempt to cause loss to the tenant much the same as the claimant’s case involving many other issues but significantly the £5,000 entire replacement of the floor claim an ‘insured risk’ and the then improper inducement of a section 25 notice threat by Oliver Barnett Commercial Director to double the rent if we did not fix it ourselves that being the harassment leading directly to the trespass shortly after.

Also, being in direct contact with the insurers through their complaints process was a requirement of the Financial Ombudsman and only happened in 2007 two and three years after the events claimed for. The landlord ‘hid’ for many years from the claimant’s the fact that they had breached the terms of their own insurance leading the claimants to wrongly believe from the landlord’s who told them they were experiencing delays that it was the insurers who were vey slow. This deceit directly ‘stood in the way’ of the POL ‘Property Owners Liability’ an ‘insured risk’ claim being paid to the claimant’s as a norm.
The landlord equally breached the terms by not applying for ‘cessor of rent’.
 Judge Cowell in Judgment muddied the waters without contextualising the extent of ‘contact’. We believe this was an attempt to ‘relieve’ the landlord from its own insurance obligations. Our loss adjuster was brought in much later as we were paying rent without a floor on threatening demands and were equally never paid compensation for the thousands we had already lost not trading and in interest on having to take out more and more loans and without him we would have never known that in fact the landlord breached the terms so the insurers would not pay.

2.     Barrett v Lounova (1982) Ltd (1988) 2 EGLR 54 – Court of Appeal
The tenancy of a house required the tenant to keep the interior in good condition but there was no express obligation on either the landlord or the tenant to keep the exterior in good condition.  The tenant complained that disrepair of the structure and exterior had caused extensive water penetration and damage to internal plaster and timbers. 
The Court of Appeal held that the principle of ‘correlative’ obligation could be applied here; the tenant had an express covenant in respect of the interior and it was reasonable to imply a mirror-image covenant in respect of the exterior on the part of the landlord.  If the outside was not kept in good condition then sooner or later the tenant would be unable to comply with its covenant in respect of the interior.  An obligation to repair the outside had to fall on someone and that someone could only be the landlord.
NOTE: this decision was made in the context of a residential house but as a small commercial business the ‘correlative’ obligation point seems to be central to the Court of Appeal’s thought process, and therefore it would seem that the tenant succeeded in this case because the court concluded that the tenant could not comply with its own obligations in the absence of the landlord having an implied obligation to maintain the exterior and structure.
There are obviously separate issues as to the nature and extent of the landlord’s obligations.  Barrett was seemingly a case where the landlord had no express repairing obligations, and it is a different matter to imply further obligations in circumstances where the lease does set out some repairing obligations, especially if those more limited obligations do seem workable in principle and are not in conflict with what a reasonable landlord and tenant might be assumed to have intended such as being insured for the ‘risks’ of ‘water ingress’ from the stack pipes and from the pavement which required ‘maintenance’, which was correctly proved by the claimant’s to be demised and the Judge judged was demised to the landlord.

1.     Hargroves Aronson & Co v Hartopp and another (1905) 1 KB 472 – Divisional Court
A rainwater gutter in the roof, which was controlled by the landlord, became stopped up.  The tenant informed the landlord but the landlord failed to clear the gutter until 4 or 5 days later by which time rainwater had seeped into the tenant’s premises causing damage.
The Divisional Court held that as the gutter was under the landlord’s control it had a duty to take care that it was not in such a condition as would cause damage to the tenant’s premises.  The landlord had ‘notice’ of the gutter being stopped up and failed to clear it within a reasonable time and was therefore responsible for the damage done.  The court took the view that despite the absence of a covenant to maintain the roof and gutters in good condition the landlord was nevertheless under a duty to take reasonable care to prevent a gutter under its control from being blocked up so as to cause damage to the premises of the occupier below.  The fact that the landlord never inspected the gutters and then delayed carrying out repairs even after receipt of notice of the problem was evidence of a failure to discharge that duty.  The court felt that this was particularly the case in relation to something like a gutter which was an artificial construct used for the purpose of carrying off rainwater and which it therefore had a duty to ensure was actually performing the function for which it had been constructed.
NOTE: this is helpful to the claimant’s position, although it is only a Divisional Court case (less authoritative than the Court of Appeal) and it is also quite an old case. The pavement was an artificial construct put in by the landlord in 2000. In court ‘notice’, was proven to be given as soon as problem’s occurred. Further damage was caused as stated by not only the claimant’s but by the insurance by the landlord’s delays to remedy defects for the stack pipes, the pavement, the fire exit, the electricity cupboard and all other issues that were brought forward in this case.

The Judgment has many aspects that can be criticized. In short the Judge overlooked that the essential points was that the entire mess was because the landlord failed to claim on the insurance on time.

Wednesday, 9 May 2012

Hearing 10th May 10am Court 74 High Courts The Strand

The wait is over...


Thursday, 10th May, 2012
At 10 o'clock
B5/2010/2396 Gavin & Anr -v- Community Housing Association Ltd. Application of Claimants for permission to appeal and a stay of execution.