Dear Hannah,
As
you will know the hearing was
successful on all grounds except to my utter disappointment the
forfeiture of the two premises. So we did get ground for permission to
appeal on the liability, damages and costs upheld and there is now a
stay on
the order for indemnity basis costs of £400,000.
I have received the order from the courts on Thursday 6th Dec and it reads;
On reading the Appellant's Notice filed on the 13th October 2010 filed by the Applicants on appeal
from the order of His Honour Judge Cowell dated 22nd September 2010.
AND ON HEARING Mr Jan Luba QC of counsel on behalf of the Applicant
IT IS ORDERED that
1) permission to appeal be granted, save for grounds 8, 9 and 10
2) permission to amend the grounds of appeal into the form of the amended grounds
3) a stay be granted
4)
the matter be heard before three Lord Justices one of whom may be a
High Court Judge and one should have property/chancery experience
5) the time estimate be a day and a half
6 costs in the appeal
This is in relation to the amended grounds put forward by Mr Jan Luba QC which read;
AMENDED GROUNDS OF APPEAL
These Grounds stand in complete substitution for the Grounds
filed and served with the Appellant’s Notice.
Liability
1. The judge misdirected himself in law as to the extent of a landlord’s liability
for damage caused to demised premises by a defect in another part of same
building which is retained under the ownership and control of the landlord. He
ought to have directed himself that the landlord was liable to the tenant for all
loss caused by the defect and not simply for such loss as is suffered after the
landlord has had knowledge of the defect and a reasonable opportunity to
remedy the defect.
2. The judge misdirected himself in law as to the landlord’s liability for disrepair
under the leases held by the tenants in this case. He ought to have held that the
tenants’ obligations to repair, in respect of the demised premises, were
matched by a correlative implied obligation on the landlord to keep in repair,
at all times: (1) the parts of the building retained in its ownership and control,
defects in which may affect the demised premises; and/or (2) such parts of the
building as might, if defective, lead to the occurrence of damage covered by
an insured risk.
3. The judge erred in holding that, notwithstanding the facts as found by him,
conditions in the demised premises did not give rise to the operation of the
‘cesser of rent’ provisions in the leases in this case.
Quantum
4. As a consequence of all or any of the errors of law in Grounds 1-3 above, the
judge seriously under-assessed the damages recoverable by the tenants for
breach of the landlord’s obligations and over-assessed their liability to pay
rent.
5. Further, even if the judge had correctly directed himself as to liability, he was
wrong to assess damages at only £100 given the findings of fact he had made
as to the harm caused to the demised premises and the purposes for which
those premises were bring used.
Forfeiture
6. The judge was wrong to hold that the leases had been lawfully forfeit by reentry
in October 2008. Had he not made all or any of the errors identified in
Grounds 1-5 above, he would have found that the tenants did not, at the date
or re-entry, owe the landlord any rent.
7. The judge was wrong, in those circumstances, to hold that the tenants were
liable to the landlord for mesne profits. He ought to have held that, subject to
abatement in respect of the period during which they were unlawfully evicted,
the tenants were only subject to an obligation to pay the actual rent reserved
by the leases.
Relief from Forfeiture
8. The judge was wrong to hold that he had no jurisdiction to consider whether
relief from forfeiture should be granted. Although no formal application for
relief had been pleaded, the judge had previously given a judgment in the
same proceedings treating his court as seized of such an application and it was
unfair of him to resile from that and to deny jurisdiction.
9. The judge was wrong not to grant relief from forfeiture of either or both
leases. On the unusual facts of the case before him, the judge ought to have
granted such relief, even if the tenants could not immediately pay the accrued
rent in compliance with the usual terms.
Stay
10. Having extended the tenants’ time to appeal from his orders, the judge was
wrong not to have stayed his order for possession until the appeal court could
be seized of such an appeal. He ought to have directed himself that a refusal of
a stay would lead to the landlord immediately recovering possession (as it did)
and would thereby disable the tenants from trading and thus from effectively
financing and pursuing an appeal (as it did).
Costs
11. Even if the judge did not err in any other respect, he was wrong to use the
exceptional power to order the tenants to pay the entire costs of the
proceedings assessed on an indemnity basis when, inter alia, (1) the tenants’
claim had succeeded in part and (2) the tenants has been self-represented
during the bulk of the proceedings and had only conducted themselves in a
manner common to many reasonable self-represented litigants.
12. The judge was wrong to order the tenants to pay the reserved costs of all the
interlocutory applications, most particularly where (1) the tenants had
succeeded in their application to be restored to possession pending trial and (2)
the landlord had later failed in an application to secure possession of one of
the demised premises prior to trial.
Jan Luba QC
16 November 2012
The Lord Justice that was sitting conveyed his love to the pro-bono unit and thanked Mr Jan Luba QC for his assistance in this case.
The Judge wondered if pro-bono assistance could be extended for the appeal and Mr Jan Luba QC said of course that was up to the unit.
I left a message on your ansa-machine on Friday morning asking for extended help from the unit in the case, I am not sure that you got that.
On Saturday 8th Dec I received more correspondence from the courts (dated the 6th Dec 12) asking me to put the party details into the courts within 4 days and they say this time limit is important not to break, as the case can be thrown out and costs ordered if not filed on time (by Monday 10th Dec). They also need to know if there is a change in legal representation?
There are also more requirements that have strict deadlines with the same consequences.
The appeal questionnaire part 1 and part 2 have to be filed by the 20th Dec 2012 and served on every respondent.
Although as I understand it Mr Jan Luba QC may have a skeleton argument I have not seen it and that will need to be filed too in accordance with the new amended grounds. I am keen to know how the case is going to be argued and for obvious reasons will not be using my two old skeleton arguments unless I do not get further assistance then in which case they will be the only skeletons I can rely on. I would then need the 4 boxes of files back from Garden Court Chambers to progress the case myself. However it would not seem right to either change representation for obvious reasons or to rely on my skeletons which the courts found in May 2012 a little difficult to understand. Perhaps another conference with Mr Jan Luba QC would be needed to iron out what is possible to argue legally and what he feels is hopeless as to date as I said I still do not really know the way the new grounds will be played out and using which laws. So I do not at this stage want to go backward when so much good work has already be achieved. I hope the unit can understand that.
Agreed bundles then need to be filed using any info we need from the skeleton. The respondents will also file a skeleton if they want to vary anything.
I also will need to apply to the courts to waive the £465 fee when filing the application by the 20th Dec 2012 as I am still on £52 a week working tax credits.
You may recall that there was a 2 years logged jam in getting the required transcripts with the civil appeal courts and Mr Jan Luba QC managed to unblock that communication getting the transcripts successfully within just 3 months. This has been put down to me acting as litigant in person and as the Judge said on Tuesday 'Ms Flores may be many things but she is not a landlords and tenants lawyer'. I would therefore ask that the unit continue to assist me in this case and stress that the assistance if possible could be continued immediately as I do not want to be the cause of the case being thrown out at this stage by me putting a foot wrong when I am now pretty much left to dael with these important deadlines as of Monday it would seem.
If I could know as early as possible on Monday if the unit can assist that would be fantastic. Then I would also have to try to catch Mr Jan Luba QC on Monday to ask him what I should do correctly or whether he has been copied into the latest correspondence. Mr Luba QC may be then able to ask for some extension on the 4 days which expires on Monday (today if you are reading this on Monday) since effectively the letter arrived on Saturday so 4 days is not for us all actually 4 days.
It seems a little odd that the courts can take so long getting paperwork and then such dire consequences can be put on a lay person with little knowledge of how the processes work, by them immediately after a such an astonishing turn around court victory last week.
I very much appreciate the assistance you have given me to date.
With Kind Regards
Ms Jo Flores
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