OLIVER CROSS EXAMINED BY JO 23rd JULY 2010 CENTRAL LONDON COUNTY COURT

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Mr. OLIVER BARNETT, Affirmed

                                       Examined by Ms. BHALOO

MS. BHALOO:  Mr. Barnett, could you give his Honour your name and business address?

A  My name is Oliver Barnett and the business address is One Housing Group, 100 Chalk Farm Road, London, NW1 8EH.

Q  Mr. Barnett, there should be a bundle labelled B1 in front of you.  Could you turn to tab 15 of that bundle?

A  Yeah.

Q  (After a pause):  Is that your witness statement?

A  Indeed, it is, yeah.

Q  Yes.  If you just go through to p.75, to the end, is that your signature?  It is just at the end of the tab.

A  Yes, it is, yeah.

Q  Have you had an opportunity to read through your statement recently?

A  Yeah, a few days ago, yeah.

Q  And are the contents true?

A  Yes.

MS. BHALOO:  Thank you.  If you wait, there will be some questions for you.

JUDGE COWELL:  Yes.  There is only one question.  The reasonable offer that you referred to in para.37, is that the one in D3, p.826?

MS. BHALOO:  There is a bundle D3 underneath your bundle B1.  That is the one.

A  Right.

Q  Page 826.

A  Page what, sorry?

Q  826.

A  (After a pause):  Sorry, what’s the question?

JUDGE COWELL:  Whether you were referring to that when you say, “I did make what I believe to be a reasonable offer”.

A  Para.37, yeah?

Q  Yes.

A  Do you mind giving me a moment to read?

Q  Yes, of course.  (After a pause):  That is the only question I want to ask, whether it is that that you are referring to.

A  It must be.  Yeah, it must be.  It can’t be -- I don’t think it can be anything else.

Q  Yes.  The other thing I want to say to both parties is I do not want to hear about any other offer at all.

A  Right.

JUDGE COWELL:  It is just one of those rules.  I am not allowed to know about them.  Thank you very much.  That is all I wanted to ask.

Cross-examined by Ms. FLORES

MS. FLORES:  Oliver, Mr. Barnett, OHG (One Housing Group) and CHA -- as a management agent, you don’t own the property.  You have no investment in the property.

A  I’m not with you, sorry.

Q  You described yourself very often as a management agent.

A  No, no, a managing agent would be -- I mean, historically, a managing agent would be an external party who would manage the properties for an organisation.  I was brought in to dispense with managing agents so that the management would be dealt with in-house.  So I’m directly employed by One Housing Group, Community Housing Association, to manage all their commercial interests.  So I’m not a managing agent, as such, no.

Q  Right, okay.  You say in your witness statement you had a similar role at various leading housing associations, private property companies.  Is that right?

A  That’s right, yes.

Q  Were they private or ----

A  Various.  I mean, obviously, I’ve worked for various organisations over the last 12 years.

Q  Private or ----

A  Private and public.

Q  Right.  You say, “I’m responsible for the commercial properties owned by OHG and three housing associations within that group”.

A  That’s right.

Q  What are the three housing associations?

A  Community Housing Association, Toynbee Housing Association and Island Homes Housing Association.

Q  Island Homes.  Is that private or ----

A  They’re all housing associations.  They’re all public sector bodies.

Q  So you’re not -- you’re a group.  One Housing Group is a -- you see, what I’m trying to get at is Community Housing Association, is it part of a group ----

A  Yeah.

Q  -- or does it stand on its own?

A  It’s a -- the parent company is One Housing Group.  The three housing associations are subsidiaries of that parent company.  So the actual -- the parenting company is -- the asset holding companies are those subsidiaries, but OHG is the parenting company.

Q  So does One Housing Group own CHA?

A  Effectively, yeah, yes, it does.

Q  So you do.

A  Yes.

Q  So do they have liabilities as a group?  I mean, if the group owns Community Housing Association, does the group accept liability or does the housing association accept liability?

JUDGE COWELL:  What for?

MS. FLORES:  Anything.  I’m just trying to understand the difference between Community Housing Association and One Housing Group because at the High Court, your Honour, we went to sue One Housing Group, but we were told that

we could only sue Community Housing Association.  So I’m just trying to establish with Mr. Barnett who is One Housing Group.

A  I think the easiest way to do it is -- obviously, the leases for respective properties are granted in the asset holding company’s name.  So obviously for Cromer Street the subsidiary of importance, obviously, is Community Housing Association, so obviously all dealings are essentially with Community.  The fact that it’s owned by a parent company, I don’t -- I think is probably immaterial to this case, I would have thought.

Q  So who’s Mick Sweeney?

A  Mick Sweeney is the chief executive of Community Housing Association and he’s also the chief executive of One Housing Group.

Q  So if CHA (Community Housing Association) went bust, for example, would OHG, the same people, take it over or is CHA the same people with a new name?

A  No, as I say, it’s a holding company, a bit like, I don’t know -- you could have something like -- British Telecom might be the name that everyone knows as British Telecom, but the phones company might -- they might have a holding company called British Telecom Holdings that holds the company, British Telecom Plc.  Do you see what I mean?  It’s a similar sort of set-up.

Q  So they’re intrinsically linked?

A  Yeah, yeah.

Q  So if they’re intrinsically linked, why did you remove One Housing Group early on in the case?  Is it because of your branding or ----

A  I’m not aware.  I’m sorry, I’m not aware of this.

MS. BHALOO:  Your Honour, I am sorry, I have been trying very hard not to interrupt, but I think that is a legal point.

JUDGE COWELL:  It is, really, yes.  The thing that matters is that the owner of the property outside the demise is Community Housing Association Limited - that is what matters - and also that it is the landlord.  But it is the registered proprietor ----

A  Yeah, if you do a Land Registry search, yeah.

Q  -- of the entirety of the building at whatever the building is called.

A  For your information, I mean, the ----

Q  It is Cromer House, is it not, on the photograph?

A  Yeah.

MS. FLORES:  So when we were broken into, who broke into us, CHA or OHG?

A  Well, it wasn’t broken into.  It was -- it’s known as “peaceful re-entry”.  That was by ----

Q  Sorry, that was my terminology.

A  Sorry, yeah.  That would have been, obviously, Community Housing Association as the landlord.

Q  Nothing to do with One Housing Group.

A  Well, as I say, they’re intrinsically linked because Community Housing Association is a subsidiary of One Housing Group.

Q  Right.  So who do you work for?

A  You’re starting to get into, sort of, HR issues here because I’m -- there’s obviously -- some people are employed under OHG terms.  Some people are employed under CHA terms.  I mean, it’s really immaterial.  I mean, I think -- thinking about it, I think I’m employed by OHG.  I think I’ve got OHG contract terms, I think, but I don’t know.  It’s not really important to me as an employee personally.

Q  So you gave the order.  You’re OHG, but you say that CHA gave the order, although it was you that gave the order but you’re employed by OHG.

A  I think I’m getting confused now.  As I said to you, there is a very simple relationship under the Companies Act, which is that CHA is a subsidiary of One Housing Group.

Q  Oliver, when you were brought in -- was it November 2007?

A  That sounds right, yeah.

Q  You made a reference that you received a file to read up on the situation of our case.

A  I think various, yeah.

Q  Yeah.  Did you read Jacqui and Richard’s statements at that stage?

A  I can’t remember now what I read and what I didn’t read.  I mean, I had a -- I made it my business to try and get an understanding of, you know, all the files that I was handed for all the properties but, obviously, particularly yours as well, obviously wanted to try and take a pragmatic approach in dealing with it and obviously there was quite a history, as we know, and tried obviously to get my head round it as quickly as I could.  And obviously -- and there were -- obviously stuff came up at various times that obviously I wasn’t aware of and I had to, sort of, backtrack a bit.  But, yeah, I did try and get my head round it as well as I could at the time.

Q  So if you were given that file and you did get your head around it, what did you make of the time delays between Alan Hines being appointed in 2006 to Jacqui Greene and Richard Mr. Ukhueleigbe actually offering their statement to the loss adjuster?  What do you make of the timing of that?

A  Who’s Alan Hines, sorry?

Q  He’s the loss adjuster for QuestGates.

A  Who are QuestGates, sorry?

Q  QuestGates was the loss adjuster appointed by Farr Plc on behalf of the building insurers to assess ----

A  So the question you’re asking is what I think of the time gap between -- sorry, can you repeat that?

Q  Well, if you read the file, and you were obviously brought in new to the job, it was then your job.  You took it over.  What did you personally think of the time element it took for Jacqui Greene and Richard Ukhueleigbe when they were asked by the loss adjuster to produce reports on the maintenance and events that had happened?  It obviously took them over six months.  What did you think of the timing of that as a new person on the job?

A  I don’t -- I really don’t remember this particular, obviously, issue you’re referring to.

Q  Well, I don’t have the exact file, but I have the date of a letter from September 2006 from Royal and Sun Alliance, 21^st September 2006, Royal and Sun Alliance, D2. 

A  Are you able to provide a page number?

Q  I was just about to now for you.  (After a pause):  606, 607, I think, yes.

JUDGE COWELL:  606, 21^st September, and this is Lindsay McCambell(?).

A  Do you want me to read this?

MS. FLORES:  No, it’s okay.  Has everybody got the page?  Yes.  Now, the last paragraph on p.1, halfway through the paragraph which says “Failure” in the middle, just before that, it says:

“It is incumbent upon the insured to provide us with whatever information that we require in order that we can deal with the claims being made against them.  Failure to do so is in breach of the claims’ conditions in the policy.  In the circumstances, can you ask the insured to let us all have the outstanding documents within 14 days?  If the information is not provided, we will have no alternative but to reserve our position.”

          Had they reserved their position by then?

A  I’ve got no idea.

Q  You say you read the file and you were brought in.

JUDGE COWELL:  Anyone can read the file.  He is in no better position to comment on it.

MS. FLORES:  Okay.  So when did you change to Zurich?  Was it straight after that?

A  Good question.  I’ve got no -- I don’t deal with our insurance for the group.  So I don’t have any dealings with who we select and all the process and procedure.  I mean, I think that -- as far as I can remember, I think that, since I’ve joined, we’ve always been with Zurich and these were always historic insurers because Farr were -- Farr are not our brokers any more and nor are these two insurers our insurers any more.  We moved to Zurich, and I think it must have been something like December 2007, maybe, very soon, after that we joined -- we used -- started using Zurich I think.

Q  And maybe that was because, I suggest, your company breached the terms of your own insurance by not handing over evidence that was required for that particular claim.  But there is one other thing, on p.2, I think, of the same letter, and it’s the very last sentence.  It says:

“Lastly, can the insured advise whether the premises were unusable at the time and whether the rent was suspended?”

          I assume there is a cesser of rent clause in the lease.  You are personally aware there is a cesser of rent clause in the lease.

A  Yeah.

Q  Is that something that you feel, if a company couldn’t, or a sole trader couldn’t, trade, that you were contract bound to effect the cesser of rent clause, which you were covered for?

A  It depends on the circumstances.

Q  I mean, theoretically, if somebody couldn’t trade, the cesser of rent clause would be put into effect.

A  Yeah, I mean, it depends on the damage and nature of -- I mean, normally, the cesser of rent clauses in leases are normally from the point of view of -- let’s say, a property was completely damaged by fire damage or something like that, or it’s completely unusable, something of that nature.

Q  Floods, for example.

A  If a property was completely flooded and there was 2, 3 inches of water, whatever, or something of that nature, then that could be invoked sometimes.

Q  It’s quite … to say 2, 3 inches.  I mean, a flood is a flood.

A  Well, no, I’m just giving an example.

Q  If someone’s ceiling comes down, it’s still a flood, isn’t it?

A  Well, you can have a ----

Q  I mean, you’re, sort of, defining things.  A cesser of rent clause is in the event that somebody can’t trade.  I think that’s the point I’m trying to make.

A  Yeah.  I mean, that’s a fair point to make.

Q  Okay, that’s fine.  So I suggest that your company changed to Zurich after they clearly breached the terms of their own policy.

A  I don’t -- I mean, I think that -- obviously the company owns 15,000 properties.  Changing insurers is obviously quite a big -- is quite a big decision to make.  I doubt -- I very much doubt they will change policies over one particular insurance claim of a particular tenant, to be fair.  But also, I mean, this letter infers, doesn’t it, that where it says, “Can you ask the insured to let us have all the outstanding documents within 14 days?”, it’s asking us to provide the documents from the party that … trying to get them from (i.e. the tenant)?

Q  “I.e.”, sorry?

A  I.e. the tenant, presumably.

Q  No, no, no, I’ve just made that very clear.  They then go on to say, “otherwise the insured (i.e. yourselves) would be breaching the terms of their own insurance”.  So the information they were looking for, which I have substantial documents on, was from Richard Ukhueleigbe and Jacqui Greene, which took six months.

A  Okay.

Q  I asked for your opinion on that at the beginning because you had read the file, but obviously you don’t know anything.  Let’s just clarify that:

“As a result, the adjuster was not able to make the progress that had been hoped for, and, indeed, documentation they had asked to be made available was not.  Following the meeting with Ms. Greene and Mr. Ukhueleigbe … were asked to provide a detailed chronology of events.  This was supposed to have been completed in the same week, and indeed we understand that time has been set aside for the purposes.  In addition, we are waiting for a copy of the lease and also photographs that we believe were taken.  Having spoken to the adjuster today, it appears that, several weeks on, none of the documentation has been provided.”

          So that really clarifies it for you, that it was your own people who were delaying the payment of us, basically.

A  It doesn’t suggest that to me, but, you know … have to agree to ----

Q  Well, I’m just suggesting to you that already we have, you know, issues with delays in repairs and now I’m suggesting to you we also have issues in you effectively dealing with another body of people, i.e. your own insurers.  And I’m not suggesting it; it’s there in the evidence.  So are you aware that if we prove that you were negligent RSA can recover from you?

A  Pass.  I don’t know what the terms of the policy are.  I haven’t read the policy documents.  I’ve got no idea.

Q  I mean, they will pay your legal cost to win.  Obviously, that would be a big relief for all of you.  But if you lose and they pay us, they will recover from you.

A  I’ve no idea.  I mean, it says here, “Failure to do so [and they would be] in breach of the claims’ conditions in the policy”.  I’ve no idea, you know, obviously, verbatim what the claims’ conditions in the policy are.

Q  So, if you were to go against RSA suddenly, who would be covering you, Zurich or nobody?

A  I don’t see your point about “going against”.  I don’t think anyone’s going against anybody.  I mean, the way I read this is that information wasn’t provided to this insurer as quickly as they might have liked.  But that information to be provided isn’t just reliant on Community; it’s obviously -- that information is reliant upon who actually provides that information in the first place.  And, obviously, that information is being provided by yourself, the tenant.  That’s the way I read this.

Q  Well, it’s certainly not.  And we can go over it one more time, you know, if you insist that it’s us they’re waiting for information from.  As I said, the adjuster was not able to make the progress that it had hoped for because of Ms. Greene and Mr. Ukhueleigbe and “failure to do so is in breach of the claims’ conditions in the policy”.  So you can’t have it, Oliver; it was clearly your own people.

A  Yeah, but those people -- where it says, “Ms. Greene and Mr. Ukhueleigbe were asked to provide a detailed chronology of events”, in order to provide the detailed chronology of events, surely that chronology and that information has to be provided by the person who needs to make the claim, surely.  And, without that, they can’t know without -- they can’t make it themselves until they’ve got that information from somebody, i.e. the person ----

Q  So who’s responsible for making the claim?  That would be yourselves, wouldn’t it?  That would be yourselves.

A  Well, the information needs to be provided by the tenant.  We can’t make a claim without the information provided.  It’s not ----

Q  Sorry, what information is this?  Is it material damage information or ----

A  Any ----

Q  Because, I mean, obviously, clearly, we provided property claim forms as early as August 2005.  So now we’re -- here we are, July 2006, and the loss adjusters are saying that, “You haven’t provided the information”.  It’s in black and white, Oliver.  You can interpret it whichever way you like, but it’s in black and white.  We’ve read it three times now, so could you just accept that it was your own people who haven’t provided the information?

A  As I say, I don’t accept … I read it differently.

Q  Well, I don’t know how we can have any clarity on that because I read it as “Mr. Ukhueleigbe and Ms. Jacqui Greene were asked to provide a detailed chronology of events.  This was supposed to have been completed in the same week, and indeed we understand that time has been set aside”.  What don’t you understand?  Does it say here that the claimants haven’t provided the information?

A  The point I’m making is, if any tenant suffers any damage as an insured loss to their premises, obviously the usual process would be the tenant would ring or communicate to the landlord, “We’ve had a particular event occur at our premises.  We’ve got x, y or z damage.  The damage is caused by x, y or z insured risk”.  The landlord would then say, “Please advise as to the details of those insured risks, all the information, the chronology of that information, the details of it, the photographs and everything, to provide to the insurer”.  Obviously, there’s no reason for a landlord to want to frustrate that process because they’re covered by their insurance.  So the way I read this letter is Mr. Ukhueleigbe and Jacqui Greene had not provided enough substantive information, but that information has to come from somewhere.  It can’t come from the landlord; it has to come from the tenant who’s looking to make the claim under the insured risks.

Q  But surely Mr. Ukhueleigbe and Jacqui Greene were in the knowledge of the situation.  We’ve seen their statements back then.  They are all issues which were chronological issues.  The statement itself had not been provided.  So you’re, kind of, trying to widen the issue to try and avoid any kind of criticism of yourselves and to try and then firmly blame that on us when you’re doubting a company who’s saying that you would be in failure of your conditions by not providing the information.

A  Well, they can’t write to you, can they, because ----

Q  No, no, this was on disclosure.  I have read this on disclosure.  This is not my information.  This is your own information.

A  Sorry, I’m not with you.  This letter was dated 25^th September.  Is that 2006 or 2008?

JUDGE COWELL:  It is ‘06.

A  2006.  So obviously this is at the time of the claim.  They’ve written to say they haven’t had enough -- sufficient information from us, Community Housing Association.

MS. FLORES:  They haven’t had any information from you.

A  Well ----

MS. BHALOO:  Your Honour, I am sorry ----

JUDGE COWELL:  I do not think this really matters.

MS. FLORES:  I’m suggesting, your Honour, that not only the defendant takes their time to repair damage or expense, but then they can’t even provide the information that an insurance company needs.  So it’s hardly -- in our lease it says to do as fast as possible money -- you know, to pay -- that’s a breach of their own -- and their own insurers are saying the same thing as we’re trying to suggest now.  So the statement of Mr. Ukhueleigbe on 699 of D3 ----

JUDGE COWELL:  These are the draft statements.

MS. FLORES:  These are the statements that, according to Mr. Ukhueleigbe, were actually written by the loss adjuster, Mr. Hines, which sounds very corrupt to me.  So not only could they not get these statements they were also then written by the loss adjuster.  But Mr. Ukhueleigbe states his name, his contract.  He states evidence regarding the works he’s carried out.  He states he went upstairs.  He’s checked a few things.  He relates to the Orchard system.  He says he rebooked the work.  He doesn’t believe that the damage was worsened.  Again, he goes on, about January 2005, a further leak is reported, received a further complaint.  The second problem was 106.  He talks about March, then January again.  There’s nothing in this that needs the claimants’ assistance.  The next incident he was involved with was the tenant’s flat.  He was contacted by Jacqui.  He called round.  We were repainting.  With regards to the glass brick, he knows nothing about it.  And he doesn’t even sign it.

Now, I’m suggesting to you that (1) he didn’t even write it, but (2) he didn’t need my assistance.  I had filled out at great length a property claim form in August 2005.  This is the same incident.  It’s still not been dealt with.  And this statement, which is referred to in the September 2006 email, a whole year later, more than a year later -- the information is still not forthcoming to your insurance company.  And they highlight the cesser of rent clause.

So, if we prove that you failed in your jobs, you think that Zurich help you to   -- because obviously RSA are covering you here today.  They’re paying all the legal costs of today.  So are you saying that if you’ve wasted their time, taking us all the way to court and making us prove you did wrong -- are you saying that they won’t recover from you?

A  I’ve got no idea.  I’ve really got no idea.

Q  Right, okay.  It’s like a salaried priest who says he wants to put a cross at the top of his steeple and he can’t pay a labourer to do it out of his own pocket.  It’s the – -- you know, he has to get a collection from the church.  You seem to be a charity that needs a collection from everybody instead of paying the claimant for the work that is outstanding, in fixing the work outstanding and paying for the business interruption.  Anyway, you’re a bully.  That’s what you are.  Don’t laugh at me.  Now, let’s look at this.  You were employed by Grange in November 2007 as a commercial director of Grange.

A  Sorry, November 2007, I was employed by One Housing Group.

Q  Sorry, February 2007 ----

A  Right.

Q  -- you were appointed as a director, a commercial director, of Grange, which is an industrial and provident society.  Now, your job description is to do with internal controls and risk management.

MS. BHALOO:  I do not even know where this is coming from, your Honour.

JUDGE COWELL:  What is it?

MS. FLORES:  And it is says in your contract that Grange Management is responsible for ensuring that adequate systems of control are in place and that those systems are designed and managed to eliminate the risk of failure and to achieve business objectives, to provide reasonable but not absolute assurances against the material lost.  Would you say that’s an accurate reflection of your job as a risk manager?

MS. BHALOO:  Your Honour, I have no idea what Grange has to do with anything.

MS. FLORES:  I’m asking ----

JUDGE COWELL:  Where is this coming from?

MS. FLORES:  Could I just say what I’m trying to establish here and then maybe we’d understand why ----

JUDGE COWELL:  What are you reading from?

MS. FLORES:  In the same way as I asked Jim Gorman, “Who is he?”, the court should know who this guy is and what he does.  He’s a risk assessment manager.

MS. BHALOO:  Your Honour, I would like some disclosure.

MS. FLORES:  Now, he is -- I am simply trying to put you in the picture of who this man is and why he’s been brought in at a late stage to effectively - and you probably love this - be the hit man to us.

JUDGE COWELL:  Where is all that written?

MS. FLORES:  It’s research done on Oliver.

JUDGE COWELL:  On what?

MS. FLORES:  It was just researched.

JUDGE COWELL:  Researched.

MS. BHALOO:  Your Honour, it is certainly not in the disclosure, whatever it is.

MS. FLORES:  Well, certainly, you know, I’m sure you’ve done a lot of research on me.  We’re all entitled to research who it is that’s messing up our lives, aren’t we?  I just want to establish he’s the assistant commercial director of One Housing Group.  He’s employed by One Housing Group.  He says that he’s a -- commercial management.  Monique said they’re commercial management.  They’re brought in to commercially manage.  I don’t know if that’s by contract or what.  But I know that at the same time he’s also employed by another body as their commercial director to assess risk damage, to eliminate risk.  What I’m saying is, this is who this man is.

JUDGE COWELL:  Can you let him answer?

MS. FLORES:  Well, he hasn’t answered.

A  Well, give me a chance.

JUDGE COWELL:  Of course.  He has not had a chance yet.

A  My previous employment was with Affinity Housing Association, which is another housing association.  One of their subsidiaries is called Grange Management.  So Grange Management has absolutely nothing to do with my role currently.  As I said, my current role is as a commercial director for One Housing Group, and that role obviously encompasses managing all of their commercial assets, nothing to do with risk.

Q  So Grange is a subsidiary of your former employer.

A  Employer, yeah.

MS. FLORES:  You are not with Grange any more.

A  No, not since November -- well, October, call it, 2007.

Q  Right.  So, Oliver, Mr. Barnett, I’d just like to take you through some of the events that led to the break-in of our property in a sort of chronological order.  I’ve just, unfortunately - I do apologise - got the bits of papers on it, but luckily they’re in date order so I should be able to reference them to the files.  In November 11^th 2008 -- sorry, your Honour.

JUDGE COWELL:  Is it a document or statement or what?

MS. FLORES:  Emails.  They’re all emails from November.  So November 14^th, 2007, which is when Oliver was brought in to the company.  It’s on disclosure.  It’s a letter from Chris Natt to Oliver Barnett, November 2007, the 14^th.  (After a page):  752, sorry, your Honour.

JUDGE COWELL:  752 in D3?

MS. FLORES:  D3, yes.  Have you got that, Oliver?

A  I have, yeah.

Q  In this email, in the second paragraph in, it says, “I don’t know why this matter has not yet been resolved”.  It’s basically an indication that you should deal with Jonathan Simpson, the councillor, who’s just written a letter to Mick Sweeney regarding the state of the gallery and the electricity cupboard and all sorts of other issues which the court has heard.  And you’ve been asked to make the reply, haven’t you?

A  Mm’hm.

Q  Okay.  On 16^th November, from Andy McCafferty(?) to Oliver Barnett ----

A  (After a pause):  760.

MS. FLORES:  760.

JUDGE COWELL:  Thank you very much, 760.

MS. FLORES:  It’s the first paragraph, your Honour, “Oliver, as discussed in our telephone” -- Andy McCafferty is Farr Plc, yes?

A  Mm’hm, yeah.

Q  “As discussed in our telephone conversation this afternoon, if the claimant asks you for an update on her claim when you meet her on Monday” -- so that was obviously before you had come to meet me.

A  Yeah.

Q  “She’s advised to ring the two insurers dealing” -- would you say that that was the correct -- would you say you were ill advised?  Because, obviously, it’s very clear from what the courts have heard that it’s the insured that deals with their insured.  That would be yourselves, who deal with -- so would you say that this was the wrong advice to ask us to be thrown into the lion’s den and deal with two massive insurance companies?  I mean, did you think that was right?

A  I didn’t think … right.  At the end of the day, from my perspective, I just want to be trying to get things done in, sort of, a -- pragmatic and quick way as possible.  But whether it’s right or wrong, I don’t really know.

Q  Do you know the procedure now by any chance?

A  Sorry?

Q  Do you know what the procedure is now?

A  Well, I don’t think it’s necessarily a procedure set in stone.  I think that -- I suppose ideally they should have said -- sorry, let me just read this again, sorry.  (After a pause):  I mean, generally speaking, you know, the person making the claim should really come through us and then, obviously, we would then deal with the insurer.  So, you know, I think you’ve got a point that, you know, it should’ve been directed to us, rather than us -- rather than saying to us for you to contact them direct.

Q  Right, okay, thank you.  The same date, email from the financial controller to yourself.  That would be at 10.02 on the same date, 16^th November.

A  What page number?

Q  Sorry, I’m just trying to find it now.  10.02, it’s copied to Chris Natt, Mick Sweeney, Jacqui Greene, John ----

JUDGE COWELL:  Which page?

MS. FLORES:  It’s the same date.

JUDGE COWELL:  Yes, I have got that.

MS. FLORES:  It was on disclosure file unless it’s been removed.  I got this from the original file.  I found there’s a few things that have been removed already.  Maybe you don’t have it, but I certainly have it.  Would you like to see it, Ms. Bhaloo?  And perhaps your Honour could read it.  It’s just the highlighted section that I’m referring to.

JUDGE COWELL:  A lot happened on the 15^th, but I have not so far found the 16^th.

MS. FLORES:  Yes, I’ve got a few from the 15^th as well.  (After a pause):  I’ve got … shall I pass that to his Honour?

MS. BHALOO:  Yes, sorry, I am just trying to see if I can find it.

JUDGE COWELL:  (Handed).  Thank you very much.

MS. FLORES:  Sorry, your Honour, it’s the highlighted copy.  You perhaps could kindly read it for us because I don’t have it in front of me now.  It seems to be the only copy. 

JUDGE COWELL:  (After a pause):  Yes.  I can return it to you.

MS. FLORES:  Thank you.  It’s a very short section.  I’ll just read it to you.  It says, “I have” -- it’s from the financial controller to Oliver Barnett, copied to Chris Natt, Mick Sweeney, Jacqui Greene, John O’Brian, Jim Gorman and Richard Ukhueleigbe.  It says:

“Oliver, I have chased our previous insurance brokers, Farr, to give me an update.  They have sent an email to Royal and Sun Alliance to ascertain if there has been any development on which insurance company should be dealing with the claim.  It is a complicated claim and I would like you to go through the witness statements given by Richard and Jacqui to RSA for background information to get a better understanding.  I have copied the last email received by property services from Farr, which suggests that the issues between the insurance companies are not as clear-cut as we would like to think.”

          That’s from Tushar Shah to yourself.  Do you recall that at all?

A  No.  I can’t remember every email I get.  Obviously, if it’s there and you’ve got a copy of it, then that’s -- it’s fair to say.

Q  So was that your first knowledge that there was problems with the insurers?  They say it’s not clear-cut.

A  Well, it’s soon after my joining, so it may have been that -- obviously, it’s very early knowledge of my knowing that because it was very soon after I joined, so it’s fair to say that.

Q  So you had quite a lot thrown at you.

A  Well, obviously, when you first join a company you’re inundated.

Q  You had to deal with a … dispute with an insurance company, a councillor, a housing minister, all in, probably, the first week of your employment.

A  Yeah.

Q  On 15^th November, at 18.16, you state -- this is from Oliver Barnett to Jim Gorman, John O’Brian and Richard UK, cc‘d to ----

JUDGE COWELL:  From?

MS. FLORES:  From Oliver Barnett to John O’Brian, James Gorman and Richard UK, cc‘d to Tushar Shah, Chris Natt, Mick Sweeney and Jacqui Greene.

MS. BHALOO:  Did you say the 15^th?

MS. FLORES:  15^th November 2007.  Is it also not in the file?

A  No, it doesn’t seem to be there.

Q  I remember we got some disclosure files from you very late in the day, maybe a day on the deadline, and they were very badly put together, with circles round them and in no date order, but I happened to read all of them.  I often can’t find them on your own files now, but that’s okay.  This one refers to external contractors you said that you were going to bring in.  You, obviously the new man on the job, say, “Hello gents”.  Maybe I should pass this to Ms. Bhaloo and then the judge first.

MS. BHALOO:  Thank you.

JUDGE COWELL:  (After a pause):  When you say, “I understand from the tenant there are still leaks in the premises, which I will be able to evaluate on Monday”, you went on Monday, I understand from your statement.  Did you see any leaks?

A  From what I remember, because obviously it was three years ago, the premises when I was there … pretty good condition for a property of its type and nature.  There were -- there was evidence, if I remember correctly, of historic leaks or damp, or what have you, but I don’t remember at the time there being any form of leaking or dripping per se.

Q  Just a minute, “No leaking or dripping”.  Was any leak or drip pointed out to you?

A  Jo gave me, obviously, a full tour of both properties.  I was there, I suppose, a good -- at least an hour.  So everything -- I was given, obviously, the full history and -- you know and obviously took it in as well as I could.  And obviously the areas in question and historic issues were pointed out.

Q  Yes.  But was any leak or drip then happening pointed out to you?

A  I can’t remember.  I don’t believe there was anything current at the time, but I could be wrong.  I don’t remember.  I mean, the purpose of my visit was really just to try and get a -- you know, obviously, a handle on the issues and the claim and meet Jo Gavin and to try and find a way forward and just try and, sort of, get it all resolved.  I don’t think the reason for the meeting was to deal with a particular leak at the time; I think it was just to, sort of, meet up and, sort of, try and get a handle on everything.

MS. FLORES:  But you do remember saying that you employ external contractors.  That might trigger your memory.

A  Yeah.  I -- yeah.

Q  So there was obviously ----

A  Yeah, I said ----

Q  -- some outstanding issues.

A  Yeah, yeah.

Q  You remember now.

A  Yeah, what I said was that “Obviously, if there have been historic problems of things not being dealt with as swiftly as they should be, that in the future, going forward, that we would use external” -- all our contractors, to be fair, are external.  We don’t have in-house maintenance teams.  But I ----

JUDGE COWELL:  I am sorry, can you tell me what you said and then you can comment on it?  You said “If historic problems …”.

A  Sorry.  I said, “If historic problems haven’t been dealt with swiftly enough” -- I said, going forward, we would use external contractors, who I had experience of using previously to try and ensure that things were dealt with swiftly if in fact they hadn’t been dealt with in the past.

Q  Yes.  Did you, after the meeting, raise any kind of works order to anybody?

A  I think there was some issue that came up during my time, since I started there.

Q  No, please answer the question.

A  I am answering it.  If ----

Q  Did you raise any work order?

A  Yeah, as I was saying, I did raise ----

Q  You did.

A  I did.

Q  What was it?

A  I can’t remember off the top of my head what the actual issue was, but I remember using one of the external parties that I’d said I would use, who are called All Done Design & Build, for a particular problem.  I mean, Jo would probably be able to refresh my memory, but there was a -- I did bring in an external party to deal with a particular issue there.

Q  But you cannot remember what that was.

A  Not off the top of my head, no.

Q  No, I see, cannot remember what it was for.  (After a pause):  Yes.  As you say, “It is my intention to get external contractors involved to sort out the problem once and for all”.  That is after the reference to “There are still leaks in the premises”.  You say, “I understand from the tenant that there are still leaks in the premises, which I will be able to evaluate on Monday”.  I am sorry, you have not got a copy.

A  No.

MS. FLORES:  It seems that nobody has got a copy, but I did get this from disclosure.

JUDGE COWELL:  Yes, fine.  Anyway, “It is my intention to get external contractors”.  At the moment you cannot remember what it was for.

A  No.

Q  But you remember using All Done Design.

A  There was some Thames Water issue or something.

JUDGE COWELL:  Can I have -- that is the email.  That is an email of what date, remind me?

MS. FLORES:  It’s 15^th November 2007, at 6 o’clock in the evening, to the maintenance team, the management and the CEO.

MS. BHALOO:  Your Honour, I do not know if your Honour caught that; the witness said he thought there might have been some Thames Water issue.

JUDGE COWELL:  Yes, “I think it may have been … Thames Water issue”.

MS. FLORES:  I could remind you of some of -- I did show you each side of the gallery.  Do you remember there was leaks?  Maybe if we look in G1.  I think it’s tab 5.

JUDGE COWELL:  Is this tab 13?

MS. FLORES:  It’s the one with the electric cupboard.

A  Tab 5, yeah.

JUDGE COWELL:  No, tab 13.

A  Sorry.

MS. FLORES:  13, sorry, your Honour.  This was something that you personally, as a project manager, sorted out for us.

A  Right.

Q  If you look at tab 13, p.100, the 10^th of the 10^th.  If you go to the next page, there’s more pictures.  But I think when you referred to historic damage you were probably talking about current damage, which is p.104.

A  Yeah.

Q  One of the larger offices.  If you look at the far right at the top of p.104, there’s leaking coming into the skirting board of one of the larger offices.  And I think you may remember me pointing it out to you.

A  I don’t doubt that.  I’m sure you would’ve pointed everything out to me.

Q  Right, you don’t.  I was just trying to help you remember.

A  Yeah.

Q  I was just trying to jog your memory.

A  Sure, sure.

Q  And obviously there was the leak in the cupboard.

A  Yeah.

Q  You would have seen that.

A  Yeah.

Q  And that’s what you …

A  Okay.

Q  Right.  Now, on 20^th November 2007, you met with myself.  That would be -- 3.10 email and there’s also -- there’s three emails I want to refer to on the 20^th.  There’s the one at 10.54 from yourself to Chris Natt.

JUDGE COWELL:  One moment.  Forgive me for being very fussy.

MS. FLORES:  I’m sorry.

JUDGE COWELL:  But what he says in para.9 is “I met Jo Gavin at the properties on Monday, the 19^th”.  So let us start with that.  Is that correct?

MS. FLORES:  Yes, yes.

JUDGE COWELL:  So it is Monday, the 19^th.

MS. FLORES:  Yes.

JUDGE COWELL:  “Meeting Monday”.

MS. FLORES:  The 19^th.

JUDGE COWELL:  That is the day when you showed him round.

MS. FLORES:  That would be the day exactly, your Honour, that I showed him round.  I write a letter to Alan Harris the next day where I make reference to it, to that meeting.  I say:

“I met with the new commercial director, who’s been a week in the job, and he would like to see either UKU or Royal and Sun Alliance accept indemnity or CHA will have to take them to court, he says.  He believes that it is a public liability matter and that Royal and Son should cover them.  He says he’s under political pressure to answer to the housing minister and they have been approached by the housing minister re the allocation of stocks of millions of pounds worth of cash in contracts.  He finishes with a very nice gesture where he said verbally that he will renew the lease of Scarlet, one that they haven’t renewed since 2006, and he would give us five more years at the same rent of 5,500 as a gesture of goodwill and an apology no matter what occurs, even if we get paid fast, as they were very sorry.”

          Do you remember saying that to me, Oliver?

A  What page are we on?

Q  It’s on page -- C4, p.171.

JUDGE COWELL:  C4, 171.

MS. FLORES:  Sorry, it’s the same reference.  It’s not that exact letter, but it’s the same reference to the same subject.

MS. BHALOO:  We have not got that letter.

A  What page number, sorry?

MS. FLORES:  … Jonathan Simpson one.  Okay, the Jonathan Simpson will do because, really, I’m just referring to the same matter of you saying that you wanted to sue Royal and Sun Alliance and that you were going to offer us, as an apology from the association, to renew the lease.  I mean, Woolf Simmonds had written to us in 2006 and said that they would renew the lease once the liability claim was over and done with, but it obviously took two years to that point and no-one had really renewed our lease, which was very unstable for us.  (After a pause):  I mean, I don’t know if it would help your Honour that this has got a reference to July 2006 from the defendant’s solicitors in D2, 521, 522.

JUDGE COWELL:  C4?

MS. FLORES:  D2, 521.

JUDGE COWELL:  D2, 521.

MS. FLORES:  521 to 522, two pages.  The second page, the sixth line down, clarifying -- sorry, fifth line down, it says:

“Although the outcome of the insurance claim still needs to be clarified, various different matters have been mixed up and I feel I am being blackmailed over the issue of 104 Cromer Street lease renewal.  Shouldn’t I expect, for example, a formal rent review notice to be sent to me, following which I have the right to reply with a counter-notice within 21 days if I disagree with it?  Both lease renewal and responsibility for the loss following … hereto I would be willing to accept minimum compensation for loss and I would welcome the granting of a new lease along the lines proposed in your letter.”

          I think what I’m trying to point is there was a long-standing issue with the lease, and the lease ran out in June 2006 and was being used to blackmail me for a long time.  I should have formally had notice or indeed be taken to court.  I also think I should have been taken to court by Oliver, not simply have bailiffs being sent in, because there was outstanding issues, but obviously we’ll get further along to that.  But that was the time I was meant to be having a lease renewal, which was kept, I would say, as a cherry on a cake to get me out.

On the same day, going back to God knows what file -- but there’s three emails on 20^th November.  Sorry, you’ll have to bear with me for a second.  I think one of them -- have I read out one of them to you?  I’ve read out one, haven’t I?  No?  About the contractors.  (After a pause):  Okay, well, I’ll just stick with the two.  One is -- sorry, I know what I read to you, the fact that Oliver had met me the day before and had offered me a rent-free period and also suggested that he would sue Royal and Sun Alliance and that he’d had a letter from the housing minister, which he in the first week of his job had to deal with.  But he did seem very genuine and, in my opinion, I think he had the right idea then, but that will be a matter for him to say “I told you so” to the rest of them because he was made to back down, and I’ve read that on disclosure.  But we will see whether he was right or not.  I think you were.

A  I don’t know.

JUDGE COWELL:  I do not think that is a question.

MS. FLORES:  Okay.  20^th November 2007, there is an email from Tushar Shah to Oliver Barnett at 10.54.  It was on disclosure.  So D3, 763, your Honour.

JUDGE COWELL:  763, D3.

MS. FLORES:  There’s two.  Have you got that?

JUDGE COWELL:  Yes.

MS. FLORES:  There’s two emails.  Obviously, there’s the one about the insurance brokers, but there’s another one which is from Anita to Liz Cannings of Farr, and she says that there’s a tri-party meeting to be set up.  So that’s also the indication that there was now Plexus Law on behalf of Royal and Sun Alliance who were trying to sort things out, to try and get the UKU people back involved.

JUDGE COWELL:  What is the question for the witness?

MS. FLORES:  On that one ----

JUDGE COWELL:  Was he at the meeting?

MS. FLORES:  On that one it says, “To Oliver Barnett from Tushar Shah … email from our previous insurance brokers who are still handling the claim.  This may be why they have gone to seek publicity”.  So the financial controller was saying to you, who’s new in the job, “We’re just scaremongering everybody.  We haven’t, you know” -- I would suggest -- well, I can’t suggest, I’ll ask it as a question.  Did you think at that point we were being painted to be perhaps wrong, ourselves?

A  Wrong about what?

Q  About everything.

A  I don’t know.  I mean, what I do recall, what’s obviously written in, I think, in the second email, is that when I looked into it I had a response from Farr saying that they didn’t feel, the insurers, that there was enough substantiation for the claim.

Q  That was later, Oliver.

A  Sorry?

Q  That was much later.

A  It’s the same day, isn’t it?  Same day.

JUDGE COWELL:  It is the same point made in the email.

A  Yeah.

MS. FLORES:  Sorry, yeah, but Alan Harris has been employed in December 2006 and there was a pre-action protocol set in place in July 2006 where they asked us to evidence our claim.  We sent cash flows.  We sent photographs.  We sent 20 different documents, including a dated, not -- as everyone seems to say it’s an undated business plan, which your Honour has seen.  It says April 2004.  It’s in the files.  It’s the same business plan.  There was a doing down of us as claimants.  And at that -- it was only when the tri-party meeting was set up that the attack was turned on us:  “Well, try and get them to produce accounts”, you know, all these various things that cost us money and including employing solicitors.  And you can see from the statement I have solicitors.  We’ve had to, in specialist areas, employ solicitors, to our own cost.  And I think that, I’m suggesting, everyone thought we would never make it to court.  And it continues to be that again, where you’re bleeding us dry financially, leaving us in a completely desperate situation where we’ve lost absolutely everything, and it continues.  And it will probably continue after Friday.  So the idea of us producing things at more extra cost was just another tactic.  So was getting us into court, another tactic, to see if we’d -- your Honour has many times said it seems the insurers were waiting for something.  And I would suggest they were waiting for our death.

A  Well, all I can say from my analysis of this is since -- obviously, at the time -- was that they wanted further substantiation, yes.  They wanted you to employ a solicitor, yes.  You obviously would have incurred further costs for doing so.  As we all know, insurers are not -- you know, don’t jump at paying out the things.  But, normally, when there is the right sort of substantiation - I’m sure, you know, we’ve all experienced insurance claims ourselves - you know, they do pay up.  But at the time I couldn’t make an unilateral decision when I joined there to say, “Okay, this claim is substantiated.  CHA will pay up whatever is necessary”, because, firstly, I didn’t have -- I … would have been in the job very long, but, secondly, that’s what the whole purpose of insurers are for, for these types of situations.

JUDGE COWELL:  Yes, I quite follow.

MS. FLORES:  Okay.  But, Oliver, you are a very intelligent man.  You’ve got some serious job titles to your name and previously have as well.  Your very initial assessment, after a week, was to think, “Let’s sue our own insurers”.  That was your suggestion.

A  I don’t remember saying “suing our insurers”, but ----

Q  But do you see that, if you weren’t being indemnified and you were the policy holder who had to deal with the insurance, you could have worked with us.  I mean, I’ll give you an example.  Jacqui Greene wrote an email to their insurers, which was a bit late on in the day, and they said, “Oh, BT have lifted the cables”.  Now, BT, I know, didn’t lift the cables, but it would have got the claim through the insurers.  It’s ways of getting what you want, what we need, and I think that, as a risk assessment manager, that was your strategy, “Let’s go against the big guys, not go against the little guys”, unless I’m completely wrong and you are just a harasser.

A  Sorry, no, as I say, my role, really, was to try and -- obviously I wanted to end this as much as everyone else did and I could only act on the advice that I was given by our brokers, and that’s the usual process.

Q  Right.  Well, there’s an email, same day, 20^th November.

A  Twenty what November?

Q  20^th November at 2.33.  It’s at 2.33 from Anita Tomecki, 767, D3.

JUDGE COWELL:  767.

MS. FLORES:  And it’s an email from Tushar Shah to Anita Tomecki.  Who is she?

A  I think she was an administrator in one of the teams, I think.  I don’t think she’s there any more.

Q  Well, anyway, she says, “All hell breaks loose when Mick received a” -- sorry, it would be “broke” loose.  It’s a typing error:

“All hell [broke] loose when Mick [Mick being the director] received a complaint from the London Borough of Camden and, in view of the sensitivity of this claim, I thought that the last update was the one received in August and not the one you had received in September.  Please let us copy one another on this claim if either of our names does not appear in the email.”

          I mean, you were asked to respond to the London Borough of Camden also in your first week of the job.  What did you -- so you had a councillor.  You had Barry Goodwin who had been asked, on behalf of Gordon Brown, to respond to myself.  He writes a letter to Camden that says it doesn’t read good, and they contact yourselves to get your side of the story.  How did you handle that as well?

A  Well, it’s standard procedure when the chief executive of a housing association receives a letter, be it from an MP or a councillor, or anyone, that obviously that’s then passed down, because obviously Mick doesn’t have knowledge of the particular case.  So I was -- it’s pretty standard.  I would then draft a letter.  That will then be passed on to Mick and then they would say, yes, whether they’re happy with it or not, and then it would get sent out as a response.

Q  But you were very much asked to deal with quite a lot of things in your first week.

A  Yeah, I suppose it is a bit for a first week, but it’s pretty standard stuff for -- I mean, we receive letters from councils all the time and MPs, so it’s standard stuff at housing associations or indeed when you’re working for local authorities.

Q  But obviously that was a direct letter I’d written to Gordon Brown.  Barry Goodwin contacted Camden.  Camden had contacted yourselves.  We already had the housing minister.  We already had the councillor.  So it was quite a political situation and, you pointed out yourself, hundreds of millions of pounds worth of housing contracts potentially.  In your meeting with me you said you were quite anxious to get it sorted.

A  Yeah, obviously.  It’s better to have a dispute resolved than continuing on.

Q  Right.  Okay, we’ll move on.  In November 2008 -- sorry, I’ve moved from November finally.  In January 31^st 2008, this is with regard to the floor tiles.  It’s a letter from us to you, Oliver, titled “Rubber floor” ----

A  Don’t think that one’s in there either.

Q  -- an email, sorry, entitled “Rubber floor”.  It’s just a few lines.  Shall I just read it for everybody?  31^st January 2008 at 2.06pm.

JUDGE COWELL:  Yes, what does it say?

MS. FLORES:  It says, “Thank you for your response”.

JUDGE COWELL:  Who is it from?

MS. FLORES:  It’s from myself to Oliver, “Thank you for your response.  Just to let you know” ----

A  Number 790.

Q  790 in D3, yeah?

A  Yeah.

JUDGE COWELL:  Hold on, D3, 790.

MS. FLORES:  “Hi Oliver, thank you for your response” - I think that says “thank you”, but the hole’s through it - “just to let you know it is not carpet tiles.  They were commercial vinyl tiles and this is the quote below.  I trust you’ll be able to deal with this quickly as you state by the insurance”.  This is in regard to the floor tiles.  Now, Jim Gorman had been out, hadn’t he?  And he’d done an assessment with some photographs and that sort of thing.  Why then did the insurance not take it as a straightforward matter?

A  Sorry, take what as a straightforward matter?

Q  The replacement of a damaged floor.

A  You’re referring to the actual floor covering here, are you?

Q  Yeah.  The question had been asked by you, “Was it carpet tiles?”.  And I said, “No, they’re commercial vinyl tiles”.

A  Right, right.

Q  And there was some dialogue between us where we were clarifying which -- Matthew Greenhalgh from Farr Plc had asked you, “Ask the tenant, is it their property or is it your property?  And if it is your property we’re happy to have it as a material damage claim”.  And at no point have you, as the defendant, ever got back to Matthew and said, “Yes, it’s a material damage claim.  It is our property”.  In fact, you send him -- I mean, you knew in January we were dealing with commercial vinyl tiles.  I’m just wondering why your team didn’t effect that insurance claim very quickly.  I mean, there’s lots of excuses.  Monique says, “I wanted to sort it out.  I really” ----

JUDGE COWELL:  Would you like to ask one question at a time?

MS. FLORES:  Sorry.  Why didn’t you sort out that claim quite quickly?

A  Obviously, I can’t remember the details of this.  But, obviously, if you’re referring to the floor coverings, presumably, the floor coverings are part of the tenant’s effects.

Q  Sorry, you’re still saying that now, two years on.  You’re not aware, two years on, that that was your fitting.

A  I mean, I haven’t got a copy of the lease to hand, but I’m assuming, normally, in these leases that the floor coverings are the tenant’s responsibility.  I could be wrong.

Q  Not in our claimant file.  There is a direct reference to those vinyl tiles and they are not a tenant’s fitting; they are a landlord’s fitting.

A  Right.  I mean, that would be listed in the demise anyway.  And normally in a lease the demise will list what actually is the tenant’s responsibility and what’s the landlord’s.  So I’m assuming -- I could be wrong, but normally floor coverings are a tenant’s fixture.

Q  The floor coverings were put in by Kingsbury Construction.  They were damaged as a result of insured risk.

A  Right.

Q  Any repairing obligations, as I’ve pointed out, to Jacqui Greene and Woolf Simmonds, at the beginning of the tenancy were covered by insured risks.  Nobody’s doubting there was water ingress.  So what you’ve just said now about “I’m assuming, because of the lease …” is a bit farfetched because it’s an insured risk, water ingress, and it’s a consequential damage claim, which Monique has said is absolutely normal and standard.  So, with that in mind, why didn’t you ensure that we got that floor fixed, Oliver?

A  I think there’s a bit of ----

Q  And Jim ----

JUDGE COWELL:  Let him answer.

MS. FLORES:  I’m so sorry.

A  I think maybe there’s a bit of confusion here.  Obviously, when there is damage from an insured risk -- if there’s damage by an insured risk, the normal process is that insurers would pay out.  However, the point I was making was that actually, whether or not those floor coverings were put in by the landlord or not, when you took the lease, under the terms of the lease, the floor coverings would still be considered a tenant’s item, which, under the terms of the lease, it was down to the tenant to keep in good and substantial repair.  That’s standard in most leases.  That’s the point.  I think there’s a confusion here between whether it would be covered on the insurance, but I don’t think we’re doubting -- but the fact that it’s actually a tenant’s effect.

Q  So when Matthew Greenhalgh asked you -- sorry, said to you that it could be considered under a material damage claim, when he actually said, “As broker, we can consider it”, why didn’t you go back to him and say, “Okay, it is a landlord’s fixture”, which he’d asked you?  You didn’t reply to him.

A  Where’s that email?

Q  It’s in May.  Let’s have a look.

A  … I’m getting a bit confused … January to May.

Q  It’s May 2008.  So I’ve just ----

JUDGE COWELL:  Was a claim form ever filled in?

MS. FLORES:  Sorry?

MS. BHALOO:  I am sorry, your Honour?

JUDGE COWELL:  Was a claim form ever filled in for these tiles?

MS. BHALOO:  Your Honour, there were certainly ----

MS. FLORES:  There’s no claim form. 

MS. BHALOO:  -- references to claims being referred.

MS. FLORES:  No, there’s no ----

MS. BHALOO:  We never got the actual claim form.

JUDGE COWELL:  We have not got the form, no.

MS. BHALOO:  We have not got the form, but we have, for example, on 793, Monique saying she is emailing Karen Brett(?) and then she asks -- there are several emails.

JUDGE COWELL:  She asked for a claim form and never got one.

MS. BHALOO:  I do not know, your Honour, but there are certainly several emails from her.  When Matthew Greenhalgh says, “We can treat it as part of the liability claim”, there are several emails from her saying, “Why can’t you treat it as material damage?”.  He says ----

MS. FLORES:  There’s actually an email from Matthew Greenhalgh.  Right, okay.  It’s 813 on D3.  It’s p.813 on -- sorry, 819 on D3 file.  It’s the actual email from Farr Plc to Monique.  It’s the third paragraph along, “Should the floor predate the tenant’s residence … I shall happily add the details to the material losses claim”.

JUDGE COWELL:  Yes, I remember.  He took the two points which may or may not be ----

MS. FLORES:  So it’s them, it’s the insurers, saying that they will happily deal with the claim.

JUDGE COWELL:  They do not say that.

MS. FLORES:  And I’m asking Oliver why he didn’t if they were happy to.  The next relevant email to that is 831 in the same file.

JUDGE COWELL:  D3, 819 is 13^th May ‘08, “Not installed by claimant, not recoverable and not noted by the adjusters at the time”.

MS. FLORES:  And the response comes over a month later on p.831, where Matthew again writes to Monique, and he says:

“I cannot trace a response from you to my email on 13^th of the 5^th on this matter …”

          So he attaches the email -

“As I had advised at the time, what we can do is contingent on certain information.  Again, see email attached.”

          But what I’m asking you, Oliver, is why didn’t you respond?  You said Monique made assertions, very emotional assertions, that she just wanted it sorted, but she obviously wasn’t dealing with it.

A  I mean, I don’t know.  It seems that it was being -- from that email from the 13^th … it seemed it was being dealt with.

Q  It’s been dealt with, did you say?  It’s been ----

A  Well, no, they said in that email that -- I think they -- what they said is incorrect in the email.  I don’t think that really matters, but they said that the -- well, you’ve read the email.  It says that the -- what they were looking into is to whether -- why it wasn’t mentioned at a previous point in time.  Isn’t that what they’re saying here?

Q  No, it’s a direct response.  You see, Matthew says:

“Should the flooring predate the tenant’s residence in the property, I shall happily add the details to the material losses claim and arrange an adjuster.  However, we’re slightly concerned that the damage was never raised before.”

          “Never raised before”, which means you didn’t tell your insurers anything.  There’s no claim form.  There’s no evidence that you contacted your insurers at all.  He says:

“I note reference to photographs of this flooring taken in January 2008 following a surveyor’s visit …”

          That would be Jim Gorman, which I arranged.  “Send me a surveyor”.  Jim turned up, took the photographs -

“These have never been supplied to ourselves nor has the report.  Presumably, this surveyor was able to ascertain that the matter linked to the original claim [i.e. that’s why we’re contacting Farr now to get to the original insurers] and can you confirm or deny all of the above?”

A  I think what he’s saying there -- obviously, from reading that, it suggests that Jim Gorman, when he went down to the property, obviously didn’t believe ----

Q  He’s not saying that, Oliver.  He’s saying there’s a surveyor’s report.

JUDGE COWELL:  There is no point in this witness giving his interpretation of somebody else’s email if he was not involved.  It was dealt with by Monique Jamera.

MS. FLORES:  She’s his assistant.

JUDGE COWELL:  She reports at the bottom of p.831.

MS. FLORES:  Okay.  She’s Oliver’s assistant.  I suppose that’s the link.

JUDGE COWELL:  Yes.  Anyway, that is the answer she gave.

MS. FLORES:  Yes, and, just underneath it, it says: “I’ve been discussing this matter with Oliver and reviewing your previous emails.  We would like to know if we can treat the replacement of Ms. Gavin’s floor as a new claim under the building insurance instead of making it part of an ongoing liability saga,

which …”

JUDGE COWELL:  Sorry, where are you reading from?

MS. FLORES:  Just underneath p.831.

JUDGE COWELL:  Underneath 831.

MS. FLORES:  She says -- sorry, 831, the middle email:

              “Hi Matthew,

“I’ve just been discussing the matter with Oliver [who is Monique’s boss].”

          I know there’s little point in me questioning Monique.  I may as well question Oliver because he had the direct involvement with myself regarding the issue right from the start.  And I was told by Chris Natt that Oliver would be dealing with it, and most of my contact was with him.  Occasionally, Monique would send me run-of-the-mill emails.  But Oliver is the main -- he was my commercial manager.  I mean ----

MS. BHALOO:  Your Honour, I am sorry, I may have inadvertently misled your Honour when I said there was no actual claim form.  There was not a claim form, but on 809 we have Monique sending the quotes.

MS. FLORES:  I was going to get to that.

MS. BHALOO:  Sorry.

JUDGE COWELL:  809.

MS. FLORES:  Yeah, I was going to get to that.

JUDGE COWELL:  Two quotes for the repairs.

MS. FLORES:  Yes, 809.

MS. BHALOO:  And 7 ----

MS. FLORES:  I was going to get ----

MS. BHALOO:  Sorry, it was just his Honour asked me a question.

JUDGE COWELL:  Yes, I did.  I asked.

MS. BHALOO:  I wanted to make sure that I answered it properly.  Your Honour, the other page I should refer you to is 793.  But, your Honour, it’s just for completeness.

JUDGE COWELL:  793.  So two quotes were sent.  Two quotes sent ----

MS. FLORES:  In April.

JUDGE COWELL:  -- on 15^th April.

MS. FLORES:  April, yes, because Monique ----

JUDGE COWELL:  And 793.

MS. BHALOO:  That was just the notification your Honour asked about.

MS. FLORES:  Yes, I was going to get to that, as I said.  I don’t jump the gun on your submissions.  I mean, I was going to get to that, thank you.

MS. BHALOO:  Your Honour, I was merely answering your Honour’s question.

JUDGE COWELL:  Quite.

MS. FLORES:  So we’re still in January, about it not being carpet tiles.  We jumped along there to evidence that, obviously, it would have been considered.  Monique and yourselves were taking it seriously in terms of asking, sending contractors down and indeed, as Ms. Bhaloo has just pointed out, two repair orders were effected by yourselves:  one from Hugh Construction(?) and the other from All Done Design.  Right.  So in February, dealt with January -- actually, there’s one more to January, sorry about that, may as well stick with the same months.  In January -- again, that’s just a reference to you saying you’d sue them, so we’ll leave that. So February:  this would be about the time we were being forced to go legal.  Now, I would suggest to you that you were given some very strange advice by Matthew Greenhalgh, which is available on 1^st February 2008 at 10.40.

A  I see …

Q  What page is that one on?

A  792.

Q  792.  I do apologise about the page references.  It’s just hard to take all the files home in the short amount of time in the evening I can work on this.

A  (After a pause):  Yeah, I remember this email.

Q  So I would suggest here that we were being forced into a legal battle.  I don’t know if I should just read this or maybe, Oliver, since you say you can ----

JUDGE COWELL:  What is the question arising out of it?

MS. FLORES:  It’s more evident by reading it.

JUDGE COWELL:  I see.

MS. FLORES:  Should I read it?

JUDGE COWELL:  Well, I’m reading it at the moment.

MS. FLORES:  Okay, well, we can all read it then.

JUDGE COWELL:  “First of all, any acceptable disclosure of documents”.  (After a pause):  Yes.

MS. FLORES:  So at this stage the ombudsman has been mentioned.  But Matthew’s saying that, yes, the matter is outside the protocol stage, 18 months outside the protocol stage, where they must accept or deny liability.  What we didn’t realise is, behind the scenes, they had already denied liability -- I’m sorry, you breached the terms of your insurance.  But he’s saying to you, your broker, “Yes, the matter is outside protocol at this stage.  However, as the current position is one of discussion of quantum, that is not an issue”.  Do you know pre-action protocol at all?  Do you know the stages?  Because liability has to be accepted or denied before quantum is even talked about.  And we had written a lot of complaints to the housing association, through their complaints procedure, saying, “We are left in a position of indifference”.  We have never had a response as to whether anyone is covering our losses.  So to ask us then to jump the gun and assess quantum, which we had provided as much information as we could without going into any extra legal costs, i.e. £2,000 for a new accountant, which we had to do, £7,000 for solicitors, which we had to do, now £50,000 for solicitors, which, you know, we’ve had to do ----

JUDGE COWELL:  There we are.

MS. FLORES:  So are you saying that ----

JUDGE COWELL:  I have read what he is saying.

MS. FLORES:  Right, okay.  So I don’t need to go through.  But what do you remember of this?

JUDGE COWELL:  What does it matter what he remembers?

MS. FLORES:  No, it’s probably badly phrased, your Honour.  I don’t know how to do ----

JUDGE COWELL:  I know.

MS. FLORES:  You know, I’m not a legal person.  I don’t know ----

JUDGE COWELL:  No, I know you are not.

MS. FLORES:  Just, finally, I suppose, on the issue … of the floor, the floor happened as a result of the 2005 flooding.  Jessie Cooper, a surveyor, as Monique suggested, never added that to the claim, which would be standard.  But it would seem, especially with the way Matthew is talking to you, that the quantum is very much being used as an excuse to not forward the liability claim.  Would you agree with that at all?

A  Well, from what I can ----

JUDGE COWELL:  It depends upon one’s meaning of “excuse”.

MS. FLORES:  Well, further delay tactics, your Honour.

JUDGE COWELL:  Could be.

MS. FLORES:  And also your surveyor, Jim Gorman, didn’t produce any

evidence ----

JUDGE COWELL:  What of?

MS. FLORES:  Well, of the floor damage, of the photographs in January.

JUDGE COWELL:  Yes, he lost the photos.

MS. FLORES:  And also at the time of the incident, before we got the loss adjusters involved, no surveyor visited the premises to maybe a put a hole in the ceiling, find out anything further about the ceiling or to properly survey the premises and potential ----

A  If I’m right in saying, isn’t this … you’re saying that the floor never got put into the original claim in 2005 and then, if I’m right in saying, there’s this issue about could this floor, when it was actually noticed or it came up that the floor -- we suggested … have the floor put into a new claim with Zurich.  I think, for whatever reason, it wasn’t.  I think you had said at the time that you’d rather it be kept with the old insurers.

Q  No, I said I didn’t want to commit fraud.

A  Right.  Well ----

Q  And it would have -- definitely used against me if I did.

A  Right.  Well, as I say, that’s my recollection.  But, anyway, I don’t really understand what you’re asking me.

Q  I don’t know what I’m asking you either, but I think it was really to highlight that that was the situation going on at the time.  We’re just going to go from March to April, leading up to the events of the break-in.  Now, March -- I’m sorry, they were 2007.  I’ve missed them, right at the beginning, but it doesn’t matter.  Sorry, we’ll just quickly skip back to just one thing I missed, which is the 8^th March 2007 email from Chris Natt to -- p.672 to 673.

JUDGE COWELL:  Is this before ----

MS. FLORES:  It’s just in ----

JUDGE COWELL:  -- this witness was employed?

MS. FLORES:  Yes.  But it’s in regard to the policy, which really does have ----

JUDGE COWELL:  Sorry, D what?

MS. FLORES:  It’s actually D3, 672.

JUDGE COWELL:  672. 

MS. FLORES:  And it’s the first ----

JUDGE COWELL:  One at the top.

MS. FLORES:  Yes, it’s the first email.  Do you want me to read or ----

JUDGE COWELL:  What is the question to this witness?

MS. FLORES:  Well, I mean, it’s more evident by reading it:

“If the insurers are going to say we’re in breach of our policy decision, does that mean that they will not accept the claim?  If so, what’s the next step?  The tenants appear to have a valid claim.”

          You know, what I’m saying is we’re not blaggers.  You know, we didn’t make all of this stuff up.  We certainly didn’t want all of this stuff to happen; it’s as a result of a very defective, beleaguered building, which still needs fixing.  So Chris Natt says:

“I thought the point of insurance was to cover us against such claims even if the claim comes as a result of our failure to deal with matters expediently.  I’m concerned that we could finish up in court with a very poor defence unless either our insurers meet our claim or we negotiate a settlement.  What do you suggest?”

          Sorry, that was skipping back.  I do apologise for that.  Coming back to our being bullied into a legal battle to get rid of us.  Right.  In April 2008, from Mick Sweeney to Oliver Barnett, on April 9^th at 2.01, April 9^th, 2008.

MS. BHALOO:  Is it 807?  Sorry, what time did you say, 2.01?

MS. FLORES:  It’s at 14.01.

MS. BHALOO:  807.

MS. FLORES:  Page 807, thank you.

JUDGE COWELL:  D3?

MS. BHALOO:  Yes, your Honour.

JUDGE COWELL:  (After a pause):  There we are.

MS. FLORES:  So I think I’m referring to your letter to Mick Sweeney, the director, where you say:

“The current position with regard to Jo’s insurance claim is that she hasn’t produced accounts …”

          So, really, at this stage you seem to be going along with the line of, you know, “They must assess quantum”.  But I’ve read you emails now that suggest that even your own directors think that we have a valid claim.  Do you think that is kind of fair, to be constantly trying to take more money out of the poor person at the end who’s suffered the loss?

A  I could only act on the advice I was given from the brokers and the insurers.

Q  Okay.  And there’s another email.  It’s from Siobhan, 3^rd April 2008.  That, actually, is just from the London Borough of Camden regarding Barry Goodwin, the Gordon Brown involvement, 3^rd April 2008, from siobhan.prill@communities.gov.uk.

MS. BHALOO:  It is 804.

MS. FLORES:  That’s 804.  Thank you, Ms. Bhaloo.  I had written Gordon Brown about the fact that we were a social enterprise and that sort of thing, and he’d asked Barry Goodwin to investigate.  Barry Goodwin went to the London Borough of Camden, who went to yourselves and you had to deal with this, didn’t you, Oliver?

A  Mm’hm.

Q  Was that yes, you did?

A  Yes, yes, yes, yes.

Q  Okay.  And finally in April, 1^st April, at 14.42pm, a letter from Sharon Monk to Matthew Greenhalgh.

MS. BHALOO:  801.

MS. FLORES:  801, thank you.

JUDGE COWELL:  801.

MS. FLORES:  Now, our accounts were produced at this stage and it would seem, in the third paragraph down, that their current reserve was 91,068.

MS. BHALOO:  Sorry, we have emails.  Your accounts were first produced in September 2008.  You got them in September 2008.

MS. FLORES:  It says “accounts”.  That is my note, “Side accounts also produced”.

JUDGE COWELL:  “Hello Matthew”.

A  Your Honour, do you mind if I take a two-minute comfort break to use the gents?

Q  Not at all.

A  Okay.

JUDGE COWELL:  I might do the same.  I’ll come back at quarter past 4.

(Adjourned for a short time)

MS. BHALOO:  I am sorry, I am sure this is entirely my fault for not having explained that we sit late, but Mr. Barnett needs to leave by not later than quarter to 5.

JUDGE COWELL:  I see, yes, thank you.  How many more witnesses do you have?

MS. BHALOO:  That is it.

JUDGE COWELL:  He is the last.

MS. BHALOO:  Yes, factual witness.

Adjourned until the next day

(Cross-examination of Mr. Oliver Barnett by MISS FLORES)

MISS FLORES:  It basically says on the end of this page, have you all found it?

JUDGE COWELL:  Yes. 

MISS FLORES:  It says in the fourth line in, it says:  “I do not need to appoint a legal person to deal with them.  I have already employed Alan Harris, who they say is more than capable to deal with your insurance.”  That is me talking to Plexus Law, not Plexus Law, to Interchange, who is a voluntary organisation that deals with legal advice for voluntary organisations, and Peter Corn advised me – you lot were saying appoint some legal person and that guy told me that I do not need to appoint legal people at all because my loss adjuster was perfectly capable of doing that, and that’s for your information more than anything, Oliver.  On the next page, it’s the same date – no, it’s 28.03.2008, and it’s to Sharon Monk – to Anna.  There’s just two of these.  Has everyone got that, 28.03.2008?

JUDGE COWELL:  Yes.  It is on p.799. 

MISS FLORES:  I think so.  It starts: “Hi Sharon”

JUDGE COWELL:  No.

A            798.

MISS FLORES:  The seventh line down, it says:  “He referred me to Graham Ward and the document provided to him with a plan but it is difficult because it is a new business and it is a question of looking at the anticipated turnover against the actual turnover”.  Then it goes on to say:  “We can consider whether it is worth setting up a tri-party meeting.  That’s again for your information”.  So if we now go to 2008 again.  That’s the, you know, the tri-party meeting.  I’ve only got 18 more documents to go through. 

JUDGE COWELL:  Yes.

MISS FLORES:  They’re all quite quick.

JUDGE COWELL:  Yes. 

MISS FLORES:  On 7^th April 2008, in a letter from Anita to Tisha Shah regarding Oliver ----

JUDGE COWELL:  Is this 805?

MISS FLORES:  It starts: “Anita, Oliver responded to the Councillor Simpson...”

JUDGE COWELL:  Yes, that is it. 

MISS FLORES:  “Anita, Oliver responded to Councillor Simpson on 22^nd November to his letter of 9^th November” and then at the last line it says: “It seems that Councillor Simpson has now decided to write to the Minister”.  Then later, in the next e-mail, it says: “I assume this is to do with Cromer Street, which Oliver is dealing with.  Would you respond urgently?”  Again you were dealing still with our case in April, weren’t you?

A  Yeah.

Q  Yeah.  On 12.06.2008, another Oliver e-mail.  Oliver, why did you think it was fair to ask us – I mean, why did you think it was fair to ask us to fix the floor?

A  If I recall correctly, this was in relation to – because things were taking such a long – things seemed to be taking such a long time that I suggested to you, if   I recall correctly, that you could fix the floor on the basis of a reduced rent.  Is that correct?  Or is this a separate occasion you’re talking about?

Q  No.  Why did you think it was fair for us to fix the floor?

A  Ultimately, the floor was the tenant’s responsibility under the lease. 

Q  That is your answer, but as you know that is utterly incorrect.  That was your belief. 

A  I can only go by my interpretation of the lease. 

Q  Okay.  On 12.06 – obviously, we all know that Jonathan Simpson, the councillor, went to see you and he tried to negotiate the victim of the floor story and the doubling of the rent story.  Just if you could turn to 12.06.2008 at 530.

JUDGE COWELL:  12^th June 2008?

MISS FLORES:  12^th June 2008, yes. 

JUDGE COWELL:  Is this an e-mail?

MISS FLORES:  This is an e-mail from me to Oliver.   It says: “Dear Oliver, I’ve had a chat with Jonathan today and I am advised that One Housing will not fix the floor.  I am therefore willing to sign the same lease in the same rent at £5000 per annum for the next five years.  In exchange I will fix the floor”.   Now, if    I read to that ----

JUDGE COWELL:  It is in this bundle, is it?   Could it be at 850?  That is 12^th June.  It may even be at 851. 

MISS FLORES:  Yeah, 851, your Honour.  It’s “Dear Oliver”.

JUDGE COWELL:  Yes.  This is 850. 

MISS FLORES:  In June, Oliver, after much negotiation to do with what was obviously blackmail, I actually conceded and agreed to be bribed.  The proper word is “improper inducement” to fix the floor.  Why then did you serve me with a Section 25 if I had agreed to fix the floor, which is what you wanted?  Why then did you viciously try to double my rent even though I agreed?

A  If I remember correctly, I gave you a time limited offer and that time period had elapsed, if I recall correctly. 

Q  So did you just expect me to belly up in a week, because you gave me seven days, did you just think I ----

A  That is the purpose of a time limited offer. 

Q  Obviously, you were going to break my hands behind my back and I was just going to go down without a fight.  Do I look like the sort of person that would do that, Oliver?  No.  I went to see a councillor who phoned you, who tried to negotiate, a peaceful negotiation with you, but you still served a Section 25 on me, even though I bowed down to your blackmail.  What kind of person are you?  On July 9^th 2008 you served a Section 25.  It will be in the file.  (After a pause)  Okay, we’ll just move on.  That’s the Section 25 of the Landlord & Tenant Act.  Everyone knows what a Section 25 is.  On 31^st July 2008 you received a letter from our newly appointed very expensive solicitors, who turn out to be godparents of your children, don’t they, Simon (Bircham Dyson Bell OHG's Lead Solicitor).  Anyway, you receive a letter from our very expensive solicitors.  That’s 31^st July 2008. 

JUDGE COWELL:  What were the solicitors called?

MISS FLORES:  They were called Steeles Law, your Honour.

JUDGE COWELL:  Oh, yes.  Steeles Law, yes. 

MISS FLORES:  Just for your reference with the Section 25, it was C2/3/166. 

JUDGE COWELL:  Yes. 

MISS FLORES:  So 31^st July 2008 is the letter from Steeles Law.  Sorry, C2/3/203.  Is that right?  No, tab 3/203. 

JUDGE COWELL:  And there is 205.

MISS FLORES:  Is it 205?

JUDGE COWELL:  The full letter.

MISS FLORES:  It’s 31^st July 2008.

JUDGE COWELL:  Yes.  (After a pause)   21^st August.

MISS FLORES:  It was received on 4^th August.  It’s 31^st July 2008.

JUDGE COWELL:  I will go back a bit. 

MISS FLORES:  A letter from Steeles Law to the defendant.  (After a pause)  It doesn’t seem to be in the disclosure.  It’s not here.  Anyway, if you like I will read it.  It says: “Dear Sir...”  I’ll show you it.  (After a pause)   It’s 277, your Honour, of their disclosure.  

JUDGE COWELL:  277.

MISS FLORES:  When they gave us disclosure, it was un-paginated, it was in the wrong order, but it had lots of circles around it.  So that was one of their disclosures anyway.  It just says, 31^st July from Steeles Law: “Dear Sir, The Ground Floor Shop, 104 Cromer Street, London WC1 “the Premises”.  Lease dated 8^th June 2000 between Community Housing Association Limited and Jo Gavin.  We act for the tenant of the premises, Miss Gavin, and understand that you act for the Community Housing Association.”  It’s actually agreed to Bircham, isn’t it, it’s address to yourself.  “Kindly address all further correspondence with the firm using the above reference.  We have been passed by our client a copy of the client’s Section 25 notice which we will respond to in due course once we have obtained our client’s full instructions”.  So that is their first response on 31^st July.  It’s just a standard response.  On 12^th August 2008 we write another letter asking about the ventilation, as you know, Oliver.  On 14^th August we receive a letter from One Housing Group to ourselves to say we’re in – it’s a rent demand basically.  883 and 884 in D3.  I’m on 10 of 18, so there’s only eight pages left to go you will be happy to hear.  So you are writing to us to say we’re in arrears of £1,220 on each shop at 14^th August. But at that stage the floor wasn’t fixed, so why wasn’t the 'cessor of rent' clause introduced then?

A  Because I didn’t believe 'cessor of rent' applied at the time. 

Q  So it was an insured risk and the shop was unfit for purpose. 

A  That hadn’t been determined. 

Q  Okay.  And the rent on 106, what was the reason we were paying rent on 106 at this stage?

A  For use and occupation of the premises. 

Q  Use and occupation.  So since the building has been condemned as unfit for purpose and breaches all building regulations why were we paying rent when we couldn’t use the building, and it stunk?

A  Because it was not at the time unfit for purpose, and as far as we were concerned it was able to be used. 

Q  Okay.  On 21^st August you receive a letter from our solicitors again, from Steeles Law.  It’s p.203, I think, 203 of the same file.  No, 205.  Sorry, C2, yes, 205.  Sorry, C2, tab 3/205.   (After a pause)  Has everybody got that, yeah?

A  Can you give me the page number?

Q  It’s 205 of tab 3.  Oliver, at this point we’ve actually employed expensive solicitors who are dealing with the matter.  We mentioned the 'cessor of rent' clause.  What more could we have done to stop you breaking in?  In your opinion, what more could we have done?

A  Paid the rent.

Q  Paid the rent.  Okay, paid the rent.  Thank you.  It says in paragraph 4 here: “We are in the process of examining the matter of disrepair in relation to your contractual obligations under the lease and we expect to be in a position to write to you substantively within the next few working days.  In the circumstances, taking the action threatened in your letter would be wholly unreasonable and entirely inappropriate.  If our client is put to taking court action to prevent bailiff action or forfeiture we shall include a claim that you pay our client’s costs and naturally would bring this letter to the attention of the courts”, which is done.  So basically it’s just paid the rent, isn’t it?  Whatever we do to you, you just pay the rent.  Okay.  Three more pages to go.  On 9^th October, which is at ----

JUDGE COWELL:  I think it is at p.209.

MISS FLORES:  209, yeah.  This is a letter from yourself, is it not, of 9^th October, on page – did you say 209, your Honour?

JUDGE COWELL:  Well, there is a letter of 9^th October at 209. 

MISS FLORES:  Yeah.  207 and 208, because they’re in respect of two different premises, and 209, the same letter, and 210. 

JUDGE COWELL:  It looks like a standard form letter. 

MISS FLORES:  It’s a standard letter to say that One Housing Group have taken over the management of your commercial premises. 

JUDGE COWELL:  Yes. 

MISS FLORES:  What does that mean, Oliver?

A  I think these letters – at the time we were – a new computer system was in place, and I think these bank details – I think it was a letter informing all tenants about the way to make payments in the future or not on their particular properties.  I think that’s what the letter was for.  It’s a, you know, a letter that went to every tenant. 

Q  Okay, so that was a standard letter. 

A  Yeah. 

Q  On 24^th October, that will be p.215 of the same file, same tab, we had by this point sacked our very expensive solicitors since they’ve just written us two letters and charge us £7,000, or tried to.  P.215 is a letter that Steeles Law drafted and we simply used.  It’s the exact same words as what Steeles Law had drafted for us before they sent us an extortionate bill. 

JUDGE COWELL:  I see, yes. 

MISS FLORES:  Does everybody want to read that, or shall I read it? 

JUDGE COWELL:  (After a pause)   Yes.

MISS FLORES:  In number 7 it says: “Given the effect of the cessor of rent clause...” this is our solicitors “...we have continued to pay rent when we are not legally obliged to.  We therefore consider that as a landlord you are holding the sum of £31,292...” never mind the interest “...the equivalent of 22 months’ rent and business interruption...” that’s just the basic rent that you’ve already kicked out of us “...and 29.5 months of rent and business interruption at 106/108 Cromer Street on trust for us”.  Why didn’t we get a reply to this letter, Oliver?  I mean, you’ve obviously read it.  Monique made it very clear that she wasn’t aware of it but she knew that you were in the office with Mick and that you had definitely, definitely dealt with it.  We know you deal with these things, so why didn’t we receive a reply?  What could we have done to stop you breaking in?  You know, why didn’t you reply to the letter? 

A  I didn’t know we didn’t reply.  I mean, obviously now you’ve brought it to my attention – I had no idea we hadn’t replied. 

Q  You had no idea?

A  Well, normally we respond to all letters.  I’ve no idea. 

Q  You have no idea.  Okay, so you have no idea but five days later we receive this (notice of eviction), plastered on our doors, and our locks broken ----

JUDGE COWELL:  Five days later?

MISS FLORES:  Five days later. 

JUDGE COWELL:  Yes. 

MISS FLORES:  You go in with drills, break our locks, and put these (notices of eviction) all over our windows.  Do you not think that that’s harassment, Oliver?

A  No, not at all.  It’s peaceful re-entry, as we are entitled to under the lease. 

Q  Really.

A  Yeah.

Q  So you can’t remember why you didn’t respond to a letter.  You seem to think you are above the law, that that’s called peaceful re-entry, when five days before you were sent what is a letter, a dialogue, and you don’t respond. 

A  What are you asking me?

Q  I’m asking you: do you just ignore everybody?

A  No.

Q  Just want them to pay the rent, do anything within your power to make them pay the rent or take their shops off them.  You don’t see that as harassment, Oliver?

A  No, as I said, I don’t see that as harassment. 

Q  No more further questions, your Honour.

JUDGE COWELL:  Thank you. 

MISS BHALOO:  Your Honour, I have no re-examination. 

JUDGE COWELL:  No. 

MISS BHALOO:  Does your Honour have any questions? 

JUDGE COWELL:  No.

MISS BHALOO:  May the witness be released, your Honour? 

JUDGE COWELL:  Yes. 

MISS BHALOO:  Thank you.

JUDGE COWELL:  You can stay or go, whichever you like. 

(Witness released)

'Assessment of rent' was written wrongly in transcript as it is 'cessor of rent' (I corrected this for the purposes of accuracy in this document)